{"document_id": "1977_2_825_827_EN", "year": 1977, "text": "RANGASWAMI, THE TEXTILE COMMISSIONER & ORS.\n\nSUGAR TEXTILE MILLS (P) LID. & ANOTHER\n\nJanuary 27, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nCoton Textiles (Control) Order 1948, clause 20(1)-Whether the provisions make it obligatory upon the Textile Commissioner to specify the period of operation of his direction's-Meaning of thi! word \"may\",\n\nlause 20 of the Cotton Textiles (Control) Order, 1948 empoweni the\n\nTextile Commissioner, having regard to the capacity of the producer to produce cloth and yarn of different description or specification and to the needs of the general public, to issue from time to time such directions in writin.11 to any manu- C facturer or manufacturers generally regarding the class or specifications of cloth or yarn and the maximum or the minimum quantities thereof which they shall or shall not produce during such periods as may be specified in the directions.\n\nThe respondents' challenge to the vires of the notification issued by the appellant which prohibited the printing of any border or heading on sarees etc. for an indefinite period was accepted by the Gujarat High Court.\n\nDismissing the appeals by special leave, the Court,\n\nHELD : ( 1) The impugned notification in so far as it prohibits the printin& D of any border and heading on sarees etc., for an indefinite period ie ultra vire.r clause 20 of the Cotton Textiles (Control) Order 194g since the aforesaid clause casts an obligation or a duty upon the Textile Commissioner to speciy the period\n\nduring which the prohibition shall remain in force.\n\n[827 BC]\n\n(2) It is well settled that the word \"may\" is capable of meaning must\" or \"shall\" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation the word \"may\" which denotes E discretion should be construed to mean a command.\n\nConsidering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, it is clear that the power conferred on the Textile Commissioner in the Cotton Textile (Control) Order 1948 to issue directiom is coupled with a duty to specify the particular period for which the directiomi , shall be operative\" [826 F-G]\n\nState of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197 @J 202, princi- F pies reiterated.\n\nCIVJL APPELLATE JURISDICTION : Civil Appeal No. 1182 of 1972.\n\nAppeal by Special Leave from the Judgment and Order dated the 4-8-71 of the Gujarat High Court in S.C.A. No. 1346/69 and G\n\nCNIL APPELLATE JURISDICTION: Civil Appeals Nos. 1545-1546 of 1972.\n\nAppeals by Special Leave from the Judgment and Order dated the 4-8-1971 of the Gujarat High Court in S.C.A. Nos. 972 and 1527 of 1970 respectively.\n\nSUPREME C:OURT REPORTS\n\n[1977] 2 S.C.R.\n\nV. P. Raman, Addi. Sol. Gen., S. N. Prasad and Girish Chandra for the Appellant in CA 1182/72 and CAS.1545-46/72. ~\n\nV. M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P. C_ Kapoor for Respondents in C.A. 1182/72.\n\nV. N. Ganpule, A. K. Srivastava and Vineet Kumar for RR.\n\nNo. 1 in C.As. 1545-46/72.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nUnder the power conferred by Section 3 of the Essential Suppiies (Temporary Powers) Act, 1946, the Central Government issued an Order called \"The Cotton Textiles (Control) Order, 1948\".\n\nClause 20 of that Order, as amended, reads thus :-\n\n\"20( 1) The Textile Commisisoner may from time to time issue directions in writing to any manufacturer or class of manufacturers or the manufacturers generally regarding the classes or specifications of cloth or yarn, and the maximum or the minimum quantities thereof, which they shall or sha,11 not produce during such periods as n:iay be specified in the directions, and they shall comply with such directions.\n\n20(2) In the exercise of the powers conferred upon him by sub-clause (1) the Textile Commissioner shall have regard to the capacity of the producer to produce cloth and yarn of different descriptions or specifications and to the. needs of the general public.\" ...\n\nThe question for our determination in these appeals is whether, if the Textile Commissioner decides to issue appropriate directions to any manufacturer or class of manufacturers, it is obligatory upon him to specify therein the period for which the directions will remain in operation.\n\nAs hold by this Court in State of Uttt!r Pradesh v. }ogendra -..Singh,(1) it is well settled that the\" word \"may\" is capable of meaning \"must\" or \"shall\" in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word \"may\" which denotes discretion should be construed to mean ·a command.\n\nConsidering the purpose of the relev_ant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled w:th the duty to specify the particular period for which the directions shall be operative.\n\nDirections of the kind envisaged by clause 20 are influenced and justified oy exigencies which render it imperative that the directions be revie\\\\-. d from time to time.\n\nThat becomes feasible only if the directions as . mlted expressly to a determinate period of\n\n\nRANGASWAMY, TEXT. COMMR. v. SUGAR TEXTILE MILL!! 827 (Chandrachud. /.) time at the end of which a fresh review of facts and circumstances A becomes obligatory.\n\nThere is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived.\n\nBesides, the manufacturers must know, in order that they may organize their business in their own interest as well as in . the interest of the community at large, as to how long any particular embargo is going to be operative.\n\nAccordingly, we affirm the judgment of the High Court though on the ground only that the impugned Notification in so far as it prohibits the printing of any border or heading on sarees etc. for an indefinite period is ultra vires clause 20 of the Cotton Textiles (Control) Order, 1948, ince the aforesaid clause casts an obligation or a. duty upon the Textile Commissioner to specify the period f! during which the prohibition shall remain in force.\n\nWe express no opinidn on the other points, including Point No. 6 urged before the High Court for its consideration.\n\nThe appeals are accordingly dismissed.\n\nThe appellants will pay one set of costs of these appeals to the respondents.\n\nS.R.\n\nAppeals disniised.\n\n5-206501/77", "total_entities": 24, "entities": [{"text": "RANGASWAMI, THE TEXTILE COMMISSIONER & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "RANGASWAMI, THE TEXTILE COMMISSIONER & ORS", "offset_not_found": false}}, {"text": "SUGAR TEXTILE MILLS (P) LID. & ANOTHER", "label": "RESPONDENT", "start_char": 45, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "SUGAR TEXTILE MILLS (P) LTD. & ANOTHER", "offset_not_found": false}}, {"text": "January 27, 1977", "label": "DATE", "start_char": 85, "end_char": 101, "source": "ner", "metadata": {"in_sentence": "ANOTHER\n\nJanuary 27, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 104, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 123, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "clause 20(1)", "label": "PROVISION", "start_char": 200, "end_char": 212, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 1121, "end_char": 1139, "source": "ner", "metadata": {"in_sentence": "for an indefinite period was accepted by the Gujarat High Court."}}, {"text": "clause 20", "label": "PROVISION", "start_char": 1357, "end_char": 1366, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 2 SCR 197", "label": "CASE_CITATION", "start_char": 2285, "end_char": 2301, "source": "regex", "metadata": {}}, {"text": "V. P. Raman", "label": "OTHER_PERSON", "start_char": 2783, "end_char": 2794, "source": "ner", "metadata": {"in_sentence": "SUPREME C:OURT REPORTS\n\n[1977] 2 S.C.R.\n\nV. P. Raman, Addi."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 2813, "end_char": 2825, "source": "ner", "metadata": {"in_sentence": "Gen., S. N. Prasad and Girish Chandra for the Appellant in CA 1182/72 and CAS.1545-46/72."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 2830, "end_char": 2844, "source": "ner", "metadata": {"in_sentence": "Gen., S. N. Prasad and Girish Chandra for the Appellant in CA 1182/72 and CAS.1545-46/72."}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 2900, "end_char": 2914, "source": "ner", "metadata": {"in_sentence": "~\n\nV. M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P. C_ Kapoor for Respondents in C.A. 1182/72."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 2916, "end_char": 2929, "source": "ner", "metadata": {"in_sentence": "~\n\nV. M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P. C_ Kapoor for Respondents in C.A. 1182/72."}}, {"text": "M Tarkunde", "label": "LAWYER", "start_char": 2938, "end_char": 2948, "source": "ner", "metadata": {"in_sentence": "~\n\nV. M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P. C_ Kapoor for Respondents in C.A. 1182/72."}}, {"text": "P. C_ Kapoor", "label": "LAWYER", "start_char": 2953, "end_char": 2965, "source": "ner", "metadata": {"in_sentence": "~\n\nV. M. Tarkunde, V. N. Ganpule, (Miss) M Tarkunde and P. C_ Kapoor for Respondents in C.A. 1182/72."}}, {"text": "A. K. Srivastava", "label": "LAWYER", "start_char": 3015, "end_char": 3031, "source": "ner", "metadata": {"in_sentence": "V. N. Ganpule, A. K. Srivastava and Vineet Kumar for RR."}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 3036, "end_char": 3048, "source": "ner", "metadata": {"in_sentence": "V. N. Ganpule, A. K. Srivastava and Vineet Kumar for RR."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 3130, "end_char": 3141, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nUnder the power conferred by Section 3 of the Essential Suppiies (Temporary Powers) Act, 1946, the Central Government issued an Order called \"The Cotton Textiles (Control) Order, 1948\"."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 3176, "end_char": 3185, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 3246, "end_char": 3264, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nUnder the power conferred by Section 3 of the Essential Suppiies (Temporary Powers) Act, 1946, the Central Government issued an Order called \"The Cotton Textiles (Control) Order, 1948\"."}}, {"text": "Clause 20", "label": "PROVISION", "start_char": 3334, "end_char": 3343, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 20", "label": "PROVISION", "start_char": 5071, "end_char": 5080, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 20", "label": "PROVISION", "start_char": 6121, "end_char": 6130, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_828_861_EN", "year": 1977, "text": "FATEHCHAND HIMMATLAL & OTHERS\n\nSTATE OF MAHARASHTRA ETC.\n\nJanuary 28, 1977\n\n[A. N. RAY, C.J., M. H. BEG, P. N. BHAGWATI, v. R. KRISHNA IYER\n\nAND S. M. FAZAL ALI, JJ.]\n\nConstitution of India-Article 301-304(b)-Frudom of tradt and commerce-Reasonable re3trlctions.\n\nA.rticie 252, 254(2), Seventll Schedule, List !, Entry 52, 97, List ll Entry 30.\n\nDoctrine of occupied field-State maki111! a law on a differelll topic but covering i11 part the same area-Whether irreconcilable confUcts nectnaT)'- Whether incidental provisions can be struck down-Gold Colllrol Act 1968- Conf/ict between a Central law and a State /aw-Effect of the assent of the President.\n\nInterpretation of legislative entries in the Sevellllz Schedule, whether broad and liberal construction to be adopted.-Sevellflz Schedule List II Entry 30, meaning of money lending and money lenders and relief of agricultural indebtedness-Whether impugned Act is covered by this Entry.\n\nMaharashtra Debt Relief Act 1976-Constitutional validity of-Whether the State legislature has legislative competence-Whether violati>\"e of Article 304(b )-Whether the freedom of trade is absolute-Whether money-lendinJJ to the little pedsants, landless tiller, bonded labour, the pavement tenant and the slum dweller a trade-Whether every systematic profit oriented activity, however, sinister suppressive or socially diabolic can be said to be trade-Whether the test of reasonableness is to be applied in vacuum or in the context of life's realities.\n\nPerspective of poverty jurisprudence-Whether different from the canolls of traditional Anglo-Indian jurisprudence-Whether while testing constitutionality the principles of developmental jurispmdence must come into play-Procedural\n\nunreasonableness-Whether the burden of proving debtors' financial position 011 the lender-Issuance of certificate in favour of debtor having presumptive\n\niaiue without hearinf! the creditor-Absence of appeal-Obligation of the creditor to move the machinery-Deposit of the ornaments before the proceedings\n\ncan commence-Whether reasonable-Adoption of summary proceedings, whether valid.\n\nThe Maharashtra Legislature passed the Maharashtra Debt Relief Act. 1976.\n\nBy the said Act the existing debts of some classes of some indigents have been liquidated. The Act is a temporary measure. The validity of the said Act was challenged in the present writ petition and appeals on the following grounds :\n\n( 1 ) Money lending was a trade covered by Article 304 of the Constitu-\n\nJ.; tion.\n\nThe restriction both substantive and procedural imposed by the impugned Act are not reasonable within the meaning of Article 304(b).\n\n(2) The State Legislature has no legislative competence to enact the statute.\n\n(3) So far as the Gold ornaments are concerned the field is occupied by the Gold Control Act 1968 passed by the Parliament.\n\nThere fore, inasmuch as the said Act deals with Goid Ornaments it is Leyond the legislative competence.\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan lyr, !.) 829\n\nThe respondents contended that :\n\n( l) The money lending in the present case was not a trade.\n\n(2) Even if it was trade the restrictions imposed by the statute are reasonable.\n\n(3)\n\n(4)\n\n(S)\n\nThe State Legislature is competent to enact the impugned Act.\n\nThe doctrine of occupied field has no application.\n\nThe Gold Control Act and the impugned Act deal with two completely different situations.\n\n(6) ln any case, there is no inconsistency between the two Acts.\n\nUpholding the validity of the Act, HELD : (1) It is cruel legal jike to legitimate as trn; le this age and bleeding business whereby the little peasant, the landless tiller, the bonded labour, the pavement tenant and the slum dweller born and buried during the Raj and the Republic in chill penury. [836 B-C]\n\nAtiabari Tea Co. (1961) 1 SCR 809, 843, referred to.\n\n(2) The topics of legislation listed in the 7th Schedule must receive a large and liberal and realistic interrelation. [836 E]\n\n(3) The freedom while it is wide is not absolute.\n\nEvery systematic, profit oriented activity, however sinster, suppressive or socially diabolc, cannot ipso facto exalt itself into a trade.\n\nDealings of Banks and similar institutions having some nexus with trade, actual or potential, may itself be trade or intercourse.\n\nAll modern commercial credit and financial dealings amount to trade. Howevet\\ the village oasea age old, feudal pattern of money lending to those below the subsistenc\" level to the village artisan, the bonded labourer, the marginal ttller and the broken farmer, who borrows and repays in perpetual labour, hereditary service, periodical delivery of grain and unvouchered usurious interest is a countryside incubus.\n\nSuch debts ever swell, never shrink, such captive debtors never become quits.\n\nSuch countryside creditors never get off the backs of tnc victims.\n\n[840 D. 841 F-HJ Ibrahim (1970) 3 SCR 498, referred to.\n\nAutomobile Transport (1963) 1 SCR 491, followed.\n\n( 4 ). The economic literature, offici_al and other, on agricultural a-nd working class indebtedness is escalating and disturbing.\n\nIndeed the money lender is an oppressive component of the scheme. [844 GJ\n\n(5) The test of reasonableness is not to be applied in vacuum but in the contest of life's realities. The Legislature was confronted with the cruel species of money-lenders.\n\nThe life of the Jaw is not noisis but actual experience.\n\nThe perspective of poverty jurisprudence is radically different from the canons :>nd values of traditional Anglo-Indian Jurisprudence.\n\nThe subject matter of the impugned legislation is indebtedness, the benr.ficiaries are petty farmers, manual workers and allied categories steeped in. debt and bonded to the money lending tribe.\n\nSo, in passing on its constitutionality, the principles of Developmental Jurisprudence must come into play. [846 B, 848 G-H]\n\n(6) The exemption granted by the statute to credit instituti??S and banks is reasonable because liabilities due to Government, local a~1thonbes an~ ot!J.er credit institutions are not tainted with exploitation of. the debtor.\n\nL1ke\\\".1se, debts due to banking companies do not ordinary Sl!fl'er from ove.r-reachmg, unscrupulous or harsh treatment.\n\nFinanci:; l institul10ns have until recently treated the village and urban worker and petty farmer as untonchables.\n\n[849 E-HJ\n\n\\ 7) Maybe some stray money-lenders may be good souls but the Legislature H cannot easily make meticulous exceptions and has to l?roceed on broad categorisations, not singul<>~ individualisaHons.\n\nThe crd1tors . have not placed material before the Court to contradict the presumptton wh1c; h must be made\n\n830 SUPREME c:;; ouRT REPORTS [1977] 2 s.c.R.\n\nA in favour of the legislative judgment.\n\nSince nice distinctions to suit every kindly creditor is beyond the law-making process, the court has to uphold the grouping as reasonable and the restrictions as justified in the circumstances of the case.\n\n[850 CE]\n\nAustralian Bank Natio11a/1isation Case : Co111111onwealt/1 of Australia v.\n\nBank of New South Wales: 1950 A.C. 235, 311, approved.\n\n(8) The Court negatived the contention of the petitione,. that there was procedural unreasonableness in the Act.\n\nThe section which imposes the obligation on the money lender to prove the debtor's financial position, the issuance of a certificate in favour of the debtor having a presumptive value without hearing the creditor, the absence of appeal, obligation of the creditor to move the machinery and the period of 7 days and the deposit of the ornaments beforethe proceedings can commence are all reasonable in the circumstances of the case.\n\nViewed in the abstract, those grievances look genuine but when we get down to the reality, nothiilg so exists in the so-called provision.\n\nThe provision requiring the creditor to move and not the debtor is reasonable because between the two. the money-lender is sure to be far shrewder and otherwise more capable of initiating proceedings.\n\nTo cast that obligation on the debtor when in bulk of cases he is the village artisan, landless labourer or industrial worker is to deny relief in effect while bestowing it in the book.\n\nThere is nothing objectionable in the debtor seeking a certificate of qualification from the sm111!\n\nofficer of the area. The officer or the Government servant possesses familiarity with the where~'iihal and the whereabouts of the persons.\n\nHearing the creditor before the certificate is issued would merely prolong and puzzle the proceedings.\n\nThe creditor does not suffer because the certificate that the applicant is a debto1 raises only a rebuttable presumption and it is idle to argue that the creditor has no means of disproving the income or assets of his debtor.\n\nOrdinarily, the money-lender and the petty borrower live in and around the same neighbourhood. As proforma of the certificate to be issued needs mentioning several particulars these have to be filled by the certifying officer who has, therefore. to make the necessary enquiries from and about the debtor. Authorised Officer is one who exercises quasi-judicial powers even otherwise on the Revenue side.\n\nThe adoption of the procedure under the Maharashtra Land Revenue Code is a fair safeguard although it is a summary procedure.\n\nTo equate swnmary with arbitrary is contrary to common experience. The obligation for the production of the pli:odged article by the creditor as a preliminary to the institution of the proceedings is also a just measure so that when a decision is reached the article may be returned to the debtor in the event of the verdict going ill his favour. Where the subject matter is substantial and fraught with serious consequences and complicated questions are litigatively terminated summarily, without a second look at the findings by an appellate body it may be that unfairness is inscribed on the face of the law but where little men with petty debts, legally illiterate and otherwise handicapped are pitted against the money-lenders. absence about appeal cannot invalidate the statute.\n\nWhere the enquiry is a travesty of justi.ce or violation of provisions, where the finding is a perversity of adjudication or fraud on power the High Court is not powerless to grant remedy even after the recent package of constitutional amendments.\n\n[852 A-H, 853 A-H, 854 A-BJ\n\n(9) Entry 30 in List II in the 7th Schedule is money lending and money lenders; relief of agricultural indebtedness. If common sense and common English are components of Constitutional construction relief against loans by scaling down, discharging, reducing interest and principal, and staying the realisation of debts will among other things fall squarely within the topic. [854 F-HJ\n\n{10) The argument that the subject matter of the present legislation would foll under the residuary power under Entry 97 of List I is negatived. f855 Bl\n\n( 11) Where Parliament has made a law under Etry 52 of List I !lnd in the course of it framed incidental provisions affecting gold loans and money lending business involving gold ornaments.\n\nThe State making a law on 2 different topic but covering in part the same area of gold loans must not go into irreconcilable conflicts.\n\nThe doctrine of occupied field does uot totally\n\n- JIATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) 8 31\n\ndeprive the State Legislature from making any Jaw incidentally referable to A gold.\n\nIn the event of a plain conflict the State Law must step down unliliiS Aricle 252(2) can be invoked.\n\nIn that case the State Jaw would still .prevail if the assent of the President has been obtained. There is no conflict between the Gold Control Act and the impugned Act.\n\nSecondly, the subjects of both the legislations can be traced to the Concurrent List and Article 254(2) vali- .. dates within the State the operation of the impugned Act since the assent of the President has been obtafoed.\n\n[858 B-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals No. 632 to 646 B of 1976. ·\n\n(From the Judgment and Order dated the 22/23/26 /27th of April, 1976 of the Bombay High Court in S.C.A. Nos. 997, 2128, 2773, 2077, 2065, 2045, 1172, 1193, 1195, 1196, 1199, 1200, 1210/ 75 and 2050 & 2071 of 1976) and\n\nCIVIL APPEALS NOS. 655 & 1286 of 1976\n\n(From.the Judgment and Order dated the 14-5-1976, 23rd, 24th, 27th April, 1976 of the Bombay High Court in S.C.A. No. 2985 of 1976 and Misc. Petition 4 of 1976) and\n\nWRIT PETITIONS NOS. 98, 102-107, 110-113 & 115-120 of 1976 Under article 32 of the Constitution of India)\n\nB. Sen, (in CA. 632) Y. S. Chitale, (in CA. 633) Sachin Chowdhary, (in CA. 634) F. S. Nariman and R. N. Bennerjee, Adv. (in CA. 637) H. P. Shah, (in CAs. 632-638) A. J. Rana, (in CA. 635) P. H. Parekh &: Miss Manju Jelly, with them, for the appellants in CAs. 632-637\n\nVallabhadas Mohta, Sardar Bahadur- Saharya & Vishnu Bahadur Saharya, for the appellants in CAs. 638-644 & 644.\n\nJ. L. Nain, A. J. Rann, Janendra Lal, B. R. Agarwala and Gagra.: & Co., with him for the appellants in CAs 645 & 646 except for appellant No. 52 in CA. 646\n\nF. S. Nariman, R. N. Banerjee, 1. B. Dadachanji & K. J. John with him for the appellant No. 62 in 646170\n\nMadhukar Soochak, K. Rajendra Chowdhary, K. A. Shah and (Mrs.) Veena Devi Khanna, Advocates for the Appellant in CA. 1286176\n\nS. K. Dholakia, V. J. Kankaria & R. C. Bhatia, for the petitioners in all the Writ Petitions.\n\nNiren De, Attorney Gnl. (only in CAs. 632, 638 and W.P. No. 98/76 l. W. Adik, Adv. Genl. of Maharashtra, M. N. Shroff, for the RespGndents in the appeals and Writ Petitions\n\nM. P. Chandrakantraj Urs and N. Nettar, for the intervener in CA. 632176 (State of Karnataka)\n\nA K. Parasaran, Adv. Genl.\n\nTamil Nadu. A. V.\n\nRangam, V.\n\nSathiade.v and (Miss) A. Subhashini, in the for the intervener in CA. 632 (State of Tamil Nadu;\n\nK. Rajendra Chowdhary, for the interveners/ Applicants A Ratnasabhapat!i and Jayalakshimi & Co.\n\nM/s. Jeshtmal, K. R. Chowdhary, Mrs. Vena Devi Khanna, for the intervener/applicant N. Dhanraj.\n\nB. A. Desai, S. C. Agarwala and V. J. Francis, for Respondents 4 & 5 in CA. 1286/76.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThe distance between societal realities and constitutional dilettantism often makes for the dillemma of statutory validity and the arguments addressed in the present batch of certificated appeals and writ petitions evidence this forensic quandary. Likewise, the proximity between rural-cum-clum economics and social relief legislation makes for veering away from verbal obsessions in legal construction.\n\nA constitution is the documentation of the founding faiths of a nation and the fundamental directions for their fulfilment.\n\nSo much so, an organic, not pedantic, approach to interpretation, must guide the judicial process.\n\nThe healing art of harmonious construction, not the tempting game of hair-splitting, promotes the rhythm of the rule of law.\n\nThese prologuic observations made, we proceed to deal with the common subject matter of the appeals and the writ petitions.\n\nA bunch of counsel, led by Shri Nariman and seconded by Shri B. Sen, have lashed out against the vires of the Maharashtra Debt Relief Act, 1976 (for short, the Debt Act).\n\nThe former has focused on the fatal flaw in the Act based on Art. 301 of the Constitution and the latter has concentrated his fire on the incompetency of the State Legislature to enact the Debt Act.\n\nA plurality of submissions by a procession of lawyers has followed, although the principal points have been comprehensively covered by Shri Nariman and Shri B. Sen.\n\nTo encore is not to augment, and yet, some counsel, who had not much to supplement, claimed the right to be heard and exercised it ad Ubiem, essaying what had already been forcefully urged and forgetting that a fine, fresh presentation of a case is apt to be staled by a second version of it and pejorated by a third repetition.\n\nWhile in constitutional issues of great moment this Court is reluctant to ratio oral submission it is important, by comity of the Bench and the Bar, to conserve judicial time in the name of public justice so that. internal allocations avoiding over-lapping may be organised among many counsel who may appear in :; everal appeals, substantially dealing with the same points.\n\nA happy husbandry of advocacy is helpful for judge and lawyer alike and to streamline forensic businf)ss is the joint responsibility of both the limbs of the institution of justice.\n\nBack to the beginning.\n\nArt. 301 of the Constitution mandates .\n\nFATEHCIIAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) 833.\n\n\"301. Freedom of trade, commerce and intercourse.-·~\n\n-· --- Subject to the other provisions of this Part, trade, com- ·-. merce and intercourse throughout the territory of India shall be free.\" ·\n\nWe may also read the cognate provision viz., Art. 304 (b) :\n\n\"304 (b). RestrictioM on trade, commerce and among States.-\n\nNotwithstanding anything in Article 301 or Article 303, the Legfslature of a State may by law-\n\nX X X X\n\n(b) impose such reasonable restrictions on the freedom of c trade, commerce or intercourse with or within that State as may be required in the public interest :\n\nProvided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.\"\n\nThe unmincing submission of Shri Nariman is that money-ending is very much a trade, that the Debt Act deals drastically with moneylenders in defiance of Art. 301 and, since the manacles on moneylenders and money-lending are unreasonably harsh and callously indiscriminate, the 'freedom\" which belongs constitutionally to professional money-lenders is breached by the statutory liquidation of their loans.\n\nNor can the invalidatory consequence of this violation be obviated by Art. 304(b). This latter provision salvages statutes which contra- , ene freedom of trade, commerce and inter-course only if they possess the vinue.; of . reasonableness and public interest. The injustice of wiping out the debts of marginal farmers, rural artisans, rural labourers and workers as provided in the scheme of the Act was anathematised by Shri Nariman as an unwarrantedly unreasonable annihilation, of the trade and its capital.\n\nWe will deal with this contention presently but we may merely mention for later discussion another short, lethal objection to a part of the law, put forward by counsel.\n\nHe stated that there was legislative incompetency for the State Legislature because it had forfeited the power to legislate on money-lending where gold loans were involved, since Parliament had occupied the field under Entry 52 of List I by enacting the Gold Control Act, 1968, and had thereby elbowed out the State Legislature from that field. ·\n\nConsiderable eclectic study of English,· Aiistralian and American cases was displayed in the course of arguments, reverberating in Indian . precedents dealing with Part XIII of the Constitution.\n\nOf course, we will refer to them with pertinent brevity, although we must administer to ourselves the caveat that the same words used in constitutional enactments of various nations may bear different connotations\n\nA and when Courts are called upon to interpret them they must :u:climatize the expressions to the particular conditions prevailing . in the country concerned.\n\nDifferent lands and life-styles, di1Ierent value systems and economic solutions, di1Ierent social milieus and thought- ways, different subject matters and human categories-these vital Variables influence statutory. projects and interpretations, although lexicographic aids and understandings in alien jurisdictions may also be B looked into for light, but not beyond that. ··\n\nThe constitutional guarantee of the commercial mobility and unity of the country in Art. 301 is sought to be made the major sanctuary of 'money-lenders' whose 'freedom' to lend and thereby end the lendce is, by legislative judgment, hand-cuffed.\n\nBefore unravelling the provisions of. the Debt Act, we must first found ourselves on the quintes- C sentials of Art. 301 and the juristic and economic basics implied in . that provision.\n\nWe are not construing a petrified legal parchment but reading the Iuscent lines of a human text with a national mission.\n\nWe must never forget that the life of the suprema lex is nourished by the social setting, that juridical abstractions and theoretical conceptions may be fascinating forensics but jejune jurisprudence, if the raw Indian realities are slurred over.\n\nWe are expounding the Constitu- D tion of a nation whose people hunger for a full life for each, and therefore, a perception of the signature of social justice writ on it is imperative. 'Nothing is more certain in modern society', declared the American Supreme Court at mid-century, 'than the principle that there are not absolutes'. Legal Einsteinism guides the Court, not doctrinal absolutes, as we will presently discuss.\n\nE Since Art. 301 has loomed laige in the debate at the bar, it is\n\npertinent to ask what is its object and design. . For, if the impugnd legislation does violate Art. 301, it must perish unless rescued by Art.\n\n304(b).\n\nThis Court, in Atiabari Tea Co. ('), tracing the roots of Art. 301, observed :\n\n\"Let us first recall the political and costitutional background of Part XIII. It is a matter of common I>nowledge\n\nthat, before the Constitution was adopted, neatly two-thirds of the territory of India was subject to British Rule and was then . . known as British India, while the remaining part of the territory of India was governed by Indian Princes and it consisted of several Indian States.\n\nA large number of these States claimed sovereign rights within the limitations imposed by the paramount power in that behalf, as they purported t<> exercise their legislative power of imposing taxes in respect of trade and co=erce which inevitably led to the erection of customs barriers between themselves and the rest of India.\n\nIn the matter of such barriers British India was governed by the provisions of s. 297 of the Constitution Act, 1935.\n\nTe>· the provisions of this section we will have occasion later. to.\n\n(!) (1961) 1 S.C.R. 809, 843 •..\n\nVATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) 835\n\nrefer during the course of this judgment.\n\nThus, prior to 1950 the flow of trade and commerce was impeded at several . points which constituted the boundaries of Indian States.\n\nAfter India .attained political freedom in 194 7 and before the Constitution was adopted the historical process of th~ merger and the integration of the several Indian States with the rest of the country was speedily accomplished with the result that when the Constitution was first passed the territories of India consisted of Part A States which broadly stated represented the Provinces in British India, and Part B States which were made up of Indian States.\n\nThis merger or integration of Indian States with the Union of India was preceded by the merger and consolidation of some of the States inter se between themselves.\n\nIt is with the knowledge of the trade barriers which had been raised by the Indian States in exercise of their legislative powers that the Constitution-makers framed the Articles in Part XIII. \"The main object of Art. 301 obviously was to allow the free flow of the stream of trade, commerce and intercourse throughout the territory of India.\"\n\nIt is fair to realise that Art. 301 springs from Indian history and hope.\n\nWe may recall the political and constitutional background of Part XIII-the divided days of British rule, the united aspirations of Independent India, the parochial pressures and regional pulls leading inevitably to the erection of fiscal barriers and hampering of economic oneness.\n\nThe integration of India was not merely a historical process but a political, social and economic necessity.\n\nGajendragadkar J., in Atiabari Tea Co. (supra) pointed out :\n\n\"In drafting the relevant Articles of Part XIII the makers of the Constitution were fully conscious that economic unity was absolutely essential for the stablity and progress of the federal polity which had been adopted by the Constitution for the governance of the country.\n\nPolitical freedom which had been won, and political unity which had been accomplished by the Constitution, had to be sustained and strengthened by the bond of economic unity.\" (p. 843)\n\n \"Free movement and exchange of goods throughout the territory of India is essential for the economy of the nation and for sustaining and improving living standards of the country.\n\nThe provision contained in Art. 301 guaranteeing the freedom of trade, commerce and intercourse is not a declaration of a mere platitude, or the expression of a pious hope of a declaratory character; it is not also a mere statement of a directive principle of State policy; it embodies and enshrines a principle of paramount importance that the economic unity of the country will provide the main sustaining force for the 'stability and progress of the political and cultural unity of the country.\" ( p. 844) '\n\n. Such eing te perspective, the judicial sights must be set high while read1g ~1cle. 301.\n\nSocial solidarity is a human reality, not\n\nere ?Onst1tutional. piety, and a non-exploitative economic order outlm~ m. Art. 3~, 1s the bedock of a contented and united society.\n\nSocial disorder 1s the bete noire of commerce and trade.\n\nAll this is\n\nnon-controvesial ground but the learned Attorney General contests the very applicability of Art. 301 to money-lenders and moneylending vis a vis the humble beneficiaries of the statute viz., the marginal farmers, rural artisans, rural labourers, workers 'and small farmers.\n\nIt is a cruel legal joke to legitimate as trade this age-old bleeding business of agrestic India whereby the little peasant. the landless tiller, the bonded labourer, the pavement tenant and the slum dweller have been born and buried during the Raj and the Republic in chill penury.\n\nIs trade in human bondage to be dignified legaUy, betraying the proletarian generation?\n\nFor whom do the constitutional bells of the socialist Republic toll?\n\nTherefore, argues the Attorney General, it is juristic blasphemy to call 'unscrupulous moneylending' -a rural spectre which stalks Maharashtra-a trade at all.\n\nThese chronic operations, socially obnoxious and economically inhuman, cannot be recognised as licit and wear the armour of Art. 301, for this preliminary reason.\n\nNot all systematic economic activity is trade.\n\nSinister, socially shocking ones, are not.\n\nShri Nariman has counter-asserted, backed by a profusion of prece-· dents, that money-lending in the modem complexities of business life is a lubricant for the wheels of commerce and has been treated .as trade.\n\nIt is the life-blood of business.\n\nIt needs no argument to say that the topics of legislation, listeq in the Seventh Schedule, must receive a large and liberal, yet realistic, interpretation.\n\nSo understood, the expression 'trade' in its wide import, covers not merely 'buying and selling of goods' but trading facilities like advances, overdrafts, mercantile documents, trading intelligence, telegraphic and telephonic communications, banking and insurance and many oilier sophisticated operations connected with and essential for commerce and intercourse.\n\nEven travel facilities in certain circumstances have a nexus with trade and commerce and are part of them.\n\nLearned counsel referred to Ibrahim(') wherein this Court has referred to the corresponding provisions in the Australian Constitution and imparted a comprehensive meaning to 'trade'.\n\nAmerican and Australian caselaw, Halsbury and the Judicial Committee, were read with special emphasis on the amplitude of the expression 'trade'.\n\nAn inventory of Indian statutes wherein 'money-lending' as a business was mentioned and licensed, was also brought to our notice.\n\nIndeed, this wealth of legal literature may well be held o make 01;1t that mone}'.-lendin~,\n\nbanking, insurance and other financial transactions, commerc1l credit\n\nand mercantile advances may, conceptually, be charactensed as 'business'.\n\nMercantile credit, money-lending, pawn-broking and advances on pledges are business.\n\nOthee, the coerce of O';!r country will grind to a halt. an we conceive .of trad.e w1thou! credit, or commerce without mercantile documents, d1scountmg, lendmg and\n\n(1) [1970] 3 S.C.R. 498.\n\n., ..\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) 837\n\nnegotiable paper?\n\nTo deny to monetary dealings the status of trade is to push India into the medieval age : Broadly viewed, money-lending amongst the commercial community is integral to trade and is trade.\n\nSo far we go with Shri Nariman and others who have urged the same point with allomorphic modifications.\n\nThe learned Attorney General's stance is radical and rooted in B the rural bondage to break which is the mission of this legislation. If accepted, it will mean that money-lending, in the limited statutory se~ and projected on the Indian rural-urban screen vis a vlv the cxplmted people below-the-poverty-line, cannot be regarded as 'trade'.\n\nIt is apt to be reminded of the then famous epigram of Frederick W. Maitland : \"A woman can never be outlawed, for a woman is C never in law.\" Money-lending-is it in law at all?\n\nNo trade, no Art. 301, and so the baptismal certificate that Art. 301 insists upon from the economic activity that seeks its 'free' blessings is that it is 'trade, commerce or intercourse'.\n\nThus the critical question is as to whether money-lending and the class of money-lenders who have been preying upon the proletarian and D near-proletarian segments of Indian society for generations may be legally legitimated as 'traders' or 'businessmen'.\n\nThis is not an abstract legal question turning) on semantic exercises but a living economic question of incurable indebtedness.\n\nBlood, sweat and tears animate amelioratory law which exiles literal interpretation. The heartbeats of the Debt Act, according to the State counsel, cannot be felt without humanistic insight by first ostracising, in the name of social E order, the die-hard, death-grip practices which have defied legislative policing in the past and have kept, in chronic servitude, vast numbers of the Indian agrarian community and working class. But if, as urged by the opposition, the law flatly flouts Art. 301, it fails.\n\nThe rule of law, for functional success, must run close to the rule of life. Therefore, constitutional assays must be on the touchstone of F societal factors. So we cannot embark upon a study of the working of stock-exchanges, the dependence of industry and business on credit and\n\nkey-loans, the role of pledges in financing commercial activity, when the chalfenge is to an economic legislation dealing with the lowliest and the lost, the destitude and the desperate, far from big business and industry, trade and commerce and high finance and sophisticated credit.\n\nWe must zero-in on the social group the Debt Act seeks to G save, the pattern of lending the statute strikes at, the heaviness of the blow and on whom it falls, and the raison d'etre of the measure. Does this specific species of deleterious economic activity, masked as moneylending 'trade', qualify for the freedom that Art. 301 confers on trade?\n\nThe specific social malady and the legislative therapeutics suggested guide the court.\n\nHere again, relativity, not absolutes, rules jurisprudence.\n\nOf course, while interpreting the relevant Articles_ in Part XIII and pronouncing upon the concept of 'trade', we must i'lave regard to the general scheme of the Constitution and should not truncate the\n\nscope a.nd .an_ipliude of economic unity, free movement, protection from d1scnmmat10n, unhampered financial arrangements and the like.\n\nUndoubtedly, the freedom, while it is wide, is not absolute.\n\nOur Constitution, framed by those who were sensitive to the massive pove:ty of the country and determined to extirpate the social and ccononuc backwardness of the masses, could not have envisioned a development where some will be 'free' to keep many 'unfree' [See Articles 38 and 39 (c)l.\n\nThat is why, to make assurance doubly sure, a further provision is made in Art. 304(b) by adding a rider to the freedom of commerce subjecting it to the requirement of reasonableness and imposition of restrictions in public interest.\n\nDas, J., in Automobile Transport (') struck the truy note, if we may say so with great respect, that while the text of the Articles is a vital consideration in interpreting them, 'we must' at the same time, remember that we arc dealing with the Constitution of a country and the interconnection of the different part's of the Constitution forming part of an integrated whole'.\n\nThe learned Judge asks : 'Even textually, we must ascertain the true meaning of the word 'free' occurring in Art. 301 From what burdens or restrictions is the freedom assured?\n\nThis is a question of vital importance even in the matter of construction'.\n\nLater, in the judgment, Das J., drives home the point that 'the conception of freedom of trade in a community regulated by law pre-supposes some degree of restriction, that freedom must necessarily be delimited by considerations of social orderliness' (underscoring sµpplied).\n\nEven the Australian Case (1916 22 CLR 556, 573) conceptulizes freedom as nothing extra legem, lest freedom should be confounded with anarchy. 'We are the slaves of the law\", said Cicero, 'that we may be free'.\n\nSir Samuel Griffith, C. J. in Duncan v. State of Queensland (22 CLR 556, 573), said : \"But the word 'free' does not mean extra legem any more than freedom means anarchy.\n\nWe boast of being an absolutely free people, but that does not mean that we are not subject to law.\" The conscience of the commerce clause in India, as elsewhere, is the promotion of an orderly society. social justice is the core of the constitutional order.\n\nTwo inter-connected, but different facets of freedom of trade and commerce fall for serious consideration i'n the light of the above discussion.\n\nIs anti-social, usurious, unscrupulous money-lending to economically weaker sections, eligible for legal recognition as 'trade' within the meaning of Art. 301 ? Secondly, a&-suming that eveE such activi•ties have title to be termed 'trade' are the provisions of the Debt Act reasonable, regulatory and in the public interest ?\n\nThe learned Attorney General argued for the proposition that the narrow, noxious category of money-lending with which we are concerned is so oppressive and back-bre!lking so far as the poorest sections of the community are concerned that a sense of social justice forbids the court to legitimate it as 'trade'. Not all systematic economic activity, even if not formally banned by the law, can be christened 'trade', he submits, and relies on Chamorbaughwala to reinforce this reason-\n\n(!) [1963] (I) S.C.R. 491.\n\n(2) [1957] S.C.R. 930.\n\n' .\n\n1'ATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan /yer, J.) 839\n\nmg.\n\nIn that case the impugned Act was said to offend against Art. 301.\n\nThe Court, therefore, considere_d whether gambling was not 'trade, commerce or intercourse' and took sky-view of the numerous decisions in various countr;'es bearing on this branch of sociological jurisprudence.\n\nOne of the Australian cases dealing with lotteries (Mansell v. Beck) elicited the observation that lotteries, not con~ ducted under the authority of government, were validly suppressed as pernicious.\n\nTaylor, J. made the trenchant observation\n\n\" .... whilst asserti•ng the width of the field in which s. 92 may operate it is necs3ary to observe that not every transaction which employs the forms of trade and commerce will, as trade and commerce, invoke its protection.\n\nThe sale of stolen goods, when the transaction is juristically analysed, is no different from the sale of any other goods but can it be doubted that the Parliament of any State may prohibit the 3ale of stolen goods w;•thout infringing s. 92 of the Constitution ?\n\nThe only feature which distinguishes such a transaction from trade and commerce as generally understood is to be found in the subject of the transaction; there is no difference in the means adopted for carrying it out.\n\nYet it may be said that i•n .essence such a transaction constitutes no part of tr.ade and commerce as that expression is gener; illy understood.\n\nNnmerous examples of other transactions may be given, such as th_e sale of a forged passport, or, the sale of counterfeit money, which provoke the same comment and, although legislation prohibiting such\n\ntransactions may, possibly, be thought to be legally justifiable puruant to what has, on occasion, been referred to all a 'police power', I prefer to think that the subjects of such transactions are not, on any view, the subjects of trade and commerce as that expression is used in s. 92 and that the protection dfforded by that section has nothing to do with such transactions even though they may require for their consummation, the employment of instruments, whereby inter-State trade and commerce is commonly carried on.\"\n\n( (RMDC Case, pp. 915-916)\n\nIn the United States of Amerita, operators of gambling sought the protection of the commerce clause.\n\nBut the Court upheld the power of the Congress to regulate and control the same.\n\nLikewise, the Pure Food Act which prohibited the importation of adulterated food was upheld.\n\nThe prohibition of transportation of women for immoral purposes from one State to another or to a foreign land was held valid.\n\nGambling itself was held in great di<sfavour by the Supreme Court which roundly stated that 'there is no constitutional right to gamble'.\n\nDas, C. J., after making a survey of judicial thought, here and abroad, opined that freedom was unfree when society was exposed to grave risk or held in ransom by the operation of the impugned\n\nactivi'ties.\n\nThe contrary argument that all economic activities were entitled to freedom as 'trade' subject to reasonable restrictions which the Legislature might impose, was dealt with by the learned Chief Justice in a sharp and forceful presenttion :\n\n\"On this argument it will follow that criminal activi•Jes undertaken and carri'ed on with a view to earning profit will be protected as fundamentaJ rights until they are restricted _by law.\n\nThus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of housebreaking, of selling obscene pictures, of trafficking in women and so on until the law curbs or stops such activiti'es.\n\nThis appears to us to be completely unrealistic and incongruous.\n\nWe have no doubt thai: there are certain activities which can under no circumstance be regarded as trade or business or commerce although the usual forms and instruments are employed therein.\n\nTo exclude those activities from the meaning of those words is not to cut down their meaning at all but t9 say only that they are not within the true meaning of those words.\n\nLearned counsel has to concede that there can be no 'trade' or 'business' in crime but submits that this principle should not be ex!_ended .... \" We have no hesitation, in our hearts and our heads, to hold that every systematic, profit-oriented activity, powever sinister, suppressive or socially diabofa::, cannot, ipso facto, exalt itself into a trade.\n\nIncorporation of Directive Principles of State Policy casting the high duty upon the State to strive to promote the welfare of the people by securing and protecing as effectively as it may a social order in which justice--soci•al, economic and political-shall inform all the institutions of the national life, is not idle print but command to action.\n\nWe can never forget, except at our perjl, that the Constitution obligates the State to ensure an adequate means of livelihood to its cit:i!zens and to see that the health and strength of workers, men and women, are not abused, that exploitation, moral and material, shall be extradited.\n\nIn short, State action defending the weaker sections from social injustie and all forms of exploitation and raising the standard of living of the people, necessarily i•mply that economic activities, attired as trade or business or commerce, can be de-recognized as trade or business.\n\nAt this point, the legal culture and the public morals of a nation may merge, economic justice and taboo of traumafa: trade may meet and jurisprudence may frown upon dark and deadly dealings.\n\nThe constitutional refusal to consecrate exploitation as 'trade' in a socialist Republic like ours argues itself ..\n\nThe next question then i~ whether rural and allied money-lending is so abominable as to be 'bastardized' by the law-for which the Attorney General pleaded.\n\nShri Nariman controverted - the vulgar generalisation that all money-lenders are vampirish as unveracious imagery.\n\nHe argued t})at many of them were not only licencid but had complied with the conditions of their licences in doing honest lending business and supplying rural credit to those n need.\n\n~ . ....\n\n....\n\n' FATEHCHAND HIMMATLAL v .. MAHARASHTRA (Krishan Iyer, J.) 841\n\npointed out that institutional redi~ had hardly penetrated rural India and the non-institutionalised money-lenders had done economic service to a primitive peasantry although several of them had abused. the si'iuation_ of helplessness in which the weaker denizens of backward regions found themselves. _His contention was that there was no justification for cal}tigating money-lending as non-trade i; ior was there valid material to condemn wholesale all those who had servod. as the financial .bckbone of !1gricultural communities in the past.\n\nReasonable restnctions to obviate abuse were permissfole legislation, but obdura~ tefusal to treat what in fact was trade as trade was injustice born of hostile hunches. 'He had separate arguments on the unreasonableness of the provisions of the Debt Act which we will deal with later.\n\nThe bone of contention between the parties, therefore, is as to whether money-lenders as a class and money-lending as a systematic traditional activity in the special context of the weakest sections of agrarian humanity and the working class, can be catled 'trade'.\n\nThe legal principles have already been explained by us which we may sum up briefly by stating that, generally speaking, the systematic business of lending i~ trade, as understood in the commercial world and in ordinary monetary dealings.\n\nMoreover, trade cannot be confined to the movement of goods but may extend to transactions linked with merchandi§e or _the flow of goods, the promotion of buying and selling, advances, borrowings, discounting bills and mercantile documents, banking and other forms of supply oJ funds.\n\nIt is possible, however, to project a different view point and this i•.; precisely what the learned Attorney General has done. Free flow, understood in Article 301, implies some movement from place to place.\n\nFreedom of trad.!<_, subject to reasonable restrictions, is guaranteed under Art. 19.\n\nTh~ special advantage derived by the Trade by virtue of Art. 301 consists in the interdict on impeding, directly and immediately, movement of goods or money transacfrons connected with movement of merchandize or commercial intercourse.\n\nIn i; hort, the Attorney General considers the element of movement as essential to Art. 301 in contrast with Art. 19.\n\nWe see the force of the submission but are inclined to the view that dealings of Banks and similar\n\ninstiliutions having some nexus with trade, actual or potential, may itself be trade or intercourse.\n\nAll modern commercial credit and financial dealings0 covered by the various rulings cited at the bar, come under this heading.\n\nEven so, the village-based, age-old, feudal pattern of _money-lending to those below the subsi§tence level, to the village artisan, the bonded labourer the marginal tiller and the broken farmer, who borrows and repay~ ~11 perpetual labour, hereditary service, periodical delivery of grain and unvouchered usurious interest, is a countryside incubus.\n\nThi's is not an isolated evil but a ubiquitous agrarian bondage.\n\nSuch debts ever swell, never shrink, such captive debtors never become qui•ts, such countryside creditors never get off the backs of the victims.\n\nThe worker and peasant of India whose lot is to be 'born to Endless Night' is symbolized by Jawaharlal Nehru, an architect of the Constitution, as the Man with the Hoe:\n\n\"Bowed by the weight of centuries he leans\n\nUpon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world.\n\nx x x x\n\n\"Through this dread shape the suffering ages look, Time's tragedy is io. that aching stoop, Through this dread shape humanity betrayed, Plundered, profaned and disinherited, Cries protest to the powers that made the world,\n\nA protest that is also prophecy.\"\n\nAll this painful poetry and prose is borne out by the record in the case and by studies by econmists.\n\nA recent issue of the Eastern Economi'St reads :\n\n\"The problem of rural indebtedness is as old as Indian agriculture itself.\n\nIt is the net result of usurious money lending, improvident spending and adversities in agriculiure.\n\nThe heavy bmden of debt not only continues to cripple our rural economy, but 'it also grows i'n alarming magnitude.\n\nSeveral attempts have been made by expert bodies rom time to time for a realistic estimation of rural indebtedness.\n\nNevertheless, the fact remains that the rural indebtedness in physical terms is mounting up and the nightmare of indebtedness continues to haunt the Indian peasants ...\n\nQute recently the report published by the All India Rural Debt and Investment Survey relating to 1971-72 also depicts an increasng trend in rural indebtedness.\n\nIt has been estimated that the aggregate borrowings of all rural households on June 30, 1971 was Rs. 3921 crores, while the average per rural household beh1g Rs. 503/-.\n\nFortythre; e per cent of the rural families had reported borrowings. . ..\n\nIf the problem of rural indebtedness is to be kept within meaningful limi'l:s and manageable proportions, followin1 legislative and non-legislative measures should be taken :\n\n1. At present tJ!e institutional agencies provide only ~O per cent of the total rural credit needs.\n\nIncreased efforts by all the institutional agencies are called for especially m\n\nthe context of the declarariton of moratorium on rural debt which may affect the flow of non-institutional finance.\n\n2. There are about 75 million marginal farmers with less than one hectare of operational holding, 20 million artisans and 47 million agricultural labourers in rural sector, who constitute the rural poor.\n\nLiquidi1!tion of e.xisting debt is an essential step in order to give relief to these weaker sections.\n\nThe Debt Relief Acts passed in different states should be effectively implemented.\n\n....\n\n,<'\n\n...\n\nE'ATL\\HCH.4.)ID HIMMATLAL v. MAHARASHTRA (Krishalt Iyer, J.) 8.43 •'\n\n3. Institutionalisation of rural savings and inculcation of saving habits amongst rural folk is a positive step to mitigate this problem .. Massive propaganda and education on economising expenditure may discourag~ extravagant spending by certain categories of rural Jiouseholds. If necessary, certain legislative measures such as abolishing dowry system and imposing austere marriagCli !!lay also be resorted to.\n\n4. Attempts must also be made to bring the money lender1 under some form of monetary regulation and control on the lines suggested by the Banking Commission. Though at present legislations exist in several states for the regulation of money lenders they lack: enforcement which render the ineffective.\" (emphasis, added)\n\n('Current Trends in Rural Indebtedness-by M. Gopalan & V. Kulandaiswamy-Eastern Economist d/ April 23, 1976 Vol. 66, No. 17, pp. 826-829) -\n\nProfessor Pani•kar, referri!lg to the nightmare of debt has t}lis to say :\n\n\"Perhaps, it may be that the need for bqrrowing is taken for granted.\n\nBut the undisguised fear that fhe oppressive burden of debt on Indian farmers is the main hindrance to progrCM is unanimous. There are many writers who depict indebtedness of Indian farmers as _an unmixed evil.\n\nThus, Alai: Ghosh quotes with approbati'On the French proverb that 'Credit supports the farmer as the hangman's rope the hanged'.\"\n\n(Rural Savings in India-P. G. K. Panikar--Somaiya Publication& Pvt. Ltd., Bombay, 1970)\n\nDr. Bhattacharya, in his book 'Social Security Measures (Metropolitan Book Co., Delhi, 1970) dwells on the agricultural indebtedness :\n\nin India' problem of\n\n\"A sample survey conducted by Second Agricultural Commission revealed the grim condition of rural indebtedness.\n\nThe Survey observes, 'Of the estimated total number of 16.3 mi]Jion agricultural labour households in the country, 63.9 per cent were indebted and debt per indebted household was Rs. 13~ per annum'.\n\nThis is indeed a danger signal particularly for a country whose entire economy\n\ni'I dependent on the prosperity of rw-al population.\n\nThe same source 5ums up the total volume of rural indebtedness in the following words, 'Thus the total volume of dt<bt of the indebted a'gricultural labour households may be estimated at about Rs. 143 crores in 1956-57.\n\nA similar estimate was made on the basis of the results of the 1950- 51 Enquiry (i.e., the First Agricultural (ommission Report) and it worked out to about Rs. 80 crores, Even though the estimated number of agriculture labour households in\n\nJ-206SCI/77\n\n844 lSUPREME COURT REPORTS\n\n(1977] 2 ~.C.R.\n\n1956-57 was lower by 1.6 million as compared with 1950- 51, the total debt of indebted agriculture labour household had considerably increased in 1956-57.\" (pp. 164-165)\n\nDhires Bhattacharya in his 'Concise History of the Indian Economy'\n\n(Progressve Publishers, Calcutta, 1972) refers to the Indian rural drama and the role of the anti-hero played by the_ money-lender :\n\n\"Money-lending thus became an easy method of earn-: ing an income and subsequently of acquiring valuable title to land in the event of default by the debtor.\n\nThroughout the nineteenth century ownership rights in land were being lost by the ryot and acquired by moneyed interts, both rural and urb; m.\"\n\n\"The situation created by such extensve loss of pro~ perty by the cultivating classes exploded into riots against money-lenders and usurpers of land in several parts of the country.\n\nThe agricultural riots in Poona and Ahmednagar in Bombay Presidency in 1875 are most widely known because they were followed by the appointment of a Commission of Inquiry.\" (pp. 77-78) '\n\nThe author recounts the series of legislation made during the British Indian period and concludes -:\n\n\"These laws also failed in their purpoe because no restrictions had been imposed on the transfer of land between members of the agricultural classes.\n\nMoney-lenders could, therefore, operate through a benamidar (ficti'tiom agent) belonging to an agricultural class and acquire land almost as easily as before.\n\nAt the same time the bigger agriculturists had no difficulty in swallowing up the smaller ones by giving loans at exorbitant rates of interest to the latter. (p. 78)\n\nThe economit: literature, official and other, on agricultural and working class indebtedness is escalating and disturbing.\n\nIndeed, the -G 'money-lender' is an oppressive component of the scheme.\n\nA. N.\n\nAgrawal, in his book 'Indian Economy' (Vikas Publishing House) indicates that 'money-lenders charge heavy interest ranging from 15% 50% and often more.\n\nIn addit; on to high interest, these people take advantage of illiteracy of agriculturists and manipulate the accounts regarding loans to their advantage.\n\nThe conditions of loan repayment are so desi•gned that the debtor is forced H to sell his produce to the mahajan at low prices and purchase goods for conumution and pr0duction at hi!!h prices. In many other ways take advantage of the poverty and the helplessness of farmers and exploit them. .... Unable to pay high interest and the principal,\n\n.•.\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer,!.) 845\n\n~e farmers even lose their land or lve from genration to generation under heavy debt ..... Unless viable alternatives are made available, the mahajan will continue to hold an important, harmful and enervating place ill this sphere'. The harmful consequences of mdebtedncss are economic and affect efficient farming, social in that the 'relations . between the loan givers and loan receivers take on the form of rciatiom;\n\n-0f hatred, poisoning the social life'. The money-lenders, few in number, belong to poor class.\n\nThere are often disputes between the two classes which get sharpened .. . on the exploitation of the poor. In fact the social groups get split into two broad classes. The exploiting class and the exploited class .. Apart from losing land and leading to tension in the villages their evil effect is rampant .. . the heavily indebted farmers lose even their human existence. They not only render bonded labour to money-lenders, their very self-respect and even respect of their women folk do not remain safe .. They are forced to live the life of slaves. Of course, laws have now been enacted which protect these debtors. But these laws are difficult to be enforced either because farmers are illiterate, or they do not have enough resources to go to the courts, or the money-lenders prove too clever for them.\"\n\nDr. C. B. Mamoria in his book 'Agricultural Problems of India' (Kitab Mahal) has stressed that rural indebtedness has long bem one of the most pressing problems of India. \"Rural people have been under heavy indebtedness. of the average money-lenders and sahukars.\n\nThe burden of this debt has been passed on from generation to generation inasmuch . as the principal and interest went on increasing for most of them .. According to Wold, 'The country h<'.5\n\nbeen in the grip of Mahajans. It is the bond of debt that has shackled agriculture.\"\n\nVery convincing and compelling, with special reference to Maha-· rashtm, is the Report of a high-powered Committee appointed by the Government of Maharashtra to make recommendations for the relief of rural and urban indebtedness.\n\nThe study is at once revealing and grim.\n\nRural artisans, industrial workers, marginal farmers :md indigent agriculturists have been steeped in debt despite statutory measures and ineffective credit institutions. These human areas have been the happy hunting ground of money-lenders.\n\nThe Bombay Moneylenders' Act, according to the Committee, hardly helped bail out the weaker sections.\n\nDespite the Act, licensed and unlicensed moneylenders pursued their exploitative profession.\n\nThe Debt Act implements some of the recommendations of this Committee although positive institutional finance to save the sunken segments from the grip of the moneylenders remains to go into action.\n\nEven enforcement of the Bombay Moneylenders' Act appears to be lukewarm according to the Committee.\n\nBe that as it may, th.e econ01nic distress, for which moneylenders dealing with the :weaker sections are\n\nmainly responsible, is clearly brought out in the Report.\n\nNor is there anything in this Report or in any other literary material on rural economics (particularly relating to artisans, workers and collap- -sing cu1tivat01s) to substantiate the dichotomy of scrupulous and un- -scrupulous moneylenders, vehemently pressed before us by Shri\n\nA Nariman.\n\nThe former species are more a pious wish and the !atter tribe a spectre on the increase, if statistical economic studies are to\n\nbe trusted.\n\nThe gravestone on the old 'moneylender' system and the cornerstone of the new liberated order are thus the programme for the Administration.\n\nThe Debt Act is part of the package.\n\nThere was much argument about the reasonableness of the restriction on moneylenders, not the general category as such but the cruel species the Legislature had to confront-and we have at great length gone into the gruesome background of economic ffi<!quitics, since the test of reasonableness is not to be applied in vacuo but in the context of life's realities.\n\nPatanjali Sastri C.J., in State of Madras\n\nv. V. G. Rao(') observed :\n\n\"It is important in this context to bear in mind that the:, test of reasonableness wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases.\n\nThe nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of Ll:te evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.\"\n\nMoney-lending and trade-financing are indubitably 'trade' in the bread rubric, but our concern here is blinkered by a specific patkm of tragic operations with no heroes but only anti-heroes and victims.\n\nMany Conferences, Commissions and resultant enactments Defore and after Independence provided but marginal protection for the rural debtor.\n\nEven licensing was evaded by the money-lender suci;:ei; sfully and concilliation machinery proved a mirage.\n\nStatutes made of sterner stuff became the desideratum.\n\nIn the counter affidavit filed on behalf of the State of Maharashtra, F a lurid presentation of the lender-borrower scenario is found.\n\nThe deponent states :\n\n\" ... that it was a common sight around the secretariat, Government Offices, Textile Mills, factories and elsewhere in Bombay to find moneylenders waiting at the gates to catch workers to collect their dues.\"\n\nThere is also reference to a number of Official Committees which have examined the question of indebtedness in the urban and rural areas and have recommended measures of relief.\n\nThe a:ffida1it goes on to i; t11te :\n\n\"I say that in Maharashtra and its predecessors the State of Bombay there have been several legislations on this subject including the Deccan Agricultural Debt Relief Act, 1879, Bombay Agricultural Debtors Relief Act, 1939, 1946\n\n(1) [1952] S.C.R. 597.\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) S47\n\nand in the Vidarbha areas of the State, the Madhya Pradesh Postponement of Execution of Decree Act, 1956. I say that there is a well-established history of dealing with mdebtd- 11.ess in the State by means of legislation.\n\nI say that . the Reserve Bank carried out an inquiry in the matter of indebtedness in 1971 which is referred to as All India Debt and Investment Survey during 1971-72. The Reserw Bank of India survey established that the total debt liabihties in the rural areas in Maharashtra was Rs. 358 crores m 1971-\n\n72. A preliminary analysis made by the. Reserve Bank of India also indicated weaker sections of the community thereby showing the extent of the burden of debt on the weaker sections of the community.\n\nI crave leave to refer to and rely upon the statistical tables prepared by the Reserve Bank of India in this connection when produc(!d.\n\nI say that the extent of indebtedness may be much more than what is indicated by the statistical survey of the Reserve Bank of India.\n\nThe licensed moneylenders alone in the State are known by themselves to have disbursed during 1972-7 3 a sum of about 74.37 crores and the information gethered by the respondents indicates that the known indebtednc5~ in the city of Bombay alone would be of the order of Rs. 45 crores.\n\nI say that in additidn to the licensed moneylenders u'!licensed money lending is also carried on in the Stute.\"\n\nThe Statement of Objects and Reasons of the Maharashtra Ordinance VII of 1975 which was the precursor to the impugned\n\nAct contains the following staement : E\n\n\"The problem of urban and rural indebtedness bas\n\nasumed enormous propotions in recent tim~. The noninstitutional sources of credit, namely, unscrupulous money-lenders, have been charging usurious rates of interest, indulging in malpractices and taking undue advantage of the weak position of the economically weaker sections of the people both in rural and urban areas.\n\nThe Ordinance, therefore, seeks to give relief to certain sections of people from indebtedness.\"\n\nEven the 'whereas' vocabulary of the draftsman of the Act refers to the need for immediate action to provide for relief from indebtedness to certain farmers, rural artisans, rural labourers and workers in the G State of Maharashtra.\n\nThe judgment under appeal also makes reference to the continual legislative effort made in the past to save the agricultural community from chronic indebtedness.\n\nThe learned Judges observe :\n\n\"Indeed, agricultural indebtedness has always been the bane of Indian economy ever since the beginning of the twentieth century.\n\nAny elementary book on Indian economics will disclose that even the British Government bad\n\nthought it necessary to make an enquiry into agricultural indebtedness.\n\nThat was one of the terms of Royal Commission on Agriculture, and from time to time enquiry committees were set up including the Banking Enquiry Committee to go into the question of agricultural indebtedness with a view to find out how alternative sources of credit to be made' available to the agriculturists could be brought into existence.\n\nIn a sense, the phrase 'agricultural indebtedness' has earned a connotation over the passage of years to indicate the unhappy position in which an Indian agriculturist has always found ever since the phenomenal fall of prices in 1929.\n\nIt has become proverbial that an Indian agriculturist is born in debt, he lives in debt and he dies in debt.\"\n\nEminent economists and their studies have been adverted to by the High Court and reliance has been placed on a Report of ~- Committee which went into the question of relief from rural and urban indebtedness which shows the dismal economic situation of the rural farmer and the labourer.\n\nIt is not merely the problem of agricultural and kindred indebtedness, but the menacing proportions of the moneylenders' activities that have attracted the attention of the Committee.\n\nGiving facts and figures, which are alarming, bearing on the indebtedness amongst industrial workers and small holders, the Committee has highlighted the exploitative role of money-lenders and the high proportion of non-institutional borrowings.\n\nWe have made this extensive tour of the economic scene, with special reference to agricultural indebtedness and the lot of industrial labour, only to present vividly how the predatory money-lender has had a stranglehold on rural and urban proletarians, by resort to methods which are scandalizingly calamitous and unshakably resistant to legislative policing.\n\nThe learned Attorney General contends that the courts must have a sense of history and sociology informing their judicial perspective and then it is easy t_Q_ understand the syndrome of village and working class indebtedness.\n\nThere are commercial !endings, banking loans and institutional finances.\n\nThere are friendly loans, and occasional accommodations.\n\nThere are liabilities arising from various circumstances between citizen and citizen and citizen and State.\n\nBut the pernicious species of money-lending stubbornly flourishing in the; rural and industrial areas of our country, with the weakest sections as their bled-white, clientele, cannot be regarded as 'trade' because of the painful pages of economic history to which this country is , witness.\n\nThe life of the law is n<;>t neat noesis but actual experience.\n\nThe perspective of Poverty Jurisprudence is radically different from the canons and values of traditional Anglo-Indian jurisprudence.\n\nThe subject matter of the impugned legislation is indebtedness,_ the beneficiaries are petty farmers, manual workers and allied categories steeped in debt and bonded to the money-lending tribe. So, in passing on its constitutionality, the principles of Developmental Jurisprudence must come into play.\n\n,..\n\n.. -\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA tKrLvhan Iyer, J.) 849\n\nWre> agree with Shri Nariman that the intimate unity of national A U:fe sought to be sustained by Part XIII cannot be invidiously breached against the money-lenders provided they qualify to be traders. If a law cuts into the flesh of the commercial unity and integrity of the country, unreasonably or against public interest, Part XIII electrocutes it.\n\nA meaningful, yet minimal analysis of the Debt Act, read in the B light of the times and circumstances which compelled its enactment will bring out the human :Setting of the statute.\n\nThe bulk of th~ beneficiaries are rural indigents and the rest urban workers.\n\nThese are weaker sections for whom constitutional concern is shown because .-' mstitutional credit instrumentalities have ignored them.\n\nMoneylending may be ancilliary to commercial activity and benignant in its effects, but money-lending may also be ghastly when it facilitates C no flow of trade, no movement of commerce, no promotion of intercourse, no servicing of business, but merely stagnates rural economy, strangulates the borrowing community and turns malignant in its repercussions.\n\nThe former may surely be trade, but the latter-the\n\nlaw may well say-is not trade.\n\nIn this view, we are more inclined to the view that this narrow, deleterious pattern of moneylending cannot be classed as 'trade.' No other question then arises, since D the petitioners and appellants cannot summon Art. 301 to their service.\n\nAssuming that all money-lending is 'trade', can it be contended that this re.lief measure is invulnerable to attack on the ground that the texture of the restrictions is reasonable and regulatory ?\n\nArticle 304(b) relaxes in favour of the State the prohibition in Art. 301 provided the law imposes only such restrictions as are reasonable and in public interest.\n\nShri Nariman's submission is that the Debt Act is too draconic to fair, processually and substantively, and so it cannot be rescued by Art. 304(b).\n\nWith persuasive pressure he invited us to look at the horror of procrustean infliction of equal hostility by the legislature in dealing with the asuric Shylock and the dharmic lender.\n\nThe law which brands the good and the bad alike and indiscriminately discharges all debts, just and unjust, lacks sense., conscience and reasonableness.\n\nSecondly 'How is it fair,' asks Shri Nari.man, 'that, if the object of the legislation is to save 'the victims of rural indebtendness and working class burdens that credit institutions should be exempted while non-institutionalised lenders should be picked out for hosj:ile treatment ?'\n\nThere is no merit in the plea.\n\nLiabilities due to government to local authorities are not tainted with exploitation of the debtor. Likewise, debts due to banking companies do not 1ordinarily suffer from overreaching, unscrupulousness or harsh treatment.\n\nMoreover, financial institutions have, until recently, treated the village and urban worker and petty farmer as untouchables and so do not figure in the picture.\n\nTo exempt the categories above referred to is reasonable.\n\nMany debt relief laws adopt this classification and those familiar with the lowest layers of economic life will agree that this is as it should be.\n\nMoney-lenders of the type we are concerned with in the Debt Act are,\n\n850 SUPREl\\IE COURT REPORTS [1977] 2 s.c.R. ~~ by and large, heartless in their lending tactics, and the horrowers are anaemic-mostly members of the Scheduled Castes and Scheduled Tribes,. _nomadic groups, artisans, workers and the like. 'Section 13 of the Debt Act is illuminating, regarding the handicapped humans the statute is concerned with.\n\nWe quote that provision :\n\n\"13. Agreement for labour in lieu of debt to become void.-\n\nAny custom or tradition or any agreement (whether made before or after the appointed day), whereunder or by virtue of which a debtor or any member of his family is required to work as labourer or otherwise for the creditor shall be void and of no effect and shall never be enforceable in any civil court.\"\n\nMaybe, some stray money-lenders may be good souls and to stigmatize the lovely and unlovely is simplistic betise. But the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations. So viewed, pragmatics overrule punctilious and unconscionable money-lenders fall into a defined group. Nor have the creditors placed material before the Court to contradict the presumption which must be made in favour of the legislative judgment.\n\nAfter all, the law-makers, representatives of the people, are expected to know the socio-economic conditions and customers.\n\nSince nice distinctions to suit eVlery kindly creditor is beyond the law-making process, we have to uphold the grouping aa reasonable and the restrictions as justified in the circumstances of the case.\n\nIn this branch, there are no finalities.\n\nThe observations of the Privy Council in the Australian Bank Nationalisation Case(') are apposite :\n\n\"Yet about this, as about every other proposition in ibis field, a reservation must be made.\n\nFor their Lordships do not intend to lay it down that in no circumstances could the exclusion of competition so as to create a monopoly either in a State or Commonwealth agency or in somo other body be justified.\n\nEvery case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some state of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner or regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free.\"\n\nWe do not downright denounce all money-lenders but the lawmakers have, based on socio-economic facts, picked out a special class of money-lenders whom they describe as unscrupulous.\n\n(1) Commonwealth of Australia v. Bank of New South Wales '\n\n[1950] A.C. 235, 311.\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishatl Iyer_: J.) 151\n\nEvery cause claims. its martyr and if the law, necessitated by practical considerations, makes generalisations which hurt a few,. it -cannot be helped by the Court.\n\nOtherwise, the enforcement of the Debt Relief Act will turn into an enquiry into scrupulous and unscrupulous creditors, frustrating, through endless litigation, the instant relief to the indebted which is the promise. of the legislature .\n\n. ' / In this pcrspectiw, we see no corstitutional flaw in the Act on the score that the sheep have not been divided from the goats. Realism in the legislature is a component Of reasonableness.\n\nIt was urged by Shri Chitale that the definitional deficiency in ignoring the movable wealth of debtors makes the scheme arbitrary and unreasonable.\n\nA rorgantic view , of the e.ebtors being considerable owners of costly art pieces and sopllist; cated gadgets and yet eligible for relief is good rhetoric but unrealistic.\n\nA pathetic picture of the money-lender qeing deprived. of his loan assets while being forced to repay his lender was drawn but that cannot affect the reasonableness of \"the relief to the gia~foots borrower.\n\nNor is it value to attack the Act on the score that the whole debt i.e., the very capital of the business, has been dissolved.\n\nMore often than not, the money-lender would have, over the long-lived debts and repeated renewals, realized more than the principal if economic studies tell the tale truly.\n\nThe injustice of today is often the hangor of the injustice of yesterday, as spelt out by history.\n\nThe business of money-lending has not been prohibited.\n\nThe Act is a temporary measure limited to grimy levels of society.\n\nExisting debts of some classes of indigents alone have been liquidated.\n\nIf impossible burdens on huge human numbers are not lifted, social orderliness will be threatened and as a regulatory measure this limited step has been taken by the Legislature.\n\nRegulation, H the situation is necessitous, may reach the limit ot prohibition.\n\nDisorder may break out if the law does not step in to grant iOme relief.\n\nTrade cannot flourish where social orderliness is not secure.\n\nIf the tensions and unrests and violence spawned by the desperation of debtors are not dissolved by State acti, on, no moneylending trade can survive.\n\nIt follows that for the very survival o~ Trade the regulatory measure of relief of indebtedness is required.\n\nThat form this relief should take is ordinarily for the legislature to decide.\n\nIt is not ordinarily for the Court to play the role of 'Economic Adviser to the Administration.\n\nHere amelioratory mcasur~ have been laid down by the Legislature so that the socio-economic scene may become more contented, just and orderly.\n\nObwously, this is regulatory in the interest of Trade itself.\n\nThis policy decision of the House cannot be struck down as perverse by the Co_!lrt.\n\nThe restrictions under the Debt Act are reasonable.\n\nEqually clearly, if the steps ot liquidation of current debts and moratori_um are regulatory, Art. 301 does not hit them.\n\nEven so, argues Shri Nariman, procedural presumptions grosaly unreasonable, vitiate the measure.\n\nOf course, reasonableness has a processual facet and if the law lis lawless in its modalities, it becomes\n\nunlaw constitutionally.\n\nWe may illustratively advert to some of the cri.tici.sms but, at the threshold, we confess we are not impressed with the submissions.\n\nShri Nariman itemised the mischievous provisions in the Debt Act from the processual angle.\n\nOthers too reiterated with consternation that the provision whereby every debt of every debtor of the specified category stood wholly discharged was improvident, especially because it did not ev'en require the debtor .to move the authorities in that behalf.\n\nOn the other '11and, the burden was on the creditor to raise the question by institutini:; •. a proceeding as to the disqualification of hls debtor for the benefit of tre Debt Act.\n\nOn top of this obligation to institute proceedings was the precarious prospect of the order being against the creditor because ti.e 'authorised officer' had to hold in favour of the debtor if he merely produced'<! certificate under s. 7(5) from one of those officials enumerated thetei~'I-all minor minions of government at the local level.\n\nOnce the certificate was produced by the debtor the onus was shifted to the creditor to make out the contrary. ~How could the money-lender prove the debtor's financial position ?' asked Shri Nariman.\n\nMoreover, the issuance of a certificate by the local little official was. a unilateral process where the\n\ncredior was not entitled to be heard as to the means or eligibility of the. debtor.\n\nThere were two further unreasonable procedural impositions on the creditor, argued Shri Nariman.\n\nThe lender had to make his application with all the facts within 7 days from the date of receipt of the application from the debtor intimating that the debt stood released.\n\nThe 7-day period was too short even to make enquiries about tl1e assets of the debtor, And worse, the application by the creditor shall be entertained by the authorised officer only on the creditor depositing the pledged property of its value.\n\nThus the dice was so heavily loaded against the money-lender that even persons who were not petty debtors intended to be beneficiaries might, with illegitimate success, claim the bonus of the Debt Act.\n\nViewed in the abstract, these grievances may look genuine but when we get down to the reality, nothing so revolting exists in these prov:isions.\n\nIt is true that the creditor has to move, and not the debtor, before the authorised officer.\n\nAs between the two, the moneylender is sure to be. far shrewder and otherwise more capable of initiating proceedings.\n\nTo cast that obligation on the debtor-remember, in the bulk of cases he is the village artisan, landless labourer or industrial worker-is to deny relief in effect while bestowing it in the book. Likewise, there is nothing horrendous in the debtor seeking a certificate of qualification from the small officer of the area.\n\nAfter all, the officials enumerated in s. 7 (5) are government servants, local officials, possess familiarity with the wherewithal and the whereabout~ of persons within their area and are therefore accessible and competent.\n\nThere is no reason whatever for allowing the creditor to be heard at the certificate stage except to prolong and puzzle the proceedings and by dilatory tactics, deny the relief to be debtor.\n\nThe creditor does not suffer because the certificate that the applicant is a debtor raises only a rebuttable presumption and it is idle to argue that the creditor has no means of disproving the income or assets of his debtor. Ordinarily, the mahajan, the sowcar or money-lender and the petty borrower live in and around the same neighbourhood, the former knows the circumstances of the latter and often these are not\n\n. .\n\n, _ i :1 '\" ''' l;~·\"f\"i' \"!'-' 4\"'+~~,;.;.~~ c.\n\nFATl!HCJ'IAND HIMMATLAL v. MAHARASHTRA (Krishan Tyer,!.) 8 53\n\nisolated transactions between strangers.\n\nSo much so the debtor's fi.nancial horoscope or impecunious kismet is normally within the en of the creditor.\n\nMoreover, a perusal of the pro-forma of the certificate to be issued needs mention of several particulars which have to be filled up by tho certifying officer who has therefore to make the necessary enquiries from and about the debtor.\n\nAssurance about the credibility of the certifying officer's entries is lent by the personal responsibility cast on him for the correctness of the particulars mentioned in the certificate.\n\nThis is a protection for the credit-Or that routine and reckless entries will not be made and that the certifying officer will take. care, prima facie, to be satisfied by proper enquiry before issuing the certificate.\n\nSuch a safeguard warrants the raising or a rebuttable presumption of correctness and red_uces the p_ossibility of injustice to the creditor for not being allowed an opportumty for being heard at this stage.\n\nIn this view also we see nothing unreasonable in the pres:umptive evidence of the certificate without the hearing of the creditor.\n\nFairplay is also afforded in the proceeding not only because the creditor can rebut the certificate but also because under s. 8 ( 6) the authorized officer has the power and duty to determine all questions in dispute.\n\nSection 7 (7) expressly provides for an opportunity to. the creditor and the debtor to be heard.\n\nAfter all, the authorised ofiicer is one who exercises quasi-judicialpowers even otherwise on t11e Revenue side.\n\nWhile the enquiry is summary, the procedure under the Maharashtra Land Revenue Code will be adopted which is a fair safeguard.\n\nSummary trial does not dispense with evidence or sound judgment but merely relieves the adjudicator from maintaining elaborate records.\n\nThe enquiring officer, may, in appropriate cases, examine the Debtor or others who can throw light.\n\nTo equate 'summary' with 'arbitrary' is contrary to common experience.\n\nThe obligation for the production of the pledged article by the creditor as a preliminary to the institution of the preceedings is also a just measure so that when a decision is reached the article may be returned to the. debtor in the vent of the verdict going in his favour.\n\nThe negation of a right of appeal against an order under s. 7(6) of the Debt Act is another circumstance. Shri Nariman has pressed before us.\n\nHe cited other debt relief measures where a single appeal had been provided for. Does the absence of a right of appeal render the procedure unreasonable ? It depends. Where the subject-matter is substantial and fraught with serious consequences and complicated questions are litigatively terminated summarily.\n\nWithout a second look at the findings by an appellate body, it may well be that unfairness is inscribed on the face of the law, but where little men, with petty debts, legally illiterate and otherwise handicapped, are pitted against money-lenders with stamina, astuteness, awareness of legal rights and other superiority, if the purpose of instant relief is to be accomplished, the provision of an appeal may, in many cases, prove abult-in booby trap that frustrates and ruins the hand-to-mouth debtor.\n\nNo mrer method of baulking the object can be devised than enticing\n\n... ~\n\nth_e debtor into an appellate bout!\n\nDaughter gone and ducate too.\n\nill. be the. sequel!\n\nOf C??fSe, where the enquiry is a travesty of\n\n1us.t1c~ o~ vmla10n of prov1s1ons, where the finding is a perversity of ad1ud1cat1on or fraud on power, the High Court is not powerless to grant remedy, even after the recent package of Constitutional amendments.\n\nIt is true that in several cases this Court has held that a right of appeal is a gesture of statutory fairness in the disposal of cases. Our\n\nattention was drawn to the rulings reported as Jyoti Pershad('); Mohd. Faruk('); and Ganesh Beedi Works(') and other cases bearing on the necessity of a right of appeal, as an incident of fair hearing.\n\nWe cannot dogmatise, generalize or pontificate on questions of law whose application depends sensitively on the nature of the subject matte~, the total circumstanes, the urgency Qf the relief and what not.\n\nWe have adduced sufficient reason to ho:til that the Debt Act is not bad for processual perniciousness or jurisprudence of remedies.\n\nThe next constitutional missile aimed at the Debt Act was the incompetency of the State Legislature to enact this law, for reasons more than one.\n\nThe main ground was covered by Shri Nariman, but yet others made their contributions-sometimes overlapping, sometimes overflowing.\n\nShri B. Sen also challenged the legislative competency, but on a different basis.\n\nSeveral citations, home-spun and foreign, finely woven theories and subtle punditry, gave a grave mein to the argument on this branch. But the point in issue, in our view, admits of straight solution, by-passing the heavy learning and jurisprudential finery.\n\nWhen Courts are cocOQned by case-law or caught in the skein of scholarly doctrines, simple questions become complex.\n\nHowever, problems of constitutional law can be well left alone where they do not directly demand a solution in the case on hand. Enough unto the day is the evil thereof :\n\nWhat then is the incompetence of the State Legislature ? Shri B.\n\nSen urged that the wiping out of private debts which formed the capital assets of the money-lenders--one of the main things .done by the Debt Act-was not in any of the legislative Lists and even if.\n\nParliament had residuary power under Entry 97 of List I, the State had none. Entry 30 in List II is 'money-lending and moneylenders; relief of agricultural indebtedne5s'. If commonsense and common English are components of constitutional construction, relief against loans by scaling down, discharging, reducing interest . and principal, am.I staying the realisation of debts will, among other thgs, fall squarely within the topic.\n\nAnd that, in a country of hereditary\n\n\n(2) (1970] 1 S.C.R. 156.\n\n(3) (1974] 3 SC.R. 221.\n\n.. -\n\ntf-;\n\n. -+-\n\nFATBIICHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer,/.) 855\n\nindebetedness on a colossal scale ! It is commonplace to state that legislative heads must receive large and liberal meanings and the sweep of the sense of the rubrics must embrace the widest range.\n\nEven incidental and cognate matters come within their purview. The whole gamut of money-lending and debt liquidation is thus within the State's legislative competence. The reference to the Rajahmundry Electricity\n\nCase(') i~ of no relevance. Nor is the absence of the expression 'relief' in Entry 30, List II, of any moment when relief from moneylenders is eloquently implicit in the topic.\n\nSometimes, arguments have only stated to be rejected.\n\nThe next ground of attack, in its multi-form presentation, is that the 'gold Joan' part of the Debt Act is void because Parliament has occupied the field. It has also been urged that there is inconsistency between the Debt Act and the Gold Control Act, and pro tanto the former fails to have effect.\n\nLet us look at the basics of the legal situation before us, before examining the wealth of learning counsel has accumulated.\n\nArticle 246 vests exclusi•ve power in Parliament over matters enumerated in List I (Seventh Schedule) and the State Legislature enjoys like power over topics in List II, subject to clauses (1) and (2) of the Article.\n\nPlainly, therefore, the State can legislate upon any Entry in the State List.\n\nWe may visualize situations where Parliamentary occupation may exclude the State Legislature.\n\nWhere, for instance, Parliament while enacting on a matter in the Union List, makes as it is entitled to make, necessary incidental provisions to effectuate the principal legislation, such ancillary expansions may trench upon the State field in List II. In such al case, if the State makes a lw on an Entry, in its exclusive List, and such law covers and runs counter to what has already been occupied by Parliament, through incidental provisions, it may be argued that the State law stands pushed out on account of the superior potency of Parliament's power in our constitutional scheme.\n\nAgain, there are certain telltale heads of legislation in the Lists where one may plausibly invoke the doctrine of occupied field.\n\nExamples may, perhaps, be furnished by Entries 52 and 54 of List I, Entries 23 and. 24 of List II and Entry 33 of List\n\nIII.\n\nWi•thout fear of cQntradiction, we may assert that Art. 246(3) read with Entry 30 in List II, emp_owers the State to make the impugned law. Why then is it incompetent? Because, _says Mr.\n\nNariman, the field of gold industry is already occupied by Parliament and the State Legislature therefore stands excluded. 'Entry 52 in List I reads : ·\n\n\"Industries, the control of which by the Union is declared by Parli'ament by law to be expedient in the public interest.\"\n\nParliament, in the Industries (Development and Regulation) Act, 1951 (Act 65 of 1951) has made the necessary declaration contem- H. plated in Entry 52 and has occupied the field of gold industry', as is\n\n(1)[1954] S.C.R. 770.\n\nevident from reading s. 2 and item l.B(2) of the First Schedule therein.\n\nThis expression of Parliamentary intent to legislate upon the gold industry is enough to expel from that field the State Legislature. This is Shri Nariman's contention. But what is the sequitur?\n\nAssuming the appropriation by Parliament of the power to legislate on gold, what follows?\n\nIt can make laws directly on that industry and ancillarily on every allied area where effective exercise of the parliamentary power necessitates it.\n\nSo much so 'business in gold', licensing of gold merchants, regulation of making or pledging of gold ornaments, keeping of jewellery, disclosure of golci possessions and the like are incidental to the parliamentary power and purpose and\n\nthe Gold Control Act, 1968 and the Rules made thereunder are valid (vide, for example, Banthds Case: 1970 I SCR 479). Several sections of the Act, some rules and a few ruliqgs were read before us to drive home the poi'nt that gold loans are already within the ken of the law made under Entry 52, List I. If so, what? Does it spell death sentence on the Debt Act? Or maim it? Or leave it intact?\n\nHere we turn to Entry 24 of List II which runs : \"Industries sub~ ject to the provisions of ntries 7 and 52 of List I\".\n\nThis means that the State Legislature loses its power to make laws regarding 'gold industry since Entry 24'. List II is expressly subject to the provisions of Entry 52 of List I. This does not mean that other entries in the State List bec-ome impotent even regarding 'gold'.\n\nThe State Legislature can make laws regarding money-lending even where gold is involved under Entry 30, List II, even as it can regulate -'gambling itn gold' under Entry 34, impose sales tax on gold sales under Entry 54, regulate by municipal law under Entry 5 and by trade restrictions under Entry 26, the type of buildings for gold shops and the kind of receipts for purchase or sale of precious metal.\n\nTo multiply instances is easy, but the core of the matter is that where under its this power Parliament has made a law which over-rides an entry iti1 the State List, that area is abstracts:d from the State List.\n\nNothing more.\n\nIn the Kannan Devan Mills Case(') this Court put the point tersely while dealing with Entry 52 of the Union List :\n\n\"Once it is declared by Parliament by law to be expedient itn the public interest to control the industry, Parliament can .legislate on that particular industry and the States would lose their power to legislate on that industry.\n\nBut this would not prevent the States from legislating on subjects other than that particular industry\". (underscoring, ours).\n\nThis is authorty for the proposition that while Entry 23 of List II, in the light of the fact that under Entry 52 of List I Parliament H has made the Gold Control Act has become inoperative to legislate. on industry, there is no inhibition whatever on State legislation on\n\n\n•• ~-<\n\nFATEHCHAND HIMMATLAL v. MAHARASHTRA (KriJhan Iyer, J.) 857\n\nsubjects other than that parti.cular industry.\n\nMone¥-leding is one such subject and the power to legislate thereon remams mtact.\n\nWe are free to agree that the word 'industry' as a legislative topic has to be interpreted in the widest amplitude.\n\nWe also find, as a fact, that dealings in gold, including pledging, have been covered in part by the Gold Control Act, 1968; even so nothi'Ilg prevents the\n\nState from making the impugned Act. In ParesfJ Chandra Chatteriee( 1) Subba Rao J (as he then was) dealt with an apparent conflict beween the Central Act (The Tea Act) and a State legislation [The Assam Land (Requisition and Acquisition) Act,· 1948].\n\nAfter examining the scheme of the two l_aws, the learned Judge concluded :\n\n\"A comparative study of both the Acts makes it clear that the two Acts deal with different matters and were passed for different purposes.\"\n\nUmeal and imaginary conflicts between the Central and the State Acts cannot be the foundation for invalidation of the latter.\n\nIn Kanan Devan (Supra) it was further pointed out :\n\n\"If the Act (the Tea Act) is within the competence of Parliament and the impugned Act is within the competence\n\nof the State, the petitioners must show that the impugned Act is repugnarit to the Tea Act but we can .see no conflict between the provisions of the impugned Act and the Tea Act.\"\n\nBanthia( 2 ) was referred to in the course of the arguments and various passages were stressed by different counsel.\n\nThe essential question there was as to whether manufilcture of gold ornaments by goldsmiths fell within the connotation of the word 'industry'.\n\nIt did. It was further pointed out by Ramaswami J in that case that some orf the entries overlap and seem to be in direct conflict but the duty of the Court is to reconcile and harmonize while giving the widest amplitude to the language of the Entries. We see nothing in that decision which contradicts the position that while the Gold Control Act fell within Entry 52 of List I, the State List was not totally suspended for that reason for purposes of legislating on subjects which fell w1thin that List, but incidentally referred also to gold transactions.\n\nNobody dispmes the paramountcy of parliamentary power.\n\nWe have to. reconcile the paramountcy principle with the 'trenching' doctrine.\n\nIn the Canadian Constitution, the question of conflict and coincidence in the domain in which provincial and dominion legislation overlap has been considered.\n\nIf both may overlap and co-exist without conflict, neither le.gislation is ultra vires.\n\nBut if there is confrontation and conflict the question of paramountcy and occupied field may crop up. It has been hel.d that the rule as to predominance of dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both\n\n\nthe: dominion and provincial enactments. There must be a real con- Hict between the two Acts i.e. the two enactments must come into collision.\n\nThe doctrine. f Dominin paramountcy does not operate\n\n~11erely bec:ause th~ Dom_m1on has leg1sated on the same subject matter.\n\nfhe doctrme of occupied field' applies only where there is a clash between Dominion Legislatic and ProVlincial Legislation within an B area comon to _both.\n\nWhere both can co-exist peacefully, both reap their respective harvests (Please see; Canadian Constitutional Law by Laskin-pp. 52-54, 1951 Edn).\n\nWe may sum up the legal position to the extent necessary for our case.\n\nWhere Parliament has made a law under Entry 52 of List I and in the course of it framed incidental provisions affecting g@ld loans and money-lending business _invc]ving gold ornaments, the Sta~<\\\n\nmaking a law on a different topic but covering in part the same area of gold loans', must not go into irreconcilable conf\\ic:ts. Of courc, if Art. 254(2) can be invoked-We will presently examine it-then the State law may still prevail since the assent of the President has been obtained for the Debt Act.\n\nThirdly, the doctrine of 'occupied field' does not totally deprive the State Legislature from making any law incidentally referable to gold. In the event of a plain conflict, . the State law must step down unless, as pointed out earlier in the previous passage, Art. 254(2) comes to the rescue.\n\nMany ore decisions were brought to our notice bearing on paramountcy, 'occupied field,' repugnancy and inconsistency.\n\nThey were elaborated by counsel sufficiently to convince us that lawyer's law is divorced from plain semantics and common understanding of Constitutional pr_ovisions becomes a casualty when doctrinal complexities are injected. May be every profession has a vested h1terest in the. learned art of incomprehensibility for the laity.\n\nLaw, in the adl ministration of which the Bench and the Bar are partners, probably liYes up kl this reputation.\n\nAll these questions become academic for two reasons.\n\nFirstly, there is no conflict between the Gold Control Act and the Debt Act. 'Secondly, the subjects of both the legislations can be traced to tile Concurrent List and Art. 254(2) validates within the State the operation of the Debt Act.\n\nWe are of the vciew,· as earlier discussed, and without citing further cases on the point, that the State's legislative power, save un:Jer the Entry 24 of List II, is not denuded.\n\nNor i~ there any _conflict between the two Acts.\n\nA detailed study, sect10n by section. of boili the legislations, has convinced us that they can stand t?gether and that the two authorities and modalities do not contradict each oilier aud iliat, by elementary comity, a modus viv, endi betwe~~ the. Gold Act and the Debt Act can be worked out.\n\nThe prov1s1ons m the Gold Act for declarations and other formalities may not collide with the obligations and applications under the Debt Act.\n\nWe have no doubt that the authorities charged with enforcement under the two statutes will understand the sense and spirit of the provisions and\n\ni •.\n\ni FATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan /yer,1.) 859\n\nsee that the object of the Debt Act is not frustrated or its processes A paralysed. Indeed, the learned Attorney General showed how by reading to gether the two Acts and remembering their respective purposes a viable resolution of possible imbroglios is simple, although -officialdom is not unfamiliar with the art of embroilment where artless\n\ncustomers are involved or ulterior ends are to be served.\n\nThe State, through an effective programme of legal aid and advice and other prompt instructions to the agencies involved, should avoid harass-\n\n. B ments, hold-ups and red-tapes which are the bane of processual justice.\n\nThe jurisprudence of remedies is stil' a Cinderella of our system. The' Advocate General of Maharashtra assurd the Court that in the fair enforcement of the. law and the follow-ur \\f creating alternative credit agencies his client will take quick and impartial care.\n\nThe learned Attorney General, it may be mentioned before wind- C ing up this part of the. discussion, did draw our attention to Art. 254(2) whicl}_ is self-explanatory.\n\nThe State law will prevail in the State, even if there be repugnancy with a Central or existing law, given Presidential assent-provided both the legislations fall under the Concurrent List.\n\nDo they? He says, yes; and points, inter alia, lo bntry 6 (transfer of property) and Entry 7\n\n(contracts) .\n\nOf course, the law of contracts deals with pledges; so does the Gold Con- D trol Act. The latter does not prohibit pawns where gold is involved, but policies it to prevent evils by prescribing special modalities. The Debt Act relates to contracts and has fulfilled the requirement in Art. 254(2).\n\nWe have nearly come to the end of the judicatory jourliey and. nave reached the constitutional conclusion that the guarantee that Trade and Commerce and Intercourse shall be free does not necessitate that the little lendee shall remain unfree.\n\nArticle 301 does permit, in our view, legislative action to break agrarian indebtedness and urban usurious bondage lest social disorder disruptive of Trade, break\n\nOUt.\n\nThe impugned Act is a partial implementation of the economia thesis of Adam Smith when he wrote, two hundred obsolescent years ago:\n\n\"No society can surely be flourishing and happy, of which by far the greater part of the numbers are poor and mi9irable.\"\n\nWe are in a Republic with social justice as its indelible signature.\n\nG And the measure under challenge promotes social justice, social order and better conditions for the business of healthy money lending.\n\nThe appalling indebtness which cripples our people is an unhappy l1eritage of our economic system.\n\nThe bonded yesterday, the yoke cf today, and the hope of tomorrow obligate the State to spell out the future tense of the rural human order and to focus on the legislative strategies of alleviation before the backlash of social confusion begins, and to administer, through working mechanisms, and direct,\n\n7-206SCI/77 .;'ve111h\n\nthrough social cybernetics, our disenchanted society into fresh formulations of a free future.\n\nWithout such governmental measures of rural regeneration even the good moneylenders may have to fold up and the better businessmen wind up.\n\nThe larger interests of Trade, Commerce and Intercourse whose freedom is a constitutional norm demand that social order shall be preserved through legislative methodology, now radical, now reformatory but always motivated and moderated by the felt necessities of the times.\n\nTo come to humane terms with harsh realities by subjecting itself to the reasonable, though unpalatable, regulations of the Debt Act and like measures or to face the adaptational breakdown where law may fail to keep order against those who have nothing to lose except their chains-this is the sort of sociological Robson's choice before the 'money-lenders' of Maharashtra.· The option is obviously the former and that is the constitutional vindication of the impugned legislation. All these laws, in themselves marginal, are part of the programschrift for a Ne.w Deal which is the cornerstone of the Co11stitution.\n\nWe have been addressed many minor criticisms which have chopped little logic and made out small discriminations but serious constitutional decisions go on major considerations, not gossamer-web flimsiness.\n\nWe have listened to these meticulous submissions but are not persuaded that we should even mention them in our longish judgment.\n\nA concluding caveat.\n\nThe poignant purpose of ending exploitative rural-urban lending to the weaker members of society is the validating v:irtue of this legislation, viewed from the constitutional angle. But, as Shri Nariman at some stage mentioned-and the learned Attorney General also concurred-mere farewell to existing debts is prone to prove a teasing illusion or promise of unreality unless the Administration fills the credit gap by an easy, accessible and needbased network of humane credit agencies, coupled with employment opportunities for the small man.\n\nThe experience of the past has not inspired adequate confidence.\n\nAuthoritative official pronouncement, however, owns that\n\n\"Arrangements so far made to give credit and inputs (for rural credit) have had only limited impact.\n\nThe problem is a vast one and seems to be growing in size.\n\nRural banks, credit societies, farmers' service societies-all these have to be strengthened and their activities expanded.\n\nTo give purposeful direction to this task and to ensure that the interests of agriculturists .and farmers, especially the small farmer, are looked after, there is need for an Apex Agricultural Development Bank in India.\"\n\nThe legislation we uphold is' an added responsibility on the State. it shall be vigorously enforced with sympathy for the victim class, lest the progressive measure prove a paper tiger.\n\nThe cadres charged with enforcement must have right orientation correct grasp and social activism, if this 1'aw is not to leave a yawning implementation\n\n' ,. -\n\n' ...\n\nFATEI-lCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer,!.) 861\n\ngap.\n\nHeroics in court and hortation in the House must be followed by effective enforcement in the field.\n\nWe state this not because the State is not in great earnest-it is-but because many a welfare legislation in the country reportedly remains a cloistered virtue or slumbrous in effect.\n\nThe finest hour of the rule of law is when law disciplines life and matches promise with performance.\n\nOn this note of hopeful valediction we wind up .\n\nWe dismiss the appeals and the writ petitions, leaving the parties . to bear their costs, although we had at least on one occasion, sufficient provocation to make a different direction.\n\nP.H.P.\n\nAppeals dismissed", "total_entities": 217, "entities": [{"text": "FATEHCHAND HIMMATLAL & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "FATEHCHAND HIMMATLAL & OTHERS", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA ETC", "label": "RESPONDENT", "start_char": 31, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA ETC", "offset_not_found": false}}, {"text": "January 28, 1977", "label": "DATE", "start_char": 58, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "January 28, 1977\n\n[A. N. RAY, C.J., M. H. BEG, P. N. BHAGWATI, v. R. KRISHNA IYER\n\nAND S. M. FAZAL ALI, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 77, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 94, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 105, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "v. R. KRISHNA IYER", "label": "JUDGE", "start_char": 121, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "S. M. FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 145, "end_char": 165, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 168, "end_char": 189, "source": "regex", "metadata": {}}, {"text": "Article 301", "label": "PROVISION", "start_char": 190, "end_char": 201, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Whether incidental provisions can be struck down-Gold Colllrol Act 1968", "label": "STATUTE", "start_char": 495, "end_char": 566, "source": "regex", "metadata": {}}, {"text": "Schedule L", "label": "PROVISION", "start_char": 784, "end_char": 794, "source": "regex", "metadata": {"linked_statute_text": "Whether incidental provisions can be struck down-Gold Colllrol Act 1968", "statute": "Whether incidental provisions can be struck down-Gold Colllrol Act 1968"}}, {"text": "Maharashtra Debt Relief Act 1976", "label": "STATUTE", "start_char": 942, "end_char": 974, "source": "regex", "metadata": {}}, {"text": "Article 304(b )", "label": "PROVISION", "start_char": 1081, "end_char": 1096, "source": "regex", "metadata": {"linked_statute_text": "Maharashtra Debt Relief Act 1976", "statute": "Maharashtra Debt Relief Act 1976"}}, {"text": "Article 304", "label": "PROVISION", "start_char": 2466, "end_char": 2477, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 304(b)", "label": "PROVISION", "start_char": 2624, "end_char": 2638, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "So far as the Gold ornaments are concerned the field is occupied by the Gold Control Act 1968", "label": "STATUTE", "start_char": 2724, "end_char": 2817, "source": "regex", "metadata": {}}, {"text": "Parliament", "label": "ORG", "start_char": 2832, "end_char": 2842, "source": "ner", "metadata": {"in_sentence": "(3) So far as the Gold ornaments are concerned the field is occupied by the Gold Control Act 1968 passed by the Parliament."}}, {"text": "(1961) 1 SCR 809", "label": "CASE_CITATION", "start_char": 3799, "end_char": 3815, "source": "regex", "metadata": {}}, {"text": "(1970) 3 SCR 498", "label": "CASE_CITATION", "start_char": 4874, "end_char": 4890, "source": "regex", "metadata": {}}, {"text": "(1963) 1 SCR 491", "label": "CASE_CITATION", "start_char": 4927, "end_char": 4943, "source": "regex", "metadata": {}}, {"text": "Krishan Iyer", "label": "JUDGE", "start_char": 11275, "end_char": 11287, "source": "ner", "metadata": {"in_sentence": "The doctrine of occupied field does uot totally\nJIATEHCHAND HIMMATLAL v. MAHARASHTRA (Krishan Iyer, J.) 8 31\n\ndeprive the State Legislature from making any Jaw incidentally referable to A gold.", "canonical_name": "Krishalt Iyer"}}, {"text": "is no conflict between the Gold Control Act and the impugned Act", "label": "STATUTE", "start_char": 11590, "end_char": 11654, "source": "regex", "metadata": {}}, {"text": "Article 254(2)", "label": "PROVISION", "start_char": 11746, "end_char": 11760, "source": "regex", "metadata": {"linked_statute_text": "There is no conflict between the Gold Control Act and the impugned Act", "statute": "There is no conflict between the Gold Control Act and the impugned Act"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 11892, "end_char": 11920, "source": "ner", "metadata": {"in_sentence": "[858 B-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals No."}}, {"text": "article 32", "label": "PROVISION", "start_char": 12455, "end_char": 12465, "source": "regex", "metadata": {"linked_statute_text": "There is no conflict between the Gold Control Act and the impugned Act", "statute": "There is no conflict between the Gold Control Act and the impugned Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 12473, "end_char": 12494, "source": "regex", "metadata": {}}, {"text": "B. 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Maitland : \"A woman can never be outlawed, for a woman is C never in law.\""}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 29332, "end_char": 29340, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 29380, "end_char": 29388, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 30386, "end_char": 30394, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "must zero-in on the social group the Debt Act", "label": "STATUTE", "start_char": 30978, "end_char": 31023, "source": "regex", "metadata": {}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 31296, "end_char": 31304, "source": "regex", "metadata": {"linked_statute_text": "We must zero-in on the social group the Debt Act", "statute": "We must zero-in on the social group the Debt Act"}}, {"text": "Articles 38 and 39", "label": "PROVISION", "start_char": 32139, "end_char": 32157, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 304(b)", "label": "PROVISION", "start_char": 32240, "end_char": 32251, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Das", "label": "JUDGE", "start_char": 32400, "end_char": 32403, "source": "ner", "metadata": {"in_sentence": "Das, J., in Automobile Transport (') struck the truy note, if we may say so with great respect, that while the text of the Articles is a vital consideration in interpreting them, 'we must' at the same time, remember that we arc dealing with the Constitution of a country and the interconnection of the different part's of the Constitution forming part of an integrated whole'."}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 32887, "end_char": 32895, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Cicero", "label": "OTHER_PERSON", "start_char": 33489, "end_char": 33495, "source": "ner", "metadata": {"in_sentence": "We are the slaves of the law\", said Cicero, 'that we may be free'."}}, {"text": "Samuel Griffith", "label": "OTHER_PERSON", "start_char": 33525, "end_char": 33540, "source": "ner", "metadata": {"in_sentence": "Sir Samuel Griffith, C. J. in Duncan v. State of Queensland (22 CLR 556, 573), said : \"But the word 'free' does not mean extra legem any more than freedom means anarchy."}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 34248, "end_char": 34256, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Chamorbaughwala", "label": "OTHER_PERSON", "start_char": 34868, "end_char": 34883, "source": "ner", "metadata": {"in_sentence": "Not all systematic economic activity, even if not formally banned by the law, can be christened 'trade', he submits, and relies on Chamorbaughwala to reinforce this reason-\n\n(!) ["}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 35091, "end_char": 35099, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Taylor", "label": "JUDGE", "start_char": 35516, "end_char": 35522, "source": "ner", "metadata": {"in_sentence": "Taylor, J. made the trenchant observation\n\n\" .... whilst asserti•ng the width of the field in which s. 92 may operate it is necs3ary to observe that not every transaction which employs the forms of trade and commerce will, as trade and commerce, invoke its protection."}}, {"text": "s. 92", "label": "PROVISION", "start_char": 35616, "end_char": 35621, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 36021, "end_char": 36026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 36902, "end_char": 36907, "source": "regex", "metadata": {"statute": null}}, {"text": "United States of Amerita", "label": "GPE", "start_char": 37182, "end_char": 37206, "source": "ner", "metadata": {"in_sentence": "915-916)\n\nIn the United States of Amerita, operators of gambling sought the protection of the commerce clause."}}, {"text": "had separate arguments on the unreasonableness of the provisions of the Debt Act", "label": "STATUTE", "start_char": 41889, "end_char": 41969, "source": "regex", "metadata": {}}, {"text": "Article 301", "label": "PROVISION", "start_char": 42946, "end_char": 42957, "source": "regex", "metadata": {"linked_statute_text": "He had separate arguments on the unreasonableness of the provisions of the Debt Act", "statute": "He had separate arguments on the unreasonableness of the provisions of the Debt Act"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 43080, "end_char": 43087, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 43146, "end_char": 43154, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 43410, "end_char": 43418, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 43436, "end_char": 43443, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jawaharlal Nehru", "label": "OTHER_PERSON", "start_char": 44432, "end_char": 44448, "source": "ner", "metadata": {"in_sentence": "The worker and peasant of India whose lot is to be 'born to Endless Night' is symbolized by Jawaharlal Nehru, an architect of the Constitution, as the Man with the Hoe:\n\n\"Bowed by the weight of centuries he leans\n\nUpon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the world."}}, {"text": "June 30, 1971", "label": "DATE", "start_char": 45912, "end_char": 45925, "source": "ner", "metadata": {"in_sentence": "It has been estimated that the aggregate borrowings of all rural households on June 30, 1971 was Rs."}}, {"text": "Krishalt Iyer", "label": "JUDGE", "start_char": 47004, "end_char": 47017, "source": "ner", "metadata": {"in_sentence": "....\n\n,<'\n\n...\n\nE'ATL\\HCH.4.)ID HIMMATLAL v. MAHARASHTRA (Krishalt Iyer, J.) 8.43 •'\n\n3.", "canonical_name": "Krishalt Iyer"}}, {"text": "M. Gopalan", "label": "OTHER_PERSON", "start_char": 47811, "end_char": 47821, "source": "ner", "metadata": {"in_sentence": "emphasis, added)\n\n('Current Trends in Rural Indebtedness-by M. Gopalan & V. Kulandaiswamy-Eastern Economist d/ April 23, 1976 Vol."}}, {"text": "V. Kulandaiswamy", "label": "OTHER_PERSON", "start_char": 47824, "end_char": 47840, "source": "ner", "metadata": {"in_sentence": "emphasis, added)\n\n('Current Trends in Rural Indebtedness-by M. Gopalan & V. Kulandaiswamy-Eastern Economist d/ April 23, 1976 Vol."}}, {"text": "Pani•kar", "label": "JUDGE", "start_char": 47920, "end_char": 47928, "source": "ner", "metadata": {"in_sentence": "826-829) -\n\nProfessor Pani•kar, referri!lg to the nightmare of debt has t}lis to say :\n\n\"Perhaps, it may be that the need for bqrrowing is taken for granted."}}, {"text": "Ghosh", "label": "OTHER_PERSON", "start_char": 48281, "end_char": 48286, "source": "ner", "metadata": {"in_sentence": "Thus, Alai: Ghosh quotes with approbati'On the French proverb that 'Credit supports the farmer as the hangman's rope the hanged'.\""}}, {"text": "Bhattacharya", "label": "PETITIONER", "start_char": 48494, "end_char": 48506, "source": "ner", "metadata": {"in_sentence": "Ltd., Bombay, 1970)\n\nDr. Bhattacharya, in his book 'Social Security Measures (Metropolitan Book Co., Delhi, 1970) dwells on the agricultural indebtedness :\n\nin India' problem of\n\n\"A sample survey conducted by Second Agricultural Commission revealed the grim condition of rural indebtedness."}}, {"text": "Second Agricultural Commission", "label": "ORG", "start_char": 48678, "end_char": 48708, "source": "ner", "metadata": {"in_sentence": "Ltd., Bombay, 1970)\n\nDr. Bhattacharya, in his book 'Social Security Measures (Metropolitan Book Co., Delhi, 1970) dwells on the agricultural indebtedness :\n\nin India' problem of\n\n\"A sample survey conducted by Second Agricultural Commission revealed the grim condition of rural indebtedness."}}, {"text": "Dhires Bhattacharya", "label": "OTHER_PERSON", "start_char": 49786, "end_char": 49805, "source": "ner", "metadata": {"in_sentence": "164-165)\n\nDhires Bhattacharya in his 'Concise History of the Indian Economy'\n\n(Progressve Publishers, Calcutta, 1972) refers to the Indian rural drama and the role of the anti-hero played by the_ money-lender :"}}, {"text": "Calcutta", "label": "GPE", "start_char": 49878, "end_char": 49886, "source": "ner", "metadata": {"in_sentence": "164-165)\n\nDhires Bhattacharya in his 'Concise History of the Indian Economy'\n\n(Progressve Publishers, Calcutta, 1972) refers to the Indian rural drama and the role of the anti-hero played by the_ money-lender :"}}, {"text": "Poona", "label": "GPE", "start_char": 50501, "end_char": 50506, "source": "ner", "metadata": {"in_sentence": "The agricultural riots in Poona and Ahmednagar in Bombay Presidency in 1875 are most widely known because they were followed by the appointment of a Commission of Inquiry.\" ("}}, {"text": "Ahmednagar", "label": "GPE", "start_char": 50511, "end_char": 50521, "source": "ner", "metadata": {"in_sentence": "The agricultural riots in Poona and Ahmednagar in Bombay Presidency in 1875 are most widely known because they were followed by the appointment of a Commission of Inquiry.\" ("}}, {"text": "Bombay Presidency", "label": "GPE", "start_char": 50525, "end_char": 50542, "source": "ner", "metadata": {"in_sentence": "The agricultural riots in Poona and Ahmednagar in Bombay Presidency in 1875 are most widely known because they were followed by the appointment of a Commission of Inquiry.\" ("}}, {"text": "A. N.\n\nAgrawal", "label": "OTHER_PERSON", "start_char": 51440, "end_char": 51454, "source": "ner", "metadata": {"in_sentence": "A. N.\n\nAgrawal, in his book 'Indian Economy' (Vikas Publishing House) indicates that 'money-lenders charge heavy interest ranging from 15% 50% and often more."}}, {"text": "C. B. Mamoria", "label": "OTHER_PERSON", "start_char": 53499, "end_char": 53512, "source": "ner", "metadata": {"in_sentence": "Dr. C. B. Mamoria in his book 'Agricultural Problems of India' (Kitab Mahal) has stressed that rural indebtedness has long bem one of the most pressing problems of India. \""}}, {"text": "Kitab Mahal", "label": "OTHER_PERSON", "start_char": 53559, "end_char": 53570, "source": "ner", "metadata": {"in_sentence": "Dr. C. B. Mamoria in his book 'Agricultural Problems of India' (Kitab Mahal) has stressed that rural indebtedness has long bem one of the most pressing problems of India. \""}}, {"text": "Wold", "label": "OTHER_PERSON", "start_char": 53926, "end_char": 53930, "source": "ner", "metadata": {"in_sentence": "as the principal and interest went on increasing for most of them .. According to Wold, 'The country h<'.5\n\nbeen in the grip of Mahajans."}}, {"text": "Rural artisans", "label": "PETITIONER", "start_char": 54311, "end_char": 54325, "source": "ner", "metadata": {"in_sentence": "Rural artisans, industrial workers, marginal farmers :md indigent agriculturists have been steeped in debt despite statutory measures and ineffective credit institutions."}}, {"text": "A Nariman", "label": "LAWYER", "start_char": 55498, "end_char": 55507, "source": "ner", "metadata": {"in_sentence": "Nor is there anything in this Report or in any other literary material on rural economics (particularly relating to artisans, workers and collap- -sing cu1tivat01s) to substantiate the dichotomy of scrupulous and un- -scrupulous moneylenders, vehemently pressed before us by Shri\n\nA Nariman."}}, {"text": "Patanjali Sastri", "label": "JUDGE", "start_char": 56196, "end_char": 56212, "source": "ner", "metadata": {"in_sentence": "Patanjali Sastri C.J., in State of Madras\n\nv. V. G. Rao(') observed :\n\n\"It is important in this context to bear in mind that the:, test of reasonableness wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 57391, "end_char": 57411, "source": "ner", "metadata": {"in_sentence": "In the counter affidavit filed on behalf of the State of Maharashtra, F a lurid presentation of the lender-borrower scenario is found."}}, {"text": "Bombay", "label": "GPE", "start_char": 57621, "end_char": 57627, "source": "ner", "metadata": {"in_sentence": "The deponent states :\n\n\" ... that it was a common sight around the secretariat, Government Offices, Textile Mills, factories and elsewhere in Bombay to find moneylenders waiting at the gates to catch workers to collect their dues.\""}}, {"text": "State of Bombay", "label": "GPE", "start_char": 57981, "end_char": 57996, "source": "ner", "metadata": {"in_sentence": "The a:ffida1it goes on to i; t11te :\n\n\"I say that in Maharashtra and its predecessors the State of Bombay there have been several legislations on this subject including the Deccan Agricultural Debt Relief Act, 1879, Bombay Agricultural Debtors Relief Act, 1939, 1946\n\n(1) [1952] S.C.R. 597."}}, {"text": "Bombay Agricultural Debtors Relief Act, 1939", "label": "STATUTE", "start_char": 58107, "end_char": 58151, "source": "regex", "metadata": {}}, {"text": "S47", "label": "PROVISION", "start_char": 58238, "end_char": 58241, "source": "regex", "metadata": {"linked_statute_text": "Bombay Agricultural Debtors Relief Act, 1939", "statute": "Bombay Agricultural Debtors Relief Act, 1939"}}, {"text": "Madhya Pradesh Postponement of Execution of Decree Act, 1956", "label": "STATUTE", "start_char": 58287, "end_char": 58347, "source": "regex", "metadata": {}}, {"text": "Reserw Bank of India", "label": "ORG", "start_char": 58638, "end_char": 58658, "source": "ner", "metadata": {"in_sentence": "The Reserw Bank of India survey established that the total debt liabihties in the rural areas in Maharashtra was Rs."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 58811, "end_char": 58832, "source": "ner", "metadata": {"in_sentence": "Reserve Bank of India also indicated weaker sections of the community thereby showing the extent of the burden of debt on the weaker sections of the community."}}, {"text": "British Government", "label": "ORG", "start_char": 60898, "end_char": 60916, "source": "ner", "metadata": {"in_sentence": "Any elementary book on Indian economics will disclose that even the British Government bad\n\nthought it necessary to make an enquiry into agricultural indebtedness."}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 65512, "end_char": 65520, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 304(b)", "label": "PROVISION", "start_char": 65739, "end_char": 65753, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 65804, "end_char": 65812, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 304(b)", "label": "PROVISION", "start_char": 66039, "end_char": 66050, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Shylock", "label": "OTHER_PERSON", "start_char": 66205, "end_char": 66212, "source": "ner", "metadata": {"in_sentence": "With persuasive pressure he invited us to look at the horror of procrustean infliction of equal hostility by the legislature in dealing with the asuric Shylock and the dharmic lender."}}, {"text": "Nari.man,", "label": "OTHER_PERSON", "start_char": 66429, "end_char": 66438, "source": "ner", "metadata": {"in_sentence": "Secondly 'How is it fair,' asks Shri Nari.man, 'that, if the object of the legislation is to save 'the victims of rural indebtendness and working class burdens that credit institutions should be exempted while non-institutionalised lenders should be picked out for hosj:ile treatment ?'", "canonical_name": "Nari.man,"}}, {"text": "Money-lenders of the type we are concerned with in the Debt Act", "label": "STATUTE", "start_char": 67307, "end_char": 67370, "source": "regex", "metadata": {}}, {"text": "Section 13", "label": "PROVISION", "start_char": 67616, "end_char": 67626, "source": "regex", "metadata": {"linked_statute_text": "Money-lenders of the type we are concerned with in the Debt Act", "statute": "Money-lenders of the type we are concerned with in the Debt Act"}}, {"text": "Chitale", "label": "OTHER_PERSON", "start_char": 70786, "end_char": 70793, "source": "ner", "metadata": {"in_sentence": "It was urged by Shri Chitale that the definitional deficiency in ignoring the movable wealth of debtors makes the scheme arbitrary and unreasonable."}}, {"text": "Art. 301", "label": "PROVISION", "start_char": 73171, "end_char": 73179, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Shri Nariman itemised the mischievous provisions in the Debt Act", "label": "STATUTE", "start_char": 73565, "end_char": 73629, "source": "regex", "metadata": {}}, {"text": "s. 7(5)", "label": "PROVISION", "start_char": 74331, "end_char": 74338, "source": "regex", "metadata": {"linked_statute_text": "Shri Nariman itemised the mischievous provisions in the Debt Act", "statute": "Shri Nariman itemised the mischievous provisions in the Debt Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 76274, "end_char": 76278, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 78449, "end_char": 78453, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 78545, "end_char": 78554, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(6)", "label": "PROVISION", "start_char": 79530, "end_char": 79537, "source": "regex", "metadata": {"statute": null}}, {"text": "Jyoti Pershad", "label": "OTHER_PERSON", "start_char": 81046, "end_char": 81059, "source": "ner", "metadata": {"in_sentence": "Our\n\nattention was drawn to the rulings reported as Jyoti Pershad('); Mohd."}}, {"text": "Mohd. Faruk", "label": "RESPONDENT", "start_char": 81064, "end_char": 81075, "source": "ner", "metadata": {"in_sentence": "Our\n\nattention was drawn to the rulings reported as Jyoti Pershad('); Mohd."}}, {"text": "Ganesh Beedi Works", "label": "RESPONDENT", "start_char": 81084, "end_char": 81102, "source": "ner", "metadata": {"in_sentence": "Faruk('); and Ganesh Beedi Works(') and other cases bearing on the necessity of a right of appeal, as an incident of fair hearing."}}, {"text": "B.\n\nSen", "label": "OTHER_PERSON", "start_char": 82517, "end_char": 82524, "source": "ner", "metadata": {"in_sentence": "Shri B.\n\nSen urged that the wiping out of private debts which formed the capital assets of the money-lenders--one of the main things .done by the Debt Act-was not in any of the legislative Lists and even if."}}, {"text": "(1970] 1 S.C.R. 156", "label": "CASE_CITATION", "start_char": 83197, "end_char": 83216, "source": "regex", "metadata": {}}, {"text": "(1974] 3 SC.R. 221", "label": "CASE_CITATION", "start_char": 83223, "end_char": 83241, "source": "regex", "metadata": {}}, {"text": "Article 246", "label": "PROVISION", "start_char": 84397, "end_char": 84408, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 84481, "end_char": 84497, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 246(3)", "label": "PROVISION", "start_char": 85688, "end_char": 85699, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Industries (Development and Regulation) Act, 1951", "label": "STATUTE", "start_char": 86121, "end_char": 86170, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 86350, "end_char": 86354, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 86378, "end_char": 86392, "source": "regex", "metadata": {"statute": null}}, {"text": "Gold Control Act, 1968", "label": "STATUTE", "start_char": 87082, "end_char": 87104, "source": "regex", "metadata": {}}, {"text": "Does it spell death sentence on the Debt Act", "label": "STATUTE", "start_char": 87395, "end_char": 87439, "source": "regex", "metadata": {}}, {"text": "Kannan Devan Mills", "label": "ORG", "start_char": 88512, "end_char": 88530, "source": "ner", "metadata": {"in_sentence": "In the Kannan Devan Mills Case(') this Court put the point tersely while dealing with Entry 52 of the Union List :\n\n\"Once it is declared by Parliament by law to be expedient itn the public interest to control the industry, Parliament can .legislate on that particular industry and the States would lose their power to legislate on that industry."}}, {"text": "List I Parliament H has made the Gold Control Act", "label": "STATUTE", "start_char": 89097, "end_char": 89146, "source": "regex", "metadata": {}}, {"text": "Gold Control Act, 1968", "label": "STATUTE", "start_char": 89672, "end_char": 89694, "source": "regex", "metadata": {}}, {"text": "State from making the impugned Act", "label": "STATUTE", "start_char": 89728, "end_char": 89762, "source": "regex", "metadata": {}}, {"text": "ParesfJ Chandra Chatteriee", "label": "JUDGE", "start_char": 89767, "end_char": 89793, "source": "ner", "metadata": {"in_sentence": "In ParesfJ Chandra Chatteriee( 1) Subba Rao J (as he then was) dealt with an apparent conflict beween the Central Act (The Tea Act) and a State legislation [The Assam Land (Requisition and Acquisition) Act,· 1948]."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 89798, "end_char": 89807, "source": "ner", "metadata": {"in_sentence": "In ParesfJ Chandra Chatteriee( 1) Subba Rao J (as he then was) dealt with an apparent conflict beween the Central Act (The Tea Act) and a State legislation [The Assam Land (Requisition and Acquisition) Act,· 1948]."}}, {"text": "Tea Act", "label": "STATUTE", "start_char": 89887, "end_char": 89894, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Umeal and imaginary conflicts between the Central and the State Act", "label": "STATUTE", "start_char": 90197, "end_char": 90264, "source": "regex", "metadata": {}}, {"text": "Kanan Devan", "label": "OTHER_PERSON", "start_char": 90327, "end_char": 90338, "source": "ner", "metadata": {"in_sentence": "In Kanan Devan (Supra) it was further pointed out :\n\n\"If the Act (the Tea Act) is within the competence of Parliament and the impugned Act is within the competence\n\nof the State, the petitioners must show that the impugned Act is repugnarit to the Tea Act but we can .see no conflict between the provisions of the impugned Act and the Tea Act.\""}}, {"text": "Tea Act", "label": "STATUTE", "start_char": 90394, "end_char": 90401, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Act is repugnarit to the Tea Act", "label": "STATUTE", "start_char": 90547, "end_char": 90579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Act and the Tea Act", "label": "STATUTE", "start_char": 90647, "end_char": 90666, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 90971, "end_char": 90980, "source": "ner", "metadata": {"in_sentence": "It was further pointed out by Ramaswami J in that case that some orf the entries overlap and seem to be in direct conflict but the duty of the Court is to reconcile and harmonize while giving the widest amplitude to the language of the Entries."}}, {"text": "see nothing in that decision which contradicts the position that while the Gold Control Act", "label": "STATUTE", "start_char": 91189, "end_char": 91280, "source": "regex", "metadata": {}}, {"text": "must be a real con- Hict between the two Act", "label": "STATUTE", "start_char": 92243, "end_char": 92287, "source": "regex", "metadata": {}}, {"text": "Art. 254(2)", "label": "PROVISION", "start_char": 93182, "end_char": 93193, "source": "regex", "metadata": {"linked_statute_text": "There must be a real con- Hict between the two Act", "statute": "There must be a real con- Hict between the two Act"}}, {"text": "Art. 254(2)", "label": "PROVISION", "start_char": 93608, "end_char": 93619, "source": "regex", "metadata": {"linked_statute_text": "We will presently examine it-then the State law may still prevail since the assent of the President has been obtained for the Debt Act", "statute": "We will presently examine it-then the State law may still prevail since the assent of the President has been obtained for the Debt Act"}}, {"text": "Art. 254(2)", "label": "PROVISION", "start_char": 94428, "end_char": 94439, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gold Act and the Debt Act", "label": "STATUTE", "start_char": 94979, "end_char": 95004, "source": "regex", "metadata": {}}, {"text": "Attorney General showed how by reading to gether the two Act", "label": "STATUTE", "start_char": 95486, "end_char": 95546, "source": "regex", "metadata": {}}, {"text": "Art. 254(2)", "label": "PROVISION", "start_char": 96403, "end_char": 96414, "source": "regex", "metadata": {"linked_statute_text": "Attorney General showed how by reading to gether the two Act", "statute": "Attorney General showed how by reading to gether the two Act"}}, {"text": "Art. 254(2)", "label": "PROVISION", "start_char": 97029, "end_char": 97040, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 301", "label": "PROVISION", "start_char": 97288, "end_char": 97299, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Adam Smith", "label": "OTHER_PERSON", "start_char": 97529, "end_char": 97539, "source": "ner", "metadata": {"in_sentence": "The impugned Act is a partial implementation of the economia thesis of Adam Smith when he wrote, two hundred obsolescent years ago:\n\n\"No society can surely be flourishing and happy, of which by far the greater part of the numbers are poor and mi9irable.\""}}, {"text": "Apex Agricultural Development Bank", "label": "ORG", "start_char": 100968, "end_char": 101002, "source": "ner", "metadata": {"in_sentence": "To give purposeful direction to this task and to ensure that the interests of agriculturists .and farmers, especially the small farmer, are looked after, there is need for an Apex Agricultural Development Bank in India.\""}}]}
{"document_id": "1977_2_862_864_EN", "year": 1977, "text": "SUKHDEV SINGH & ORS.\n\nGRAM SABHA BARI KHAD & ORS.\n\nJanuary 28, 1977\n\n[P. K. GOSWAMI AND p, N. SHJNGl-TAL, JJ.]\n\nPunjab Village Common Lands (Regulation) Act 1961, S. 2(g) proviso (iv), application to land under possession of owners.\n\nThe appellants filed a suit for a declaration that the suit land inherited by them was not \"shamlat deh\" within the meaning of section 2(g) of the Punjab\n\nVillage Common Land (Regulation) Act, 1961, because it was excluded by virtue of proviso (iv.) to the clause.\n\nThey contended that the revem1e records describing the land as \"shamlat deb\" also stated it to be \"in possession of the\n\nowners\", showing that it was not used as \"shamlat deh'', and furthermore, that it had been partly purchased and partly received as gift by their ancestor before 26th January, 1950, and thereby came within the scope of s. 2(g) proviso (iv) of the Act. The appellants failed before the Trial Court, Court of first appeal, and the High Court in second appeal.\n\nDismissing the appeal by special leave, the Court,\n\nHELD : ( 1) The fact that in 1914-15 it was recorded in the 'jamabandi' as \"shamlat deh\", shows that that particular character of the land was recognised even so far back, and it could not detract from that nature of the land merely because it was further stated in tbe 'jamabandi' that it was in the possession of the owners \"as per respective shares in khewat\".\n\n[863 F-G]\n\n(2) Proviso (iv) requires that in order to be excluded from the category of \"shamlat deb\", the land should have been acquired by purchase or in exchange for proprietary land from a co-sharer in the \"shamlat deb\", which is not so in the case of the appellants. [863 G]\n\nCIVIL .APPELLATE JURISDICTION : Civil Appeal No. 527 of 1975.\n\nAppeal by Special Leave from the Judgment and Order dated the 6-9-74 of the Punjab and Haryana High Court in R.S.A. No. 933 of\n\n1970.\n\nK. L. Gosain, N. N. Goswamy and Arvind Minocha for the Appellant. \"\n\nGokal Chand Mittal, J. D. Jain, Arun Jain and (Miss) K. Migkmi for Respondent.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-The plaintiffs who have been unsuccessful in the trial court, the court first appeal, and the High Court in second appeal, have filed the present appeal by special leave.\n\nThey raised their suit for a declaration that the suit land continued to be in their ownership in spite of the provisions of the Punjab Village Common Lands (Regulation) Act, 1961, hereinafter referred to as the Act.\n\nThey pleaded that the land had been purchased by their ancestor Udham Singh, who founded the village, from Raja Sansar Chand of Dholwaha, some time before 1884, and that some other land was\n\n' \"\n\n.--{\n\nSUKHDEV SINGH v. GRAM SABHA (Shinghal, J.) 86°3\n\ngifted to him by one Smt. Dhani.\n\nThey claimed that what they had thus acquired was not \"shamlat deh\" within the meaning of clause (g) of section 2 o'f the Act because it was excluded by virtue of subclause (iv) of the proviso to the clause.\n\nThat contention has been negatived all through, and the short question for decision is whether :my interference is called for with that view .\n\nIt ha, s not been disputed before us that the land in questiolll was described in the revenue records as \"shamlat deh'', . and excluded \"abadi deh.\" That has in fact been amply proved by the 'jamabandi' of the year 1914-15 which has been produced by the 'plaintiffs themselves and its genuineness has not been controverted before us.\n\nAs such, by virtue of the definition of \"shamlat deh\" in clause\n\n(g) of section 2, the suit land fall within the definition of \"shamlat deh\".\n\nThe question remains whether it was excluded from that definition by virtue of sub-clause (iv) of the proviso to clause (g) which reads as follows.-\n\n\"(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamilat deh is so recorded in the jamabandi or is supported by a valid deed;\"\n\nIt has been argued by counsel for the appellants that as the suit land was recorded in the aforesaid Jamabandi as \"village shamilat'', in possession of the owners, it should be held that the land was not used as \"shamlat deh.\" Counsel has argued further that as the land was purchased by the plaintiffs' ancestor Udham Singh who had founded the vil1age, from Raja Sansar Chand, and a part of it was .received by way of gift from Smt.\n\nDhani, before January 26, 1950, and it was so recorded. in the 'jamabandi', the suit land was excluded from the definition of \"shamlat deb\" by virtue of the aforesaid subclause (iv') of the proviso.\n\nThe argument is however untenable because: of two reasons.\n\nFirstly, the entry in the 'jamabandi' of 1914-15 which recorded that the land was in possession of: the owners, was quite innocuous, because it was made for the reason that it was in , nobody'else's possession.· The fact that even then it was recorded in the 'jamabandi' as \"sbamlat deh\" shows that that particul11r character of the land was recognised even as far back as 1914-15, and it could not detract from that nature of the land merely because it was further stated in the 'Jamabandi' that it. was in the possession of the owners \"as per respective shares in khewat\".\n\nSecondly, the aforesaid sub-clause (iv) requires that in order to be excluded from the category of \"shamlat deh\", the land should have been acquired by purchase or in exchange for proprietary land from a co-sharer in the \"shamlat deh.\" It is not in controversy before us, and is not even the case of the appellants, that the suit land was acquired by purchase or in exchange for proprietary land from any co-sharer in the \"shamlat deh.\" Then there is the further fact that the appellants have not been able to prove that the suit 'land was recorded\n\nSUPREME COURT REPORTS [1977] 2 s.c.R.\n\nin the 'Jamabandi' as having been so acquired; and they have not been able to produce any valid deed of purchase or exchange from any such co-sharer.\n\nWe are therefore unable to think that th~ view taken in the impugned Judgment of the High Court requires reconsideration.\n\nThe appeal fails and is dismissed with costs.\n\nM.R.\n\nAppeal dismissed.", "total_entities": 24, "entities": [{"text": "SUKHDEV SINGH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SUKHDEV SINGH & ORS", "offset_not_found": false}}, {"text": "GRAM SABHA BARI KHAD & ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "GRAM SABHA BARI KHAD & ORS", "offset_not_found": false}}, {"text": "January 28, 1977", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "January 28, 1977\n\n[P. K. GOSWAMI AND p, N. SHJNGl-TAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 70, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "S. 2(g)", "label": "PROVISION", "start_char": 163, "end_char": 170, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(g)", "label": "PROVISION", "start_char": 361, "end_char": 373, "source": "regex", "metadata": {"statute": null}}, {"text": "26th January, 1950", "label": "DATE", "start_char": 782, "end_char": 800, "source": "ner", "metadata": {"in_sentence": "They contended that the revem1e records describing the land as \"shamlat deb\" also stated it to be \"in possession of the\n\nowners\", showing that it was not used as \"shamlat deh'', and furthermore, that it had been partly purchased and partly received as gift by their ancestor before 26th January, 1950, and thereby came within the scope of s. 2(g) proviso (iv) of the Act."}}, {"text": "s. 2(g)", "label": "PROVISION", "start_char": 839, "end_char": 846, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL .APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1676, "end_char": 1705, "source": "ner", "metadata": {"in_sentence": "863 G]\n\nCIVIL .APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "K. L. Gosain", "label": "OTHER_PERSON", "start_char": 1874, "end_char": 1886, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy and Arvind Minocha for the Appellant. \""}}, {"text": "N. N. Goswamy", "label": "LAWYER", "start_char": 1888, "end_char": 1901, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy and Arvind Minocha for the Appellant. \""}}, {"text": "Arvind Minocha", "label": "LAWYER", "start_char": 1906, "end_char": 1920, "source": "ner", "metadata": {"in_sentence": "K. L. Gosain, N. N. Goswamy and Arvind Minocha for the Appellant. \""}}, {"text": "Gokal Chand Mittal", "label": "LAWYER", "start_char": 1943, "end_char": 1961, "source": "ner", "metadata": {"in_sentence": "Gokal Chand Mittal, J. D. Jain, Arun Jain and (Miss) K. Migkmi for Respondent."}}, {"text": "J. D. Jain", "label": "LAWYER", "start_char": 1963, "end_char": 1973, "source": "ner", "metadata": {"in_sentence": "Gokal Chand Mittal, J. D. Jain, Arun Jain and (Miss) K. Migkmi for Respondent."}}, {"text": "Arun Jain", "label": "LAWYER", "start_char": 1975, "end_char": 1984, "source": "ner", "metadata": {"in_sentence": "Gokal Chand Mittal, J. D. Jain, Arun Jain and (Miss) K. Migkmi for Respondent."}}, {"text": "K. Migkmi", "label": "LAWYER", "start_char": 1996, "end_char": 2005, "source": "ner", "metadata": {"in_sentence": "Gokal Chand Mittal, J. D. Jain, Arun Jain and (Miss) K. Migkmi for Respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 2067, "end_char": 2075, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The plaintiffs who have been unsuccessful in the trial court, the court first appeal, and the High Court in second appeal, have filed the present appeal by special leave."}}, {"text": "Udham Singh", "label": "OTHER_PERSON", "start_char": 2534, "end_char": 2545, "source": "ner", "metadata": {"in_sentence": "They pleaded that the land had been purchased by their ancestor Udham Singh, who founded the village, from Raja Sansar Chand of Dholwaha, some time before 1884, and that some other land was\n\n' \"\n\n.--{\n\nSUKHDEV SINGH v. GRAM SABHA (Shinghal, J.) 86°3\n\ngifted to him by one Smt."}}, {"text": "Raja Sansar Chand", "label": "OTHER_PERSON", "start_char": 2577, "end_char": 2594, "source": "ner", "metadata": {"in_sentence": "They pleaded that the land had been purchased by their ancestor Udham Singh, who founded the village, from Raja Sansar Chand of Dholwaha, some time before 1884, and that some other land was\n\n' \"\n\n.--{\n\nSUKHDEV SINGH v. GRAM SABHA (Shinghal, J.) 86°3\n\ngifted to him by one Smt."}}, {"text": "Dholwaha", "label": "GPE", "start_char": 2598, "end_char": 2606, "source": "ner", "metadata": {"in_sentence": "They pleaded that the land had been purchased by their ancestor Udham Singh, who founded the village, from Raja Sansar Chand of Dholwaha, some time before 1884, and that some other land was\n\n' \"\n\n.--{\n\nSUKHDEV SINGH v. GRAM SABHA (Shinghal, J.) 86°3\n\ngifted to him by one Smt."}}, {"text": "Dhani", "label": "OTHER_PERSON", "start_char": 2747, "end_char": 2752, "source": "ner", "metadata": {"in_sentence": "Dhani."}}, {"text": "section 2", "label": "PROVISION", "start_char": 2859, "end_char": 2868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 3515, "end_char": 3524, "source": "regex", "metadata": {"statute": null}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 4407, "end_char": 4423, "source": "ner", "metadata": {"in_sentence": "Dhani, before January 26, 1950, and it was so recorded."}}]}
{"document_id": "1977_2_865_870_EN", "year": 1977, "text": "• ....\n\nMUNICIPAL BOARD MAUNATH BHANJAN v.\n\nSWADESHI COTTON MILLS CO. LTD. & ORS.\n\nJanuary 28, .1977\n\n(Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]\n\nU.P. Municipalities Act, 1916, Ss. 131(3), 134(1) & (2), 135(2) and 300-Draft rules for levying octroi not changed after publication 11/s 131(3)- Whether their Re-publication necessary on mere reduction of tax rates-Re-publication only of reduced tax rates, whether violateS S. 300 and the General Clauses Act, S. 23-Resolution u/s 134(2), whether rgndered nugatory if passed before publication of rules-Notification u/s 135(2), whether requires specific reference to section.\n\nIn 1968-69 the respondent was constructing a textile factory within the area of the appellant Board, and obtained exemption from the levy of octroi on its incoming building material on the ground that it was a new concern. It then\n\ntarted bringing more articles within its premises with the result that octroi was demanded from it.\n\nThe Board got permission from the State Government for realising the same. In a writ petition by the respondent to challenge the levy, the High Court struck down the. imposition of octroi on three grounds :\n\nI. The provisions of Ss. 134 (I) and 300 of the Act and S. 23 of the General Clauses Act were violated owing to publication only of the tax rates and not the draft rules for the levy of octroi.\n\nII. The resolution of the Board u/s 134(2) could not authorise imposition of tax as it was passed before the publication of rules.\n\nIII. No notification was pJJblished as rquired u/s 135 (2).\n\nAllowing the appeal by special leave, the Court\n\nthe the\n\nHELD : 1. The draft rules were once published as required by sub-s. (3) ) of s. 131, and as only the rates hadbeen reduced and the rules had not been modified, it was not necessary to re-publish them. [868 A-Fl\n\nMunicipal Board, Hapur v. Raglmvendra Kripal & Ors. [1966] I SCR 950 and Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, [1965]\n\n1 SCR 970, referred to. ·\n\n2. The Resolution dated June 20, 1950, could authorise the imposition of the tax from July 15, 1950, although it was passed before the publication of the rules. The resolution was not rendered nugatory and it was not necessary for the Board to pass another one.\n\n[868 0-H]\n\n3. It is the nature of the not, ification which is decisive of the section under 'which it has been issued and it would not matter if it did not make a specific reference to sub-section (2) of section 135 and made a reference to Section 300 instead.\n\n[869 BJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 527 of 1976.\n\nAppeal by Special Leave from the Judgment and Order dated the 26-3-1976 of the Allahabad High Court in Civil Misc. Writ No. 6277 cf 1974.\n\nA L. N. Sinha, Sol. General, S. C. Agarwala and V. !. Francis for\n\nthe Appellant.\n\nYogeshwar Prasad and (Miss) Rani Arora for Respondent No. 1.\n\n0. P. Rana for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.\n\nThis appeal by special leave is directed against the judgment of the Allahabad High Court dated March 26, 1976. It relates to the validity of the imposition of octroi with effect from July 15, 1950, on certain goods brought within the Maunath Bhanjan Municipality, hereinafter referred to as the Board.\n\nThe challenge to the imposition was made by the Swadeshi Cotton Mills Company Ltd., hereinafter referred to as the Company.\n\nThe Company started constructing a textile factory, a part of which, at any rate, fell within the area of the Board.\n\nIt applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern.\n\nIt howeVler started bringing more articles within its premises, and the Octroi Superintendent made a demand for a payment octroi on June 25, 1969.\n\nThe Com-· parry tried to avoid the levy on the basis of the order of exemption, but the Executive Officer of the Board repeated the demand on May 30, 1970 and June 16, 1970.\n\nThe Board also wrote to the State Government for permission to realise octroi from the Company. The Government gave the permission to realise the tax.\n\nThe Company thereupon challenged the levy of the octroi in the High Court by a writ petition.\n\nThe High Court took the view that the initial imposition of the octroi was illegal, allowed the writ petition, and issued a mandamus directing the Board not .to realise the tax.\n\nThe Board feels aggrieved and has come up in appeal to this Court.\n\nIt appears that the Company took four grounds for challenging the levy of octroi, but the High Court examined only the following ground, as it took the view that it was enough for the Company's F . success in the petition, and did not examine the other grounds,-\n\n\"that the procedure prescribed for the imposition of taxes by municipal boards under sections 131 to 135 of the U.P. Municipalities Act, 1916, was not followed by the Municipal Board.\"\n\nCounsel for the parties have accordingly confined their arguments G to the finding of the High Court in favour of the Company on this ground. ·\n\nAs the ground on which the Company has succeeded is quite general and vague, we aked counsel for the parties to refer to the precise plea in that respect, in the writ petition.\n\nThey could however only invite our attention to ground No. 6 of the writ petition where H the Cc-mpany has merely stated that the imposition of octroi was void -and illegal \"because mandatory provisions for imposition of octroi ~-· tax as provided in the U.P. Municipalities Act has not been followed.\" It is therefore obvious, and has not been disputed before us, that the\n\nMUNICIPAL ~OARD v. SWADESHI COTTON (Shinghal, !.) 867\n\nCompany took a very vague ground to challenge the validity of the imposition of octroi, and left it to the High Court to embark on a roving and fishing inquiry, on the off chance of finding some violation of the so-called \"mandatory provisions for the imposition of octroi.\" It has not been disputed be.fore us that the High Court m:1dertook such an inquiry\\ and struck down the imposition on the followmg ground,-\n\n( 1) The draft rules for the levy of the tax were not published, and only the rates of octroi were published, so that there was violation of the provisions of section 23 of the General Clauses Act and sections 134 ( 1) and 300 of the Act.\n\n(2) The order of the District Magistrate, which was equivalent to the special resolution of the Board under sub-section (2) of section 134 was invalid as it was passed on .June 20, 1950, while the rules were finalised and published on July 15, 1950. ·\n\n(3) There was no \"foundation or basis\" of the notification under section 135 (2) and no such notification was published.\n\n Counsel for the Company however strenuously argued that there was no compliance with the provisions of sections 131 to 133 also, and made a reference to the decisions in, Municipal Board, Hapur v.\n\nRaglmvendra Kripal and others(') and Raza Buland Sugar Co. Ltd. v.\n\nMunicipal Board, Rampur('), for the purpose of showing that parts of sections 131 to 134 were mandatory, and had to be followed. We find that the High Court has categorically stated that the Company did not assert that sub-sections (2) and (3) of section 131 had not been complied with, and that there was \"no dispute regarding compliance with the provisions of section 131.\"\n\nThe High Court has also stated that the Company \"has not asserted! that any of the provisions of section 132 has not been followed.\" It J1as further stated that there was \"no complaint of non-compliance with the provisions of section 133 also.\" There was thus no challenge to the validity of the imposition of octroi on the ground that there was no compliance with the provisions of sections 131, 132 and 133 and we are not called upon to examine the argument that there was noJJ-compliance with the provisions of those sections.\n\nThere was also no dispute in the High Court th•at \"the Municipal Board was competent to impose octroi tax.\" We shall accordingly examine the three grounds, on which the High Court has held the imposi•tion of odroi as invalid, in this background.\n\nGround No. 1.\n\nThe. High Court has held that there was no previous publication of the draft rules for the levy of octroi and\n\nthat only the rates of octroi were published.\n\nSo that there was breach of the provisions of sections 134 ( 1) and 300 of the United H\n\n(1) [l966j 1 S.C.R. 950.\n\n(2) [1965] 1 S.C.R. 970.\n\nProvinces Municipalities Act, 1916, hereinafter referred to as the Act and seetion 23 of the General Clauses Act.\n\nIt will be recalled that\n\nhe H~&h Court has. found that the Company had not challenged the imposition of octro1 on the ground that there was non-compliance with the provisions of sections 131 to 133. It cannot therefore be disputed that the draft rules were puolished as required by sub-section ( 3) of section 131.\n\nMoreover we find from the affidavit which has been filed on behalf of the Board that its Officer incharge wrote to the prescribed Authority on January 9, 1950, that the draft rules had been published in the \"Sansar\" on November 1, 1949, and may be sanctioned.\n\nA copy of that letter has been placed on the record. It may also be mentioned that the Officer Incharge wrote to the Commissioner intimating that only two objections had been received, which were for reduction of the tax, and that after considering them the rate of the tax had been reduced from Rs. 1/8/- to Re. 1/- per maund, and the necessary amendment had been made in the rate chart. An objection was a'lso received from the Shoe Makers' Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals.\n\nThis was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it wasc not necessary to republish the draft rules.\n\nThe Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133.\n\nThe rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950.\n\nIt was stated in the notification that the rules were published under section 300 of the Act, which required their previous publication, but there can be no doubt that it was a notification under sub-section (2) of section 135 as it was issued after receipt of the Board's special resolution in pursuance of the sanction of the Prescribed Authority, and it was directed that the rules shall take effect from July 15, 1950.\n\nIt is therefore futile to contend that the rules were not made in accordance with the provisions of sections 134(1) and 300 of the Act and section 23 of the General Clauses Act which requires certain conditions to be observed in regard to the making of rules after previous publication.\n\nGround No. 2.\n\nIt is not in dispute that the, special resolution for the imposition of the tax was sent by the Officer Incharge of the Municipal Board on June 20, 1950, stating that July 15, 1950 had been fixed for the levy of the tax.\n\nIt is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20,\n\n1950 was rendered nugatory, or that it was necessary for the Board to pss another resolution.\n\nThe notificaion shos tha~ the. authority concerned not only published the resolut10n by its notification dated July 7, 1950, but also stated that they shall take. effect from July 15 1950 which was the date fixed by the resolut10n dated June 20,\n\nl 9SO, fo; the imposition of the tax.\n\nThe:e was therefore no justificati'on for taking the view that the resolution dated June 20, 1950 could not authorise the imposition of the tax from July 15, 1950,\n\nmerely because it was passed before the publication ?f the rules. At any rate any technical defect in the date of the resolut10n could not have\n\n--- -.\n\n.,,.-- ...\n\n' '\n\nMUNICIPAL BOARD v. SWADESHI COTTON (Shinghal, J.) 8 69\n\nthe effect of making the imposition void in the facts and circumstances of this case.\n\nGround No. 3.\n\nAs has been shown, the notification dated July 7, 1950, which was published under section 300 of the Act, was, in fact and substance, issued under the authority of sub-section (2) of\n\nsection 133, and it would not matter if it did not make a specific refe- B rence to that sub-section and made a reference to section 300 instead.\n\nThe High Court therefore erred in thinking that there was no notification under-sub-section (2) of section 135 at all.\n\nIt is the nature of the notification which is decisive of the section under which it has teen issued, and we have no doubt that the impugned notification was really issued under sub-section (2) of section 135.\n\nWe have thus no doubt that the notification had really been issued in compliance with the requirement of sub-section (2) of section 135 of the Act.\n\nThat would attract the application of sub-section ( 3) of that section which provides as follows,-\n\n\"135(3) A notification of the imposition of a tax under subsection (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of this Act.\"\n\nSo when a probative effect had been given by law making the notification of the imposition of the tax as \"conclusivle proof\" that the tax had been imposed \"in accordance with the provisions of the Act\",\n\nno evidence could be allowed to combat that fact, and we have no E hesitation in holding that the impos;'i:ion was according to the law.\n\nIt is not disputed that. Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950.\n\nThe Company started the construction of its factory in 1968-69, and, as has been stated, it applied for and obtained exemption from the levy of octroi on its building material on the ground that it was a new concern. The F Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Company's fotter dated August 18, 1967.\n\nThe Company prayed for the continuance of the exemption even after that time limit.\n\nThe State Government however granted the exemption for five years.\n\nThe Company started \"importing\" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the G Company with effect from May, 1974.\n\nThe Company once again applied for further exemption on August 14, 1973, but without success.\n\nIt is thus clear that, far from having any doubts about the validity of the imposition and levy of octroi, the Company accepted the validity thereof and prayed 'for exemption.\n\nIt availed of that exemption, for some years, and applied for its extension until as late as August 14, l 973.\n\nIt was only when further exemption was refused, that the H Company thought of filing the writ petition.\n\nAs has been shown, the Company did not, even then, venture to point out any reason why the imposition could be said to be invalid, and merely stated that the\n\n\"procedure\" prescrib_ed under sections 131-135 had not been followed.\n\nThat was far too vague a plea to justify investigation and interference in the exercise of the extraordinary jurisdiction of the High Court under artic]e 226 of the Constitution.\n\nThe appeal is allowed, the impugned judgment of the High- Court dated March 26, 1976, is set aside, and the writ petition is dismissed with costs.\n\nM.R.\n\nAppeal al/owed.", "total_entities": 84, "entities": [{"text": "MUNICIPAL BOARD MAUNATH BHANJAN", "label": "PETITIONER", "start_char": 8, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL BOARD MAUNATH BHANJAN", "offset_not_found": false}}, {"text": "SWADESHI COTTON MILLS CO. LTD. & ORS", "label": "RESPONDENT", "start_char": 44, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "SWADESHI COTTON MILLS CO. LTD. & ORS", "offset_not_found": false}}, {"text": "January 28, .1977", "label": "DATE", "start_char": 83, "end_char": 100, "source": "ner", "metadata": {"in_sentence": "January 28, .1977\n\n(Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 103, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 152, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "Ss. 131(3), 134(1)", "label": "PROVISION", "start_char": 178, "end_char": 196, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s 131(3)", "label": "PROVISION", "start_char": 283, "end_char": 291, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "S. 300", "label": "PROVISION", "start_char": 422, "end_char": 428, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 437, "end_char": 456, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 23", "label": "PROVISION", "start_char": 458, "end_char": 463, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s 134(2)", "label": "PROVISION", "start_char": 477, "end_char": 485, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "s 135(2)", "label": "PROVISION", "start_char": 566, "end_char": 574, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1916", "statute": "Municipalities Act, 1916"}}, {"text": "Ss. 134", "label": "PROVISION", "start_char": 1187, "end_char": 1194, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 23", "label": "PROVISION", "start_char": 1222, "end_char": 1227, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 1235, "end_char": 1254, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s 134(2)", "label": "PROVISION", "start_char": 1395, "end_char": 1403, "source": "regex", "metadata": {"statute": null}}, {"text": "s 135", "label": "PROVISION", "start_char": 1542, "end_char": 1547, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 131", "label": "PROVISION", "start_char": 1689, "end_char": 1695, "source": "regex", "metadata": {"statute": null}}, {"text": "[1965]\n\n1 SCR 970", "label": "CASE_CITATION", "start_char": 1952, "end_char": 1969, "source": "regex", "metadata": {}}, {"text": "June 20, 1950", "label": "DATE", "start_char": 2011, "end_char": 2024, "source": "ner", "metadata": {"in_sentence": "The Resolution dated June 20, 1950, could authorise the imposition of the tax from July 15, 1950, although it was passed before the publication of the rules."}}, {"text": "section 135", "label": "PROVISION", "start_char": 2454, "end_char": 2465, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 300", "label": "PROVISION", "start_char": 2490, "end_char": 2501, "source": "regex", "metadata": {"statute": null}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 2724, "end_char": 2735, "source": "ner", "metadata": {"in_sentence": "A L. N. Sinha, Sol."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 2751, "end_char": 2765, "source": "ner", "metadata": {"in_sentence": "General, S. C. Agarwala and V. !."}}, {"text": "V. !. Francis", "label": "LAWYER", "start_char": 2770, "end_char": 2783, "source": "ner", "metadata": {"in_sentence": "General, S. C. Agarwala and V. !."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 2805, "end_char": 2821, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad and (Miss) Rani Arora for Respondent No."}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 2833, "end_char": 2843, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad and (Miss) Rani Arora for Respondent No."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 2870, "end_char": 2877, "source": "ner", "metadata": {"in_sentence": "P. Rana for Respondent No."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 2945, "end_char": 2953, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.\n\nThis appeal by special leave is directed against the judgment of the Allahabad High Court dated March 26, 1976."}}, {"text": "July 15, 1950", "label": "DATE", "start_char": 3143, "end_char": 3156, "source": "ner", "metadata": {"in_sentence": "It relates to the validity of the imposition of octroi with effect from July 15, 1950, on certain goods brought within the Maunath Bhanjan Municipality, hereinafter referred to as the Board."}}, {"text": "Maunath Bhanjan Municipality", "label": "GPE", "start_char": 3194, "end_char": 3222, "source": "ner", "metadata": {"in_sentence": "It relates to the validity of the imposition of octroi with effect from July 15, 1950, on certain goods brought within the Maunath Bhanjan Municipality, hereinafter referred to as the Board."}}, {"text": "Swadeshi Cotton Mills Company Ltd.", "label": "ORG", "start_char": 3311, "end_char": 3345, "source": "ner", "metadata": {"in_sentence": "The challenge to the imposition was made by the Swadeshi Cotton Mills Company Ltd., hereinafter referred to as the Company."}}, {"text": "June 25, 1969", "label": "DATE", "start_char": 3767, "end_char": 3780, "source": "ner", "metadata": {"in_sentence": "It howeVler started bringing more articles within its premises, and the Octroi Superintendent made a demand for a payment octroi on June 25, 1969."}}, {"text": "May 30, 1970", "label": "DATE", "start_char": 3925, "end_char": 3937, "source": "ner", "metadata": {"in_sentence": "The Com-· parry tried to avoid the levy on the basis of the order of exemption, but the Executive Officer of the Board repeated the demand on May 30, 1970 and June 16, 1970."}}, {"text": "June 16, 1970", "label": "DATE", "start_char": 3942, "end_char": 3955, "source": "ner", "metadata": {"in_sentence": "The Com-· parry tried to avoid the levy on the basis of the order of exemption, but the Executive Officer of the Board repeated the demand on May 30, 1970 and June 16, 1970."}}, {"text": "sections 131 to 135", "label": "PROVISION", "start_char": 4801, "end_char": 4820, "source": "regex", "metadata": {"statute": null}}, {"text": "Municipalities Act, 1916", "label": "STATUTE", "start_char": 4833, "end_char": 4857, "source": "regex", "metadata": {}}, {"text": "section 23", "label": "PROVISION", "start_char": 6230, "end_char": 6240, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 6248, "end_char": 6267, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 134", "label": "PROVISION", "start_char": 6272, "end_char": 6284, "source": "regex", "metadata": {"statute": null}}, {"text": "section 134", "label": "PROVISION", "start_char": 6438, "end_char": 6449, "source": "regex", "metadata": {"statute": null}}, {"text": ".June 20, 1950", "label": "DATE", "start_char": 6482, "end_char": 6496, "source": "ner", "metadata": {"in_sentence": "(2) The order of the District Magistrate, which was equivalent to the special resolution of the Board under sub-section (2) of section 134 was invalid as it was passed on .June 20, 1950, while the rules were finalised and published on July 15, 1950. ·"}}, {"text": "section 135", "label": "PROVISION", "start_char": 6629, "end_char": 6640, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 131 to 133", "label": "PROVISION", "start_char": 6790, "end_char": 6809, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 131 to 134", "label": "PROVISION", "start_char": 7022, "end_char": 7041, "source": "regex", "metadata": {"statute": null}}, {"text": "section 131", "label": "PROVISION", "start_char": 7200, "end_char": 7211, "source": "regex", "metadata": {"statute": null}}, {"text": "section 131", "label": "PROVISION", "start_char": 7315, "end_char": 7326, "source": "regex", "metadata": {"statute": null}}, {"text": "section 132", "label": "PROVISION", "start_char": 7427, "end_char": 7438, "source": "regex", "metadata": {"statute": null}}, {"text": "section 133", "label": "PROVISION", "start_char": 7556, "end_char": 7567, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 131, 132 and 133", "label": "PROVISION", "start_char": 7713, "end_char": 7738, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 134", "label": "PROVISION", "start_char": 8327, "end_char": 8339, "source": "regex", "metadata": {"statute": null}}, {"text": "[1965] 1 S.C.R. 970", "label": "CASE_CITATION", "start_char": 8400, "end_char": 8419, "source": "regex", "metadata": {}}, {"text": "Provinces Municipalities Act, 1916", "label": "STATUTE", "start_char": 8422, "end_char": 8456, "source": "regex", "metadata": {}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 8515, "end_char": 8534, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 131 to 133", "label": "PROVISION", "start_char": 8716, "end_char": 8735, "source": "regex", "metadata": {"linked_statute_text": "Provinces Municipalities Act, 1916", "statute": "Provinces Municipalities Act, 1916"}}, {"text": "section 131", "label": "PROVISION", "start_char": 8840, "end_char": 8851, "source": "regex", "metadata": {"linked_statute_text": "Provinces Municipalities Act, 1916", "statute": "Provinces Municipalities Act, 1916"}}, {"text": "January 9, 1950", "label": "DATE", "start_char": 8997, "end_char": 9012, "source": "ner", "metadata": {"in_sentence": "Moreover we find from the affidavit which has been filed on behalf of the Board that its Officer incharge wrote to the prescribed Authority on January 9, 1950, that the draft rules had been published in the \"Sansar\" on November 1, 1949, and may be sanctioned."}}, {"text": "November 1, 1949", "label": "DATE", "start_char": 9073, "end_char": 9089, "source": "ner", "metadata": {"in_sentence": "Moreover we find from the affidavit which has been filed on behalf of the Board that its Officer incharge wrote to the prescribed Authority on January 9, 1950, that the draft rules had been published in the \"Sansar\" on November 1, 1949, and may be sanctioned."}}, {"text": "Shoe Makers' Association", "label": "ORG", "start_char": 9545, "end_char": 9569, "source": "ner", "metadata": {"in_sentence": "An objection was a'lso received from the Shoe Makers' Association, and the Commissioner directed that if the Board wanted to make any modification, it may again publish the modified proposals."}}, {"text": "February 14, 1950", "label": "DATE", "start_char": 9715, "end_char": 9732, "source": "ner", "metadata": {"in_sentence": "This was done on February 14, 1950, but as only the rates had been reduced, and the rules had not been modified, it wasc not necessary to republish the draft rules."}}, {"text": "April 1, 1950", "label": "DATE", "start_char": 9924, "end_char": 9937, "source": "ner", "metadata": {"in_sentence": "The Prescribed Authority accordingly sanctioned the same on April 1, 1950, under section 133."}}, {"text": "section 133", "label": "PROVISION", "start_char": 9945, "end_char": 9956, "source": "regex", "metadata": {"statute": null}}, {"text": "April 26, 1950", "label": "DATE", "start_char": 10015, "end_char": 10029, "source": "ner", "metadata": {"in_sentence": "The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950."}}, {"text": "July 7, 1950", "label": "DATE", "start_char": 10077, "end_char": 10089, "source": "ner", "metadata": {"in_sentence": "The rules were forwarded to the Prescribed Authority on April 26, 1950, and were published in the State Gazette dated July 7, 1950."}}, {"text": "section 300", "label": "PROVISION", "start_char": 10162, "end_char": 10173, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 10307, "end_char": 10318, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 134(1) and 300", "label": "PROVISION", "start_char": 10616, "end_char": 10639, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 10655, "end_char": 10665, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 10673, "end_char": 10692, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "June 20,\n\n1950", "label": "DATE", "start_char": 11205, "end_char": 11219, "source": "ner", "metadata": {"in_sentence": "It is true that the rules were published under the notification dated July 7, 1950, but that would not necessarily lead to the conclusion that the resolution dated June 20,\n\n1950 was rendered nugatory, or that it was necessary for the Board to pss another resolution."}}, {"text": "section 300", "label": "PROVISION", "start_char": 12171, "end_char": 12182, "source": "regex", "metadata": {"statute": null}}, {"text": "section 133", "label": "PROVISION", "start_char": 12273, "end_char": 12284, "source": "regex", "metadata": {"statute": null}}, {"text": "section 300", "label": "PROVISION", "start_char": 12398, "end_char": 12409, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 12519, "end_char": 12530, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 12737, "end_char": 12748, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 12875, "end_char": 12886, "source": "regex", "metadata": {"statute": null}}, {"text": "Maunath Bhanjan", "label": "GPE", "start_char": 13543, "end_char": 13558, "source": "ner", "metadata": {"in_sentence": "Maunath Bhanjan is an industrial town, and its Board was collecting octroi since July 15, 1950."}}, {"text": "July 21, 1967", "label": "DATE", "start_char": 13894, "end_char": 13907, "source": "ner", "metadata": {"in_sentence": "The F Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Company's fotter dated August 18, 1967."}}, {"text": "August 18, 1967", "label": "DATE", "start_char": 13996, "end_char": 14011, "source": "ner", "metadata": {"in_sentence": "The F Board granted the exemption on July 21, 1967, for a period of 10 years, and that fact was acknowledged in the Company's fotter dated August 18, 1967."}}, {"text": "April 2, 1973", "label": "DATE", "start_char": 14291, "end_char": 14304, "source": "ner", "metadata": {"in_sentence": "The Company started \"importing\" certain other articles, and the State Government ultimately gave permission to the Board on April 2, 1973 to realise octroi from the G Company with effect from May, 1974."}}, {"text": "August 14, 1973", "label": "DATE", "start_char": 14427, "end_char": 14442, "source": "ner", "metadata": {"in_sentence": "The Company once again applied for further exemption on August 14, 1973, but without success."}}, {"text": "August 14, l 973", "label": "DATE", "start_char": 14736, "end_char": 14752, "source": "ner", "metadata": {"in_sentence": "It availed of that exemption, for some years, and applied for its extension until as late as August 14, l 973."}}, {"text": "sections 131", "label": "PROVISION", "start_char": 15049, "end_char": 15061, "source": "regex", "metadata": {"statute": null}}, {"text": "March 26, 1976", "label": "DATE", "start_char": 15340, "end_char": 15354, "source": "ner", "metadata": {"in_sentence": "The appeal is allowed, the impugned judgment of the High- Court dated March 26, 1976, is set aside, and the writ petition is dismissed with costs."}}]}
{"document_id": "1977_2_871_876_EN", "year": 1977, "text": "CHHAGAN LAL v.\n\nMUNICIPAL CORPORATION, INDORE\n\nJanuary 28, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM: JJ.]\n\nM.P. Municipal Corporation Act, 1956-House Tax levied under the .Madhya Bliarat Municipalities Act, 1954-0n appeal corporation directed to decide the assessment afresh-Whether tax is payable from tile date of original assessment or after remand .\n\n. Under the Madhya Bharat Municipalities Act, 1954, the Municipal Corporation determined the house tax payable by the appellant in respect of his bouse\n\nwith effect .from April 1, 1954.\n\nOn appeal by the appellant regarding assess- C ment, the Additional District Judge remanded the case to the Corporation for a fresh decision after due enquiry. Ultimately, by a notice dated October 12, 1965 issued under s. 146 of the Madhya Pradesh Municipal Corporation Act, 1956 (as amended in 1961) the Corporation revised the amount of (ax payable but maintained the date of liability for payment of tax as April 1, 1954.\n\nOn appeal by the appellant, the additional District Judge held that the tax was payable with effect from April 1, 1965 and not April 1, 1954 for the reason that the tax was finally fixed after the notice dated October 12, 1965. The Revision Petition of the Corporation was allowed by the High Court holding that tax was D payable from April 1, 1954 because the proceedings were started even before the 1956-Act came into force.\n\nIn appeal to this Court the appellant contended that (1) as the fresh notice was issued under s. 146 of the 1956-Act on October 12, 1965 after remand of the case by the District Judge, house tax could be imposed only with effect from April l, 1965 and not retrospectively and (2) the order of the District Judge being final under s. 149(1) of the 1956-Act the High Court had no juris- E diction to interfere with that order and in any event the High Court exceeded its power under s. 115, C.P.C.\n\nDismissing the appeal.\n\nHELD : The proceeding relating to the house tax was a continuous proceeding relating to the tax payable from April l, 19 54 and the notice issued by the Corporation after remand by the District Judge did not amount to notice of fresh assessment or re-assessment. [87 4 E-F] F\n\n1. There is no force in the contention that under the 1956-Act the municipality had no power to pursue the proceedings regarding the levy of tax for an earlier period. The notice issued by the Corporation to the appellant made it clear that the Commissioner was proceeding to fix the value in pursuance of the remand.\n\nThe appellant's plea that the Commissioner was not authorised to determine the value and impose the tax for any period before the date of issue of the notice ignores the fact that the valuation and determination of tax from G 1954 was pending and the proceedings related to that period.\n\nSection 3(3) of the 1956-Act provides that all rates, taxes and sums of money due to the Municipalities when this Act was made applicable shall be deemed to be dne to the Corporation and sub-s. ( 4) states that all suits and other legal proceedings institued by or against a Municipality may be conuinued by or against the Corporation. The proceedings in, the instant case were originally taken under the Madhya Bharat Municipalities Act, 1954 and the proceedings regarding the levy of the house tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings. [874 F-C, 875 A-DJ H\n\n2. (a) Under s. 115, C.P.C. the High Court has power to revise the order passed by Courts subordinate to it.\n\nThe District Court being subordinate to\n\nA the High Court, is liable to the revisional jurisdiction of the High Court. Moreover, the question of want of jurisdiction of the High Court was not raised before that Court and cannot be allowed to be raised in this Court for the first\n\ntime. [87 5 F-GJ ·\n\n(b) The principles governing interference by the High Court under s. 115, C.P.C. have been laid clown by this Court in a catena of decisions, the last of which is The Municipal Corporation of Delhi v. S11resh Chandra Jaipuria & Anr. (A.LR. 1976 S.C. 2621). [875 H, 876 A-BJ\n\nBa/derdas Shiv/al & Anr. v. Fi/111ista11 Distributors (India) (P) Ltd. & Ors. [1970] 1 S.C.R. 435, M/s. D.L.F. Housing and Constmr:tion Co. (P) Ltd. v.\n\nSamp Singh and Ors. A.1.R. 1971 S.C. 2324, The Managing Director (MIG) Hi11dwtan Aeronautics Ltd. Balanagar, Hyderabad and Anr. v. Ajit Prasad\n\nTanvay, Manager (Purchase and Stores) Hindustan Aeronautib Ltd. Balanagar, Hyderqbad, A.LR. 1973 S.C. 76 and The M1111icipa/ Corporation of Delhi v.\n\nSuresh Chandra Jaip11ria and Anr. A.LR. 1976 S.C. 2621 referred to.\n\nCrv1L APPELLATE JURISDICTION : Civil Appeal No. 1888/68.\n\nAppeal by Special Leave from the Judgment and Order dated 10-1-1968 of the Madhya Pradesh High Court (Indore Bench) in Civil Revision No. 76/67.\n\nD. V. Patel and S. K. Gambhir for the Appellant.\n\nV. P. Raman, Addl. Sol. Genl., Y. S. Chitale and D. N. Mishra for the Respondent.\n\nThe Judgment of the Court was delivered by\n\n~JLASAM, J. This appeal i•s by special leave against the judgment and order of the High Court of Madhya Pradesh, Bench at Indore revising the order\\ of the Additional District Judge and holding that the appellant is liable to pay tax from April 1, 1954 and not from Aprl.l 1, 1965 only as held by the District Judge.\n\nThe appellant is the owner of a factory at No. 1, Shivaji Nagar, Indore.\n\nOn January 8, 1954 the rental of the factory was assessed at Rs. 564 per month and the house-tax payable at Rs. 475/14/- with effect from April 1, 19 51.\n\n.The dispute is whether tax is payable from April 1, 1954. By an order dated March 20, 1956 the house-tax was determined at Rs. 891/1/- per annum by the Municipal Corporation with effect from April 1, 1954.\n\nAgainst the said assessment the appellant preferred an appeal before the Municipal Appeal Committee, Indore.\n\nThe Appeal Committee allowed the appeal and remanded the case for deciding it on merits after giving a hearing to the appellant.\n\nAfter remand, the Municipal Corporation again inquired into the matter and. determined the rental value at Rs. 940/- per month and reduced the tax to Rs. 793 /21per. year by an order dated 11th February, 1957, as payable from April 1, 1954.\n\nThe appellant objectedto the assessment and gave notice of objecti'.:m under section 147(1) of the Madhya Pradesh Municipal Corporation Act, 1956, bnt the objection was summarily rejected by the Muni<cipal Commis- • sioner.\n\nThe appellant preferred an appeal being Miscellaneous Appeal No. 41 of 1957 to the 1st Additional District Judge, Indore.\n\nBy an order dated March 10, 1960, the Additional District Judge\n\nC}JHAGAN LAL v. MUNICIPAL CORP. (Kailasam, J.) 87 3\n\nallowed the appeal and remanded the case for decision afresh after proper inquiry.\n\nOn remand, a notice dated February 11, 1963, was i'ssued to the appellant under section 144(1) of the Madhya Pradesh Municipal Corporation Act, 1956, as amended by Act 13 of 1961 calling upon him to furnish the requirsd information.\n\nThe Corporation also issued another notice to the appellant on May 7, 1964, informing the appellant that the Junior Overseer had submitted a report that considerable changes have been effected in the factory a11d calling upon him to submit a detailed plan.\n\nThe appellant replied asking for details.\n\nSubsequently, the appellant received a notice dated October 12, 1965, under section 146 of the Madhya\n\nPradesh Municipal Corporation Act whereby he was informed that the annual valuation oLthe property was assessed at Rs. 10,870.:W and Rs. 764.18 was fixed as the annual property tax with effect from April l, 1954.\n\nHe was also informed that if he had a9y objection he could file his objections under sectl\\m 147 (1) within 30 days from the receipt of the said notice. The appellant filed his objections on November 11, l 965.\n\nThe Commissioner rejected fhe objections by his order dated May 26, 1966, and confirmed the valuation of the property and tax imposed by it on October 12, 1965.\n\nThe appellant was informed by the Corporation by its letter dated June l, 1966, that the amount of Rs. 764.18 as tax has been fi£ed with effect from April l, 1954, on the basis of the valuation of the annual income of Rs. 10,870.20.\n\nAggrieved by the. order of the Commissioner the appellant filed Civil Miscellaneous Appeal No. 70 of 1966 before the 2nd Additional District Judge, Indore.\n\nThe learned Judge by his order dated December 21, 1966, partly allowed the appeal and held that the appellant would be liable to pay the property tax of Rs. 764.18 with effect from April 1, 1965, only, and not from April 1, 1954.\n\nThe respondent Municipality then filed a Revision Petition before the High Court and the High Court by its order dated January 10, 1968, in Civil Revision No. 76 of 1967 allowed the Revision Petition and held that levy of the house-tax at Rs. 764.18 would be payable from April, 1, 1954 itself.\n\nAgainst the order of tJ1e High Court the appellant filed a petition under Article 136 of the Constitution and on the grant of a special leave by this Court on August 23, 1968, 'chis appealhas come up before us for final .hearing.\n\n' ' The learned counsel for the appellant raised two contentions. He submitted that as a fresh notice was issued under section 144 , of the amended Act on October 12, 1965 no tax could 'be imposed wjth •· • retrospective effect and the order of the High Court directing payment of tax from April 1, 1954, is against law.\n\nIt was next contended\n\ntliat the decision of the 2nd Additional District Judge is final and H tlie High Court had no jurisdiction to interfere with 'it.\n\nIn any event\n\n1 .- it had exceeded its powers under section 11_5 of the Civil Procedure Code.\n\nA From the facts set out it will be apparent that the order fixing the !<ix at Rs. 891/1/- per annum with effect from April 1, 1954 was made on March 20, 1956.\n\nThat order was challenged before yarious forums.\n\nThe Municipal Appeal Committee had first allowed an appeal preferred by the appellant and remanded . the case to the Municipal Corporation.\n\nAfter remand the Municipal Corporation reduced the tax to Rs. 793/2/- by its order dated February 11, 1957.\n\nB Bi.; t again the assessment was objected to under section I 4 7 ( l) of the Madhya Pradesh Municipal Corporation Act.\n\nThe Municipal Commissioner dismissed the objections and thereupon there was an appeal to the Additional District Judge who allowed the appeal and remanded the matter for fresh disposal on March 10, 1960.\n\nAfter remand the Corporation reduced the tax further and fixed it at Rs. 764.18 with effect from April 1, 1954 by its order dated October C 12, 1965.\n\nThe appellant filed objections and the objections were rejected by the Commissioner by its order dated May 26, 1966.\n\nAgainst the order fixing the tax at Rs. 764.18 the appellant filed an appeal to the 2nd Additional District Judge, Indore, who by his order dated December 21, 1966 held that the property tax has to be paid only from April l, 1965 and not from April 1; 1954.\n\nThat order was challenged by the Municipality before the High Court which D alJowed the Civil Revision and held that the house-tax at Rs. 764.18 is payable from April 1, 1954.\n\nIt will be thus seen that the proceeding related to the tax payable from April 1, '1954.\n\nThe point that is taken by the learned counsel is that after the remand by the learned District Judge by his order dated March 10, 1960, the proceedings started by the Municipality by its notice, dated October 12, 1965 were under section 146 of the Madhya Pradesh Municipal Corporation Act E and as the new Act was not retrospective in its effect the tax is payable only from April 1, 1965.\n\nThis plea cannot be accepted as from the narration of the facts it can be seen that it was a continuous proceeding relating to the tax payable from April 1, 1954, and there is no substance in the plea that the notice amounted to notice of fresh assessment or re-assessment.\n\nEqually untenable is his plea that the notice given by the Municipality on Ocfober 12, 1965 cannot have the F effect of levying tax for any period earlier than April, 1965. The notice issued by the Municipal Corporation bearing No. 18000 dated February 11, 1963, runs as follows:- -\n\n\"Under section 144(1) of the Madhya Pradesh Municipal Corporation Act, you are hereby informed the necessary particulars in the proforma given below, together with the detailed plan of the building of the abovementioned factory i:nay please be furnished within 7 days from the receipt of this letter; for the puqrose of assessment.\n\nAs the case has been remanded by the court, it is necessary to make assessment again.\"\n\nThe notice itself specifically states that the assessment was to be made again in pursuance of the order of remand. The notice No. 10195 dated October 12, 1965 is under section 146 of the Municipal Act and it stated that on remand of the matter from the District Court\n\n......\n\n...\n\nCHHAGAN LAL v. MUNICIPAL CORP. (Kailasam, !.) 8 7 5\n\nregarding the assessment of the property No. 1, Shivaji Nagar, the annual tax has been assessed at Rs. 764.18 and called upon the appellant to file any objections if he has within 30 days from th~ r.eceipt of the notice under section 147(1) of the Act.\n\nThe notice itself makes it clear that the Commissioner was proceeding to fix the value in pursuance of the remand and called upon him to. file his objections under section 147.\n\nThe plea: of the learned counsel for the appellant is that the Commissioner is not authorised to determine the value and impose a tax for any period befo1'e the date of issue of the notice.\n\nThis contention ignores the fact that the V1Jcluation and determination of the tax from the yellr 1954 was pending and the proceedings related to that period.\n\nSeetion 3 of the M. P. Munic.ipal Corporation Act, 1956, Act 23 of 1956, amongst other things provides under sub-section (3) that \"All rates, taxes and sums of money due to the Municipalities of such city when this Act is made applicable shall be deemed to be due to the Corporation,\" and under subsection ( 4) of section 3 \"All suits or other Legal proceedings, civil or criminal, instituted by or against the Municipality of such city may be continued by or against the Corporation.\" The proceedings were originally taken under the Madhya Bharat Municipalities Act, 1954and the proceedings regarding the levy of the house-tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings.\n\nWe do not see any basis for the contention that under the new Act the Municipality had no power to pursue the proceedings regarding the levy of the tax for an earlier period.\n\nWe therefore reject the first contention as being without any substance.\n\nThe secopd contention is based on section 149 tlf the Madhya.., Pradesh Municipal Corporation Act, 1956.\n\nIt provides that any E appeal shall lie from the decision of the Municipal Commissicmer to the Di~):rict Court, when any dispute arises as to the liability of any land or building to assessment.\n\nSub-section ( 1) of section 149 provides that the decision of the District Court shall be final.\n\nIt was submitted that the decision of the District Court was therefore final and that the High Court was in error in entertaining a Revision Petition.\n\nThis plea cannot be accepted for, under section 1I5 of the Civil Procedure Code the High Court has got a power to revise the order passed by courts subordinate tu.t.\n\nIt 'cannot be disputed that the District Coutt is a subordinate court and is liable to the revisional jurisdiction of the, High Court.\n\nThat leaves us with the last contention of the appellant that the High Court acted beyond its power as a court of revision.\n\nThis point will have to be summarily dismissed as the question of want of jurisdiction of the High Court was not raised before the High Court and therefore cannot be allowed to be raised in this Court for the first time.\n\nThe learned> counsel for the appellant pleaded that the question involves total lack of powers of the High Court and this Court should hold that the order of the High Court is without jurisdiction.\n\nThis Court has laid down the principles governing interference under section 115 of the Civil Procedure Code is Baldevda:I Shiv/al & Anr. v. Filmistan Distributors (India) (P) Ltd. & Ors., (') M/s. D.L.F. Housing and Construction Co. (P) Ltd. v.\n\n(1) [1970J l S.C.R. 435.\n\n8-206SCI/77\n\nSUPREME COT:/RT REPORTS [1977] 2 s.c.R.\n\nSarup singh and Ors., (1) and The ManagJng Director (MIG) Hi.ndustan Aeronautics Ltd. Balanagar Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd.\n\nBalangar Hyderabad.(') These cases have been referred to in the recent decision of this Court in The Municipal Corporation of Delhi v.\n\nSuresh Chandra JO!ipuria and Anr .. () 9) and the attention of the learned Judges of the High Court was drawn to the law declared by this Court.\n\nWe consider it unnecessary to discuss the law on the subject over again as this appeal is liable to be dismissed on the ground that the point was not taken before the High Court and the discretion of this Court to interfere or not is beyond question.\n\nIn the, result we find that there is no substance in this appeal and dismiss the same with costs.\n\nP.B.R.\n\n(!) A.LR. 1971 S.C. 2324.\n\n(2} A.I.R. 1973 S.C. 76, .(3) A.I.R. t9V6 S.C. 262l.\n\nAppeal tNimissed.\n\n...\n\n. ..\n\n. • ' ....", "total_entities": 75, "entities": [{"text": "CHHAGAN LAL", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "CHHAGAN LAL", "offset_not_found": false}}, {"text": "MUNICIPAL CORPORATION, INDORE", "label": "RESPONDENT", "start_char": 16, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION, INDORE", "offset_not_found": false}}, {"text": "January 28, 1977", "label": "DATE", "start_char": 47, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "CHHAGAN LAL v.\n\nMUNICIPAL CORPORATION, INDORE\n\nJanuary 28, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM: JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 66, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. s. KAILASAM", "label": "JUDGE", "start_char": 97, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Municipal Corporation Act, 1956", "label": "STATUTE", "start_char": 124, "end_char": 155, "source": "regex", "metadata": {}}, {"text": "Madhya Bliarat Municipalities Act, 1954", "label": "STATUTE", "start_char": 184, "end_char": 223, "source": "regex", "metadata": {}}, {"text": "Madhya Bharat Municipalities Act, 1954", "label": "STATUTE", "start_char": 379, "end_char": 417, "source": "regex", "metadata": {}}, {"text": "October 12, 1965", "label": "DATE", "start_char": 744, "end_char": 760, "source": "ner", "metadata": {"in_sentence": "Ultimately, by a notice dated October 12, 1965 issued under s. 146 of the Madhya Pradesh Municipal Corporation Act, 1956 (as amended in 1961) the Corporation revised the amount of (ax payable but maintained the date of liability for payment of tax as April 1, 1954."}}, {"text": "s. 146", "label": "PROVISION", "start_char": 774, "end_char": 780, "source": "regex", "metadata": {"linked_statute_text": "Under the Madhya Bharat Municipalities Act, 1954", "statute": "Under the Madhya Bharat Municipalities Act, 1954"}}, {"text": "Madhya Pradesh Municipal Corporation Act, 1956", "label": "STATUTE", "start_char": 788, "end_char": 834, "source": "regex", "metadata": {}}, {"text": "s. 146", "label": "PROVISION", "start_char": 1504, "end_char": 1510, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Municipal Corporation Act, 1956", "statute": "the Madhya Pradesh Municipal Corporation Act, 1956"}}, {"text": "s. 149(1)", "label": "PROVISION", "start_char": 1740, "end_char": 1749, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Municipal Corporation Act, 1956", "statute": "the Madhya Pradesh Municipal Corporation Act, 1956"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 1891, "end_char": 1897, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1899, "end_char": 1904, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3(3)", "label": "PROVISION", "start_char": 2815, "end_char": 2827, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "Madhya Bharat Municipalities Act, 1954", "label": "STATUTE", "start_char": 3220, "end_char": 3258, "source": "regex", "metadata": {}}, {"text": "s. 115", "label": "PROVISION", "start_char": 3451, "end_char": 3457, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Bharat Municipalities Act, 1954", "statute": "the Madhya Bharat Municipalities Act, 1954"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3459, "end_char": 3464, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 115", "label": "PROVISION", "start_char": 3915, "end_char": 3921, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 3923, "end_char": 3928, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S11", "label": "PROVISION", "start_char": 4050, "end_char": 4053, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "[1970] 1 S.C.R. 435", "label": "CASE_CITATION", "start_char": 4202, "end_char": 4221, "source": "regex", "metadata": {}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 4844, "end_char": 4855, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and S. K. Gambhir for the Appellant."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 4860, "end_char": 4873, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and S. K. Gambhir for the Appellant."}}, {"text": "V. P. Raman", "label": "LAWYER", "start_char": 4894, "end_char": 4905, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, Addl."}}, {"text": "Y. S. Chitale", "label": "LAWYER", "start_char": 4925, "end_char": 4938, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale and D. N. Mishra for the Respondent."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 4943, "end_char": 4955, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale and D. N. Mishra for the Respondent."}}, {"text": "~JLASAM", "label": "JUDGE", "start_char": 5021, "end_char": 5028, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\n~JLASAM, J. This appeal i•s by special leave against the judgment and order of the High Court of Madhya Pradesh, Bench at Indore revising the order\\ of the Additional District Judge and holding that the appellant is liable to pay tax from April 1, 1954 and not from Aprl.l 1, 1965 only as held by the District Judge."}}, {"text": "Indore", "label": "GPE", "start_char": 5404, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "1, Shivaji Nagar, Indore."}}, {"text": "January 8, 1954", "label": "DATE", "start_char": 5416, "end_char": 5431, "source": "ner", "metadata": {"in_sentence": "On January 8, 1954 the rental of the factory was assessed at Rs."}}, {"text": "1, 19 51", "label": "DATE", "start_char": 5557, "end_char": 5565, "source": "ner", "metadata": {"in_sentence": "475/14/- with effect from April 1, 19 51."}}, {"text": "March 20, 1956", "label": "DATE", "start_char": 5645, "end_char": 5659, "source": "ner", "metadata": {"in_sentence": "By an order dated March 20, 1956 the house-tax was determined at Rs."}}, {"text": "Municipal Appeal Committee, Indore", "label": "COURT", "start_char": 5849, "end_char": 5883, "source": "ner", "metadata": {"in_sentence": "Against the said assessment the appellant preferred an appeal before the Municipal Appeal Committee, Indore."}}, {"text": "11th February, 1957", "label": "DATE", "start_char": 6205, "end_char": 6224, "source": "ner", "metadata": {"in_sentence": "year by an order dated 11th February, 1957, as payable from April 1, 1954."}}, {"text": "section 147(1)", "label": "PROVISION", "start_char": 6335, "end_char": 6349, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Municipal Corporation Act, 1956", "label": "STATUTE", "start_char": 6357, "end_char": 6403, "source": "regex", "metadata": {}}, {"text": "1st Additional District Judge, Indore", "label": "COURT", "start_char": 6566, "end_char": 6603, "source": "ner", "metadata": {"in_sentence": "41 of 1957 to the 1st Additional District Judge, Indore."}}, {"text": "March 10, 1960", "label": "DATE", "start_char": 6624, "end_char": 6638, "source": "ner", "metadata": {"in_sentence": "By an order dated March 10, 1960, the Additional District Judge\n\nC}JHAGAN LAL v. MUNICIPAL CORP. ("}}, {"text": "Additional District Judge\n\nC}JHAGAN LAL v. MUNICIPAL CORP. (Kailasam, J.) 87 3", "label": "COURT", "start_char": 6644, "end_char": 6722, "source": "ner", "metadata": {"in_sentence": "By an order dated March 10, 1960, the Additional District Judge\n\nC}JHAGAN LAL v. MUNICIPAL CORP. ("}}, {"text": "section 144(1)", "label": "PROVISION", "start_char": 6888, "end_char": 6902, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Municipal Corporation Act, 1956", "statute": "the Madhya Pradesh Municipal Corporation Act, 1956"}}, {"text": "Madhya Pradesh Municipal Corporation Act, 1956", "label": "STATUTE", "start_char": 6910, "end_char": 6956, "source": "regex", "metadata": {}}, {"text": "May 7, 1964", "label": "DATE", "start_char": 7105, "end_char": 7116, "source": "ner", "metadata": {"in_sentence": "The Corporation also issued another notice to the appellant on May 7, 1964, informing the appellant that the Junior Overseer had submitted a report that considerable changes have been effected in the factory a11d calling upon him to submit a detailed plan."}}, {"text": "section 146", "label": "PROVISION", "start_char": 7419, "end_char": 7430, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Municipal Corporation Act, 1956", "statute": "the Madhya Pradesh Municipal Corporation Act, 1956"}}, {"text": "November 11, l 965", "label": "DATE", "start_char": 7851, "end_char": 7869, "source": "ner", "metadata": {"in_sentence": "The appellant filed his objections on November 11, l 965."}}, {"text": "May 26, 1966", "label": "DATE", "start_char": 7932, "end_char": 7944, "source": "ner", "metadata": {"in_sentence": "The Commissioner rejected fhe objections by his order dated May 26, 1966, and confirmed the valuation of the property and tax imposed by it on October 12, 1965."}}, {"text": "June l, 1966", "label": "DATE", "start_char": 8100, "end_char": 8112, "source": "ner", "metadata": {"in_sentence": "The appellant was informed by the Corporation by its letter dated June l, 1966, that the amount of Rs."}}, {"text": "2nd Additional District Judge, Indore", "label": "COURT", "start_char": 8385, "end_char": 8422, "source": "ner", "metadata": {"in_sentence": "70 of 1966 before the 2nd Additional District Judge, Indore."}}, {"text": "December 21, 1966", "label": "DATE", "start_char": 8462, "end_char": 8479, "source": "ner", "metadata": {"in_sentence": "The learned Judge by his order dated December 21, 1966, partly allowed the appeal and held that the appellant would be liable to pay the property tax of Rs."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 9026, "end_char": 9037, "source": "regex", "metadata": {"statute": null}}, {"text": "August 23, 1968", "label": "DATE", "start_char": 9111, "end_char": 9126, "source": "ner", "metadata": {"in_sentence": "Against the order of tJ1e High Court the appellant filed a petition under Article 136 of the Constitution and on the grant of a special leave by this Court on August 23, 1968, 'chis appealhas come up before us for final .hearing."}}, {"text": "section 144", "label": "PROVISION", "start_char": 9302, "end_char": 9313, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1954", "label": "DATE", "start_char": 9473, "end_char": 9486, "source": "ner", "metadata": {"in_sentence": "He submitted that as a fresh notice was issued under section 144 , of the amended Act on October 12, 1965 no tax could 'be imposed wjth •· • retrospective effect and the order of the High Court directing payment of tax from April 1, 1954, is against law."}}, {"text": "section 11", "label": "PROVISION", "start_char": 9711, "end_char": 9721, "source": "regex", "metadata": {"statute": null}}, {"text": "February 11, 1957", "label": "DATE", "start_char": 10195, "end_char": 10212, "source": "ner", "metadata": {"in_sentence": "793/2/- by its order dated February 11, 1957."}}, {"text": "October C 12, 1965", "label": "DATE", "start_char": 10671, "end_char": 10689, "source": "ner", "metadata": {"in_sentence": "764.18 with effect from April 1, 1954 by its order dated October C 12, 1965."}}, {"text": "April 1, '1954", "label": "DATE", "start_char": 11319, "end_char": 11333, "source": "ner", "metadata": {"in_sentence": "It will be thus seen that the proceeding related to the tax payable from April 1, '1954."}}, {"text": "section 146", "label": "PROVISION", "start_char": 11566, "end_char": 11577, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1965", "label": "DATE", "start_char": 11712, "end_char": 11725, "source": "ner", "metadata": {"in_sentence": "The point that is taken by the learned counsel is that after the remand by the learned District Judge by his order dated March 10, 1960, the proceedings started by the Municipality by its notice, dated October 12, 1965 were under section 146 of the Madhya Pradesh Municipal Corporation Act E and as the new Act was not retrospective in its effect the tax is payable only from April 1, 1965."}}, {"text": "Ocfober 12, 1965", "label": "DATE", "start_char": 12078, "end_char": 12094, "source": "ner", "metadata": {"in_sentence": "Equally untenable is his plea that the notice given by the Municipality on Ocfober 12, 1965 cannot have the F effect of levying tax for any period earlier than April, 1965."}}, {"text": "February 11, 1963", "label": "DATE", "start_char": 12247, "end_char": 12264, "source": "ner", "metadata": {"in_sentence": "18000 dated February 11, 1963, runs as follows:- -\n\n\"Under section 144(1) of the Madhya Pradesh Municipal Corporation Act, you are hereby informed the necessary particulars in the proforma given below, together with the detailed plan of the building of the abovementioned factory i:nay please be furnished within 7 days from the receipt of this letter; for the puqrose of assessment."}}, {"text": "section 144(1)", "label": "PROVISION", "start_char": 12294, "end_char": 12308, "source": "regex", "metadata": {"statute": null}}, {"text": "section 146", "label": "PROVISION", "start_char": 12877, "end_char": 12888, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147(1)", "label": "PROVISION", "start_char": 13270, "end_char": 13284, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 13462, "end_char": 13473, "source": "regex", "metadata": {"statute": null}}, {"text": "Corporation Act, 1956", "label": "STATUTE", "start_char": 13861, "end_char": 13882, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 14141, "end_char": 14150, "source": "regex", "metadata": {"linked_statute_text": "Corporation Act, 1956", "statute": "Corporation Act, 1956"}}, {"text": "proceedings were originally taken under the Madhya Bharat Municipalities Act, 1954", "label": "STATUTE", "start_char": 14317, "end_char": 14399, "source": "regex", "metadata": {}}, {"text": "section 149", "label": "PROVISION", "start_char": 14841, "end_char": 14852, "source": "regex", "metadata": {"linked_statute_text": "The proceedings were originally taken under the Madhya Bharat Municipalities Act, 1954", "statute": "The proceedings were originally taken under the Madhya Bharat Municipalities Act, 1954"}}, {"text": "Pradesh Municipal Corporation Act, 1956", "label": "STATUTE", "start_char": 14871, "end_char": 14910, "source": "regex", "metadata": {}}, {"text": "section 149", "label": "PROVISION", "start_char": 15129, "end_char": 15140, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Municipal Corporation Act, 1956", "statute": "Pradesh Municipal Corporation Act, 1956"}}, {"text": "section 1I", "label": "PROVISION", "start_char": 15399, "end_char": 15409, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Municipal Corporation Act, 1956", "statute": "Pradesh Municipal Corporation Act, 1956"}}, {"text": "section 115", "label": "PROVISION", "start_char": 16277, "end_char": 16288, "source": "regex", "metadata": {"statute": null}}, {"text": "Sarup singh", "label": "RESPONDENT", "start_char": 16535, "end_char": 16546, "source": "ner", "metadata": {"in_sentence": "R.\n\nSarup singh and Ors., ("}}]}
{"document_id": "1977_2_877_885_EN", "year": 1977, "text": "GOVIND PRASAD CHATURVEDI A\n\n\\'.\n\nBARI DUTT SHASTRI AND ANOTHER\n\nJanuary 28, 1977\n\n[A. N. RAY, c. J., M. H. BEG AND P. s. KAILASAM, JJ.] B\n\n. Contract Act-contract relating to sale of immovable property -What is the normal presumption regarding stipulation of time-Whether presumption is displacable-Whether the question of time being the essence ef a contract can be raised befor,, the HiJ?h Court for the first time in appeal.\n\nThe appellants entered into an agreement with the respondents on March 24, 1964, for purchasing the suit property belonging to the latter. 'The terms C of the agreement provided that the appellant would get the sale deed executed upto May 24, 1964, and in case of his failure to do so, the earnest money paid by him to the respondent would stand forfeited. The sale deed was not executed within the prescribed time, and the appellant filed a suit against the respondents for breach of contract. The trial court granted him the relief of specific performance of the contract. The respondents succeeded in an appeal before the High Court on the ground that time was of the essence of the contract and therefore the relief of specific performance could not be granted, and also that the appellant had not been ready to perform his part of the contract: D\n\nAllowing the appeal by certificate, the Court,\n\nHELD : (1) Fixation of the period within which the contraict has lo be performed does not make the stipulation as to time, the essence of the contract.\n\nWhen a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence may be evidenced by circumstances which are suffi- E ciently strong to displace the normal presumption. [881 A-CJ\n\nGomathinarayana Pillai & Ors. v. Pa/aniswamy Nadar [1967] 1 SCR 227, 23\\ applied.\n\n( 2) In the absence of specific pleadings or issues raised before the trial court, the question whether the time is of the essence of the contract or not, cannot be raised before the High Court in al?peal. [882 B-C]\n\n( 3) A careful consideration of the evidence and the correspondence between the parties shows that the appellant was always ready to perform his part of the contract and that the respondents were evading their responsibilities. .\n\n[885 F-G]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 696 of 1971.\n\nAppeal from the Judgment and Decree dated the 20-4-1970 of the Allahabad High Court in First Appeal No. 15 of 1966.\n\nA. K. Sen, S. T. Desai and P. P. Juneja for the AppellaJJ.t.\n\nS. V. Gupte and M. V. Goswami for Respondents.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J. This appeal is filed by the plainti.ff against the judiment1 of. the Allahabad High Court on a certificate dismissing the sillt for specific performance of a contract of sale elated 24th March, 1964.\n\nThe facts of the case are briefly as follows : -\n\nThe suit property was owned by one Shri Aditya Narain and the plaintiff/appellant became a tenant of the suit property ullder Aditya Narain in the year 1942. On 2nd January, 1961 the respQtldents, the two defendants in the suit purchased the suit property for Rs. 19,000 from Aditya Narain and the appellant became tenant of the respondents.\n\nSoon after the, purchase of the property by the respondents they sought to evict the appellant by filing a petition under section 3 of the U.P. Rent and Evic_tion Act. The appellant resisted and the Rent Control and Eviction Officer rejected the petition holding that the respondents' requirement of the premises was not genuine.\n\nOn the mediation of Sri Chand Doneria the parties entered into the suit agreement on 24th March, 1964. In pursuance of the agreement the appellant handed over Rs. 4,000 as earnest money to the respondents. The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed executed within two months i.e. upto 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of Rs. 4,000 shall stand forfeited. From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed. The appellant filed a suit, Civil Suit No. 122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respondents failed to execute the sale, deed as agreed and therefore committed breach of the contract. The plaintiff prayed for a decree of specific performance of the contract of sale <lated 24th March, 1964 against the respondents and for direction to the respondents to execute the sale deed of the property and get it registered and in default the sale deed may be executed by the court according to law. The respondents filed written statement denying the various allegations made in the plaint and pleaded that the appellant did not perform his part of the contract within the stipulated time and the contract thereafter did not subsist and therefore the suit was misconceived.\n\nOn these pleadings the trial court framed five issues of which it is relevant to note only two which are issues 1 and 3. They are as under : -\n\nIssue No. 3. \"Whether the contract did not subsist on the date the to perform his part of the contract as alleged in the plaint?\"\n\nIssue No. 3. \"Whether the contract did not subsist on the date the suit was field ?\n\nfhe trial court found that it was proved beyond a shadow of any doubt that the appellant was always ready and willing to perform his part of the contract and the respondents were not at all anxious o execute the sale deed in his favour and that the respondents were guilty f breach of contract. On issue No. 3 it found that even though the time for g<1tting the :;; ale deed executed expired after the 24th May, 1964 the\n\n~· .\n\nc • •\n\nappellant would not be disentitled to the relief of specific performance A of the contract for sale on the ground of delay as the respondents themselves were respnsible for it. The respondents preferred an appeal to the Allahabad High Court and a Bench of the Court on the arguments set out two points for determination in the appeal.\n\nThey are : ( 1) whether the appellant or the respondents committed the breach of contract entered i1:1to between the parties on 24th March, 1964; and\n\n(2) whether the time was of the essence of the contract. If not, its B effect .. 'J!1e High Court fond that the respondents were always ready and .willmg to perform their part of the contract in terms of the agreement dated 24th March, 1964 and it was the appellant who committed the breach of the contract by not getting the sale deed executed by 25th May, 1964 in terms of the agreement dated 24th March, 1964. The High Court on the issue as to whether time was of the essence of the contract held that in the circumstances of the case and in view of the c conduct of the parties of serving on each other notices, counter notices and telegrams they expressed their intention to treat time as of the essence of the contract and that once the time is held to be the essence of the contract the appellant's suit for specific performance must fail.\n\nThe High Court also held that even if time is not held .to be of the essence of the contract it was of the opinion that the appellant is not entitled to a decree for specific performance as he had failed to prove D that he was ready to perform his part of the contract.\n\nThe appellant applied for a certificate and the High Court by its order dated 22nd February, 1971 granted the certificate under clause\n\n(a) of Article 133 (1) of the Constitution.\n\nIn this appeal before us the learned counsel for the appellant sub- E mitted that the High Court was in error in holding that the time was of the essence of the contract and that the High Court's finding that the appellant was not ready and willing to perform his part of the contract while the respondents were. always ready to, perform their part of the contract is opposed to oral and documentary evidence and the probabilities of the case.\n\nThe first question that arises for consideration is whether time is of tl1e essence of the contract. In order to determine this question it is necessary to set out the .suit agreement which is marked as Ex. 23 at page 137 of the papers. lt runs as follows :-\n\n\"Dear Pandit Govind Prasad Ji Chaturvedi,\n\nSir, G\n\nA litigation has been going on between y~:m and us with respect to the Kothi of Bima Nagar, of which you ar~ a t€nant on behalf of us.\n\nThe said dispute has been decided today through the mediation of Sri Shri <\"; hand Doneriya, on the terms and conditions given below which shall be fully binding on you as well as us.\n\n1. That you are agreeable to purhase our Kothi of which you are a tenant and a transact10n between you and\n\nF .\n\n880 SUPREME t:OURT RCPORTS\n\n(1977] 2 S.C.R.\n\nus has been finally settled today; at Rs. 24,000 (rupees twenty-four thousand), with respect to the said Kathi.\n\n2. That you are paying us, at present, a sum of Rs. 4000 in cash, as earnest money, the receipt wher()of has been acknowledged by us by affixing a revenue stamp at the foot of this letter, and that the remaining sum of R~. 20,000 shall be paid by you to us at the time of registration.\n\n3. That the expenses relating registration and cost of stamps etc. shall be borne by you and. we shall be entitled to get a sum of Rs. 24,000 (rupees twenty-four thousand) net.\n\n4. That you must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case you do not get the sale-deed registered within two months then the earnest money amounting to rupees four thousand, paid by you shall stand forfeited without serving any notice; But in case we in some way evade the execution of (he saledee<l, then you will be entitled to compel us to execute the sale deed \"legally and W!' shall be liable to pay the costs and damages incurred by . you. . 5. That we shall furnish you a guarariteeof good ti!le in respect of the property which is free and immune from all 'or(~ of disputes ..\n\n6. That you shall be liable to pay the rent till the date you get the sale-deed registered and you shall clear off all amount due to us before registration.\n\n7. That both the parties shall withdraw their respective cases or get the same dismissed and shall bear their own costs.\n\n8. That neither party shall take any fresh legal steps during this period of two months by which any hindrance may be caused in execution. of our sale deed.\n\nIn confirmation of the agreement which has been made between you and me through this letter, you too have affixed your signature on this Jetter.\n\nYours,\n\nSignature of Hari Dutt Shastri .24-3-1964 Signatuce of Bhavbhooti Sharm2\n\n24-3-1964 x:_ x .. x \" x x\n\nThe relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did n_ot get the sale deed registered within\n\nG. P. CHATURVEDI v. H. D. SHASTRI (Kaila.Yam,!.) 881\n\ntwo months then the earnest money amounting to Rs. 4000 paid by A the appellant shall stand forfeited without serving any notice.\n\nThe clause further provides that in case the respondents in some way evade the execution of the sale. deed then the appellant will be entitled to compel them to execute t.pe ale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appellant.\n\nIt is settled law that the fixation of the period ·.vithin which the contract has be peJformed does not make the stipulation as to time B the essence of the contract.\n\nWhen a contract relates to sale of immovealle property it will normally be presumed that the time is not the e<isence of tho contract. (vide Gomathinayagam, Pillai & Ors. v.\n\nPalaniswami Nadar) ('). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract.\n\nThe i•ntention to treat time as the essence of the contract may be evidenced by circum- C stances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. ., .,.,.,,_\n\nApart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract and the fact that the terms of the agreement do not unmistakably state that the time was understood to be the essence of the contract neither in the pleadi•ngs nor during the trial the respondents contended that time was of the essence of the contract.\n\nIn the plaint the allegation was that the appellant has always been ready and willing to perfOflll his part of the: contract and he did all that he was bound to do under the agreement while the respondents committed breach of the contract.\n\nThe respondents did not set up the plea that the time was oil the essence of the contract.\n\nIn paragraph 32 of the Written Statement all that was stated v.as that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not subsist and the suit is consequently misconceived.\n\nThe parties did not go to trial on the basis tht time was of the essence of the eontract for .no issue was frll:_med regarding tin.e being the essence of the contract.\n\nNeither is there any discussion in the judgment of the trial court regarding this point.\n\nThe trial court after considering the evidence came to the conclusion that appellant was always ready and willing to perform his part of the contract while the respondents were not in the circums!n~ therefore th!? gh Court was in error setting as one of the pomts for determma t10n whether time was of the essence of the contract.\n\nThe High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the cmrse of a litigation between the appellanJ and the respondents and Ill pursuance of the agreement the parties were directed. to withdraw their cases and were directed further not to take fresh legal steps during the period of two .months within which the sale deed was to be executed.\n\nOn taking\n\n(1) (1967] l S.C. R. 227, 233. .,\n\ninto account the .circumstances of the case and the conduct of the parties of serving on each other notices, counter notices and telegrams the High Court inferred an intention on the part of the parties to treat the time as of essence of the contract.\n\nWe will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract.\n\nIn fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25th May.\n\nOn the question whether the time is of the essence of the contract or not we are satisfied that the High' Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court.\n\nApart from the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.\n\nThe decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for specific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part of the contract the courts below have given contrary finding and the High Court has recorded a finding that the appellant was not ready and willing to perform his part of the contract while the respondents were always ready and willing with which finding we are unable to ; agree we will discuss the evidence at some length.\n\nThe background to the suit agreement dated 24th March, 1964 is that there was litigation between the parties.\n\nThe appellant was a tenant under the previous owner, Aditya Narain, from i 942.\n\nThe respondents purchased the property in 1961 and in 1963 filed a petition to evict the appell; lnt.\n\nThat petition was resisted and the Rent Control and Eviction Officer dismissed the petition of the respondents.\n\nWhile the matters stood thus the compromise was entered into.\n\nThe appellant having been a tenant of the premises from 1942 would have J?een naturally anxious to contipue in possession while the respondents who had purchased the property in 1961 were anxious to get into possession.\n\nAs they wanted to settle their dispute the respondents agreed to s~ the property for which the appellant was willing and which they had purchased oil 2-1-1961 for Rs. 19,000 to the appellant for Rs. 24,000.\n\nOf this Rs. 24,000 the tenant paid Rs: 4000 ini cash as earnest money.\n\nThis would indicate that the tenant was keen on purchasing the property in which he was living since 1942.\n\nThe agreement provided that the appell:l!lt must get the sale deed executed within two months after 24th March, 1964 and if the appellant failed to get the sale deed registered within two months the earnest money of Rs. 4000 shall stand forfeited.\n\nNormally one would not expect the appellant to forfeit his earnest money.\n\nAs the peri<od stipulated was 24th May, 1964 the appellant started prepara-\n\n._, ----~\\\n\ntions for getting the sale deed executed.\n\nAccording to the appellant he wrote Ex. 24 on 5th, May, 1964 calling upon the respondents to come to Agra on the 18th May, 1964 for executing and making registration in pursuance of the contract and to complete the sale deed.\n\nAccording to the appellant no reply was received to this letter and he sent a notice through his advocate, Ex. 35, on 13th May, 1964 in which he stated that he was ready to pay the balance of the consideration of Rs. 24,000 along with the entire arrears of rent and requested the respondents to execute the sale deed by 18th May and latest by 24th May, 1964.\n\nThe lawyer's notice also referred to the letter of the Silii May.\n\nAnother lawyer's notice was sent, Ex. 36, on 20th May, 1964 by registered post complainlng that the respondents had not replied to his letter dated 5th May, 1964 and to his lawyer's notice dated 13th May, 1964 and called upon them to get the\n\nsale deed registered by 25th May, 1964 as 24th May is Sunday. Along with the lawyer's notice a draft sale deed was endorsed.\n\nThese three letters were followed by telegrams which were sent by the appellant to both the respondents on 20th May, 1964, Ex. 30.\n\nOn the 22nd May the appellant attended the office of the Sub-Registrar, Agra and presented an application to the Registrar to the effect that he was at the Registrar's office between the hours 3 and 4 p.m. on that day.\n\nOn 22nd May, 1964 the appellant received a reply from the respondents acknowledging the registered notices given on 13th and 20th May by the appellant's counsel.\n\nAccording to tl1e reply by the advocate on behalf of the respondents the two letters of the 13th and 20th May were received by the respondents only on the 22nd May, 1964.\n\nIn this reply of 22nd May, 1 964 the advocate of the respondents denied the allegation in1 the notice dated 20th May, 1964 of the appellant that the draft sale deed has been put in the cover.\n\nIt also complained that the draft sale deed has not been sent.\n\nThe respondents stated that they were ready to execute the sale deed but the appellant was wanting postponment for reasons best known to him.\n\nIt may be noted that the two complaints that are made in the advocate's notice on behalf of the respondents do not bear scrutiny.\n\nThe notice complains that the 9raft sale deed has not been enclosed.\n\nIt l1as been prove<:f that in one of the hotices sent to the son and which was opened in the court the draft sale deed was found enclosed.\n\nFurther without the cooperation of the respondents iti is difficult to prepare a draft sale deed as the date of sale by Aditya Narain in favour of the respondents would not have been available to the appellant.\n\nJn fact Mr. Gupte the learned counsel for the respondents submitted that the letter stating that a copy of the draft sale deed v.:as enclosed cannot be true as the appellant could not have got particulars about the earlier document of title of the respondents.\n\nThe respondents' plea that the draft sale deed was not received, doe5 not show that they were willing or cooperating in the execution of the sale deed.\n\nWei are unable to give any weight to the contention of the learned counsel that their plea that they sept a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents.\n\nIn fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed by Aditya Narain in favour of the respondents.\n\nThe letter of the\n\n.A 5th May the receipt of which was not denied by the reply of the ad'.'Oeate for the respondents and the lawyer's notices on behalf of the appellant, Ex. P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale deed.\n\nThere can be no doubt that they had basis for suspecting that the respondents were not willing to perform their part of the contract.\n\nA considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub-Registrar's office on 25th May, 1964.\n\nIt is sufficient to state that both the parties let in oral evidence :i.s well as acknmvledgment by the Sub-Registrar to prove their presence. Though both the rties would aS5ert their presence it is common ground that they did not meet each other. It is difficult for us to comprehend as to how if both the parties were present at the Sub-Registrar's office they did not meet each other. It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation.\n\nBut on the facts the conclusion is irresistible that it was the appellant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the premises' for over 25 years.\n\nIt is, not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.\n\nOn a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perfrom his part of the contract and that the respondents were not anxious to execute the sale deed.\n\nThe trial court accepted the evidence on behalf of the appellant that the appellant was possessed of sufficient funds and in fact he withdrew a sum of Rs. 20,500 from the Central Bank of India Ltd.\n\nAs the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20,000 towards the balance of sale consideration. The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed.\n\nJn all a sum of Rs. 22,956 was required. He had withdrawn Rs. 20,500 from the Central Bank of India Ltd.\n\nThe trial court accepted the evidence adduced by the appellant.\n\nThe trial court also accepted the evidence that the appellant had Rs. 5,000 with him at home and about Rs. 30,000 in deposit with a firm.\n\nThis part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath, P.W.2, Munim of M/s. Chhitar Mal Ram Dayal and the trial court acceptedi the evidence and found that the appellant had suffi- . cient funds for getting the sale deed executed.\n\nThis conclusion which we consider is irresistible was not accepted H by the High Court.\n\nThe High Court while accepting the evidence that the appellant had a sum of Rs. 4,500 in deposit in tho bank upto 20th May, 1964 and subsequently on 21st May, 1964 he c!eposited a sum of Rs. 14,000 and again a sum of Rs. 2,500 on 22nd May,\n\n• •\n\n1964 and that thus the appellant had Rs 21,000 in bank on 22nd . A May, 1964 found the case of the appellant unworthy of credit.\n\nThe High Court further observed that after the appellant had raised his deposit in the bank to Rs. 21,000 hei did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2,000.\n\nConscious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7,000 or 8,000 with him at his house.\n\nWe are at a loss to follow the reasoning of the High B Court.\n\nThe appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him.\n\nThe Court does not suspect that he did not have Rs. 20,500. The shortage at the most is of Rs 2,000' and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable.\n\nFur- C ther the appellan~. examined Kailash Nath, P.W.2,. of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs. 30,000 belonging to the appellant was lying in deposit with them.\n\nWe are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant ha~ remarked that the appellant did not take the [) course of personally going to the resp_ondents and asking for the sale deed.\n\nIn our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed.\n\nIn fact the respondents set up a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the stipulated time.\n\nThis evidence cannot be accepted taking E into account the relationship between the parties.\n\nWe have carefully considered the evidence and th~ correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that; the appellant was always ready and willing to perfrom. his part of the contract and that the respondents were evading their responsibility.\n\nThe finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.\n\nF \" In .the result we allow the appeal on the ground that the respondents have failed to establish that the time is of the essence of the contract and that the appellant has succeeded in establishing that he was always ready and willing to perform his part of the contract and\n\nthe respondents evaded their responsibility.\n\nThe judgment of the High Court is set aside and that of the trial court is restored.\n\nThe G appeal is allowed with costs.\n\nThe appellant will deposit Rs. 20,000/- and the sale documents in the court of the Civil Judge, Agra within six weeks from today and the parties will take further direction in the matter from the Civil Judge, Agra.\n\nM.R.\n\nAppt'al allowed.", "total_entities": 39, "entities": [{"text": "GOVIND PRASAD CHATURVEDI", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "GOVIND PRASAD CHATURVEDI", "offset_not_found": false}}, {"text": "BARI DUTT SHASTRI AND ANOTHER", "label": "RESPONDENT", "start_char": 33, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "HARI DUTT SHASTRI AND ANOTHER", "offset_not_found": false}}, {"text": "January 28, 1977", "label": "DATE", "start_char": 64, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "BARI DUTT SHASTRI AND ANOTHER\n\nJanuary 28, 1977\n\n[A. N. RAY, c. J., M. H. BEG AND P. s. KAILASAM, JJ.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 101, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. s. KAILASAM, JJ.", "label": "JUDGE", "start_char": 115, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "May 24, 1964", "label": "DATE", "start_char": 664, "end_char": 676, "source": "ner", "metadata": {"in_sentence": "The terms C of the agreement provided that the appellant would get the sale deed executed upto May 24, 1964, and in case of his failure to do so, the earnest money paid by him to the respondent would stand forfeited."}}, {"text": "[1967] 1 SCR 227", "label": "CASE_CITATION", "start_char": 1825, "end_char": 1841, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 2440, "end_char": 2460, "source": "ner", "metadata": {"in_sentence": "Appeal from the Judgment and Decree dated the 20-4-1970 of the Allahabad High Court in First Appeal No."}}, {"text": "A. K. Sen", "label": "JUDGE", "start_char": 2494, "end_char": 2503, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai and P. P. Juneja for the AppellaJJ.t."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 2505, "end_char": 2516, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai and P. P. Juneja for the AppellaJJ.t."}}, {"text": "P. P. Juneja", "label": "LAWYER", "start_char": 2521, "end_char": 2533, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai and P. P. Juneja for the AppellaJJ.t."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 2556, "end_char": 2567, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and M. V. Goswami for Respondents."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 2572, "end_char": 2585, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte and M. V. Goswami for Respondents."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 2648, "end_char": 2656, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J. This appeal is filed by the plainti.ff against the judiment1 of."}}, {"text": "Aditya Narain", "label": "OTHER_PERSON", "start_char": 2952, "end_char": 2965, "source": "ner", "metadata": {"in_sentence": "The facts of the case are briefly as follows : -\n\nThe suit property was owned by one Shri Aditya Narain and the plaintiff/appellant became a tenant of the suit property ullder Aditya Narain in the year 1942."}}, {"text": "2nd January, 1961", "label": "DATE", "start_char": 3073, "end_char": 3090, "source": "ner", "metadata": {"in_sentence": "On 2nd January, 1961 the respQtldents, the two defendants in the suit purchased the suit property for Rs."}}, {"text": "section 3", "label": "PROVISION", "start_char": 3377, "end_char": 3386, "source": "regex", "metadata": {"statute": null}}, {"text": "Chand Doneria", "label": "OTHER_PERSON", "start_char": 3610, "end_char": 3623, "source": "ner", "metadata": {"in_sentence": "On the mediation of Sri Chand Doneria the parties entered into the suit agreement on 24th March, 1964."}}, {"text": "24th March, 1964", "label": "DATE", "start_char": 3671, "end_char": 3687, "source": "ner", "metadata": {"in_sentence": "On the mediation of Sri Chand Doneria the parties entered into the suit agreement on 24th March, 1964."}}, {"text": "24th May, 1964", "label": "DATE", "start_char": 3985, "end_char": 3999, "source": "ner", "metadata": {"in_sentence": "The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed executed within two months i.e. upto 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of Rs."}}, {"text": "5th May, 1964", "label": "DATE", "start_char": 4139, "end_char": 4152, "source": "ner", "metadata": {"in_sentence": "From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed."}}, {"text": "Civil Judge, Agra", "label": "COURT", "start_char": 4385, "end_char": 4402, "source": "ner", "metadata": {"in_sentence": "122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respondents failed to execute the sale, deed as agreed and therefore committed breach of the contract."}}, {"text": "2nd September, 1964", "label": "DATE", "start_char": 4407, "end_char": 4426, "source": "ner", "metadata": {"in_sentence": "122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respondents failed to execute the sale, deed as agreed and therefore committed breach of the contract."}}, {"text": "25th May, 1964", "label": "DATE", "start_char": 6907, "end_char": 6921, "source": "ner", "metadata": {"in_sentence": "If not, its B effect .. 'J!1e High Court fond that the respondents were always ready and .willmg to perform their part of the contract in terms of the agreement dated 24th March, 1964 and it was the appellant who committed the breach of the contract by not getting the sale deed executed by 25th May, 1964 in terms of the agreement dated 24th March, 1964."}}, {"text": "22nd February, 1971", "label": "DATE", "start_char": 7756, "end_char": 7775, "source": "ner", "metadata": {"in_sentence": "The appellant applied for a certificate and the High Court by its order dated 22nd February, 1971 granted the certificate under clause\n\n(a) of Article 133 (1) of the Constitution."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 7821, "end_char": 7832, "source": "regex", "metadata": {"statute": null}}, {"text": "Pandit Govind Prasad Ji Chaturvedi", "label": "OTHER_PERSON", "start_char": 8570, "end_char": 8604, "source": "ner", "metadata": {"in_sentence": "lt runs as follows :-\n\n\"Dear Pandit Govind Prasad Ji Chaturvedi,\n\nSir, G\n\nA litigation has been going on between y~:m and us with respect to the Kothi of Bima Nagar, of which you ar~ a t€nant on behalf of us."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 11017, "end_char": 11025, "source": "regex", "metadata": {"statute": null}}, {"text": "13th May, 1964", "label": "DATE", "start_char": 18217, "end_char": 18231, "source": "ner", "metadata": {"in_sentence": "35, on 13th May, 1964 in which he stated that he was ready to pay the balance of the consideration of Rs."}}, {"text": "20th May, 1964", "label": "DATE", "start_char": 18571, "end_char": 18585, "source": "ner", "metadata": {"in_sentence": "36, on 20th May, 1964 by registered post complainlng that the respondents had not replied to his letter dated 5th May, 1964 and to his lawyer's notice dated 13th May, 1964 and called upon them to get the\n\nsale deed registered by 25th May, 1964 as 24th May is Sunday."}}, {"text": "Agra", "label": "GPE", "start_char": 19099, "end_char": 19103, "source": "ner", "metadata": {"in_sentence": "On the 22nd May the appellant attended the office of the Sub-Registrar, Agra and presented an application to the Registrar to the effect that he was at the Registrar's office between the hours 3 and 4 p.m. on that day."}}, {"text": "22nd May, 1 964", "label": "DATE", "start_char": 19599, "end_char": 19614, "source": "ner", "metadata": {"in_sentence": "In this reply of 22nd May, 1 964 the advocate of the respondents denied the allegation in1 the notice dated 20th May, 1964 of the appellant that the draft sale deed has been put in the cover."}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 20547, "end_char": 20552, "source": "ner", "metadata": {"in_sentence": "Jn fact Mr. Gupte the learned counsel for the respondents submitted that the letter stating that a copy of the draft sale deed v.:as enclosed cannot be true as the appellant could not have got particulars about the earlier document of title of the respondents."}}, {"text": "13th May and 22nd May, 1964", "label": "DATE", "start_char": 21552, "end_char": 21579, "source": "ner", "metadata": {"in_sentence": "P-35 and P-36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale deed."}}, {"text": "Central Bank of India Ltd.", "label": "ORG", "start_char": 23323, "end_char": 23349, "source": "ner", "metadata": {"in_sentence": "20,500 from the Central Bank of India Ltd.\n\nAs the appellant had paid the respondents Rs."}}, {"text": "Kailash Nath", "label": "WITNESS", "start_char": 23988, "end_char": 24000, "source": "ner", "metadata": {"in_sentence": "This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath, P.W.2, Munim of M/s. Chhitar Mal Ram Dayal and the trial court acceptedi the evidence and found that the appellant had suffi- ."}}, {"text": "Munim", "label": "WITNESS", "start_char": 24009, "end_char": 24014, "source": "ner", "metadata": {"in_sentence": "This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath, P.W.2, Munim of M/s. Chhitar Mal Ram Dayal and the trial court acceptedi the evidence and found that the appellant had suffi- ."}}, {"text": "Chhitar Mal Ram Dayal", "label": "WITNESS", "start_char": 24023, "end_char": 24044, "source": "ner", "metadata": {"in_sentence": "This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath, P.W.2, Munim of M/s. Chhitar Mal Ram Dayal and the trial court acceptedi the evidence and found that the appellant had suffi- ."}}]}
{"document_id": "1977_2_886_900_EN", "year": 1977, "text": "MINU B. MEHTA AND ANOTHER\n\nBALKRISHNA RAMCHANDRA NAYAN AND ANOTHER\n\nJanuary 28, 1977\n\n[A. N. RAY, C. J., M. H. BEG AND P. S. KAILASAM, JJ.] Motor Vehicles Act, 1939-S. 95(v)(b)(i) and (ii)-Scope of -Claim for compensation in motor vehicle accidents-Proof of negligence of drilf15r-lf necessary.\n\nTorts-Claim for compensation in motor vehicle accidents-Proof of negligence of drriver-lf necessary.\n\nWhile the respondent was travelling in his car, the appellant's truck, driven by a driver, hit the car and caused injuries to the respondent and damaged the car.\n\nThe Claims Tribunal awarded compensation to the respondent, and the High Court upheld the Tribunal's award.\n\nIn the course of the judgment the High Court, however, observed that every person has a right to security and safety of his person irrespective of the fault or negligence or carelmsness and that every person hlli> a right to claim compensation. irrespective of proof of negligence on the part of the driver.\n\nIt further observed that the perimeters of liability in els. (i) and (ii) of s. 95(i)(b) must be held to he the same because in both, the liability of the owner of the driver exists and is made compulsorily insurable and that it could not be said that the legislature intended absolute liability in cases covered by cl. (ii) and not in cases covered by\n\ncl. (i).\n\nHELD : Proof of negligence is necessary before the owner or the insurer could be held liable for payment of compensation in motor vehicle accident claims.\n\nThe High Court's views are opposed to basic principles of the owner's liability for negligence of his servant and are based on a compkte misreading of the provisions of Chapter VIII of the Motor Vehicles Act. [900 Fl\n\n1. Before a person can be made liable to pay compensation flilr any injuries and damage caused by ms action. it is necessary tha> the perso'Il injured should be able to establish that he has some cause of action against the party responsible.\n\nIn order to succeed in an action for negligence the plantiff must prove ( 1) that the defendanb had, in the circumstances, a duty to take care and that duty was owed by him to the plaintiff and (2) that there was a breach of that dut<y and that as a result of the breach damage was suffered by the plaintiff.\n\nThe master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment. f895 C-Dl 2(a) The puri:ose of making i'Ilsurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.\n\nThe1 safeguard is provided by imposing certain statutory duties, namely, the duty not to drive or permit a car to be driven unless the car is covered by third party insurance. f895 Fl\n\n(b) Under s. 95(1) (b )(i) of the Act, the policy of insurance must be a i:nlicy which insures against any liability which may be incurred in respc' of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is. therefore, obvious that if the owner has not incurred any liab; lity in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contemplated arises under the law of negligence and under the principle of _vicarious liability.\n\nThe provisions of the section do not make the owner or the rnsurance compa.ny Iiabk for any bodily iniurv caused to a third party arising out of the use of the vehicle unless the liability can be fastened on him. [896 D-F]\n\n(c) Under sub-cl. (ii) of s. 95(1)(b) of the Act the policy of insurance must insure a person against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.\n\nSo far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability incurred by the person. The expression \"liability which may be incurred by him\" in sub.-cl. (i) is meant to cover any liability arising out of the use of the vehicle. Therefore, the person must be under a liability and that liability alone is covered by ihe insurance policy. [896 F-H] ·\n\n(d) The owner's liability arises out of his failure to discharge a duiy cast on him by law. The right to receive compensation can only be against a person who is bound to_ compensate due to the failure to perform a legal obligation.\n\nJi a person is. not liable legally he is under no duty to compensate any one else. The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor vehicles claims. The general -~ law applicable is only co.mmon law and the law of orts. ner he lf!:W a\n\n.,,\n\n- - person becomes legally !table then the person suffermg the m1unes 1s enhtled to be compensated and the tribunal is authorised to determine the amount of C f compensation which appears to be just. The plea that the Claims Tribunal is en.titled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place without proof of negligence, if accepted, would lead to strange results.\n\n[897 E-F]\n\n3. The po\\ver to constitute one or more Motor Vehicle Claims Tribunals under s. 110(1) is optional and the State Government may not constitute a Claims Tribunal for certain areas. When a claim includes a claim for compensa- D tion, the claimant has an option to make his cfa.im before the Civil Court. In\n\nclaims for compensation, therfore, in certain cases, Civil Courts also have iurisdiction. If the contention put forward is accepted so far as the Civil Court is concerned, it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without coming to the conclusion that the owner is liable The concept of owner's liability without any negligence is opposed to the principles of law.\n\nThe mere fact that a party E received an injury arising out of the use of a vehicle in a public place, annot justify fas1ening liability on the owner. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself kille.d.\n\nIn such cases, the owner cannot be made liable.\n\nProof of negligence remains the lynch pin to recover compensation. [897 H; 898 A-Bl\n\nHaji Zakaria and others v. Naoshir Cama and others A.I.R. 1976 A.P. 171 and New India Assurance Co. Ltd. v. Sumitra Devi and others, 1971 A.CJ. 58 not approved. Kesavan Nair v. State Insurance Officer, 1971 A.CJ. 219 and Afls. Ruby [nsurance Co. Ltd. v. V. Govindaraj and others, A.A.O. 607 of 1973 and 296 of 1974 decided by the Madras High Court on December 13, 1976 referred to.\n\nCIVIL APPELLATE JURismcnpN : Civil Appeal No. 1249 of 1976.\n\nAppeal by Special Leave from the Judgment and Order dated . the 23-3-1976 of the Bombay High Court in C. No. 449/75 from Onginal\n\nDecree.\n\nF. S. Nariman, J. M. Patel and B. R. Agarwala for the Appellants.\n\nR. D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for Res. No. 1.\n\nK. K. Singhvi and V. N. Ganpule for the applicant/Intervener.\n\nThe Judgment of Court was delivered by KAfLAAAM, J. This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the\n\nBombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribunal in favour of the\n\nr.es~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs. 20,000 under section llOE of the Motor Vehicles Act, } 939 referred to as the Act after giving opportunity to the parties.\n\nThe applicant in .t\\pplication No. 727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal.\n\nOn 14th April, 1969 at about 1.00 p.m. the respondent was driving his car No. MRC-4450 towards Fort side on Dr. Annie c Besant Road. With him was sitting on the left side in the front seat Mala ti - M. Deshmukh, his nurse.\n\nThe road has stone dividers in the middle of the road.\n\nWhen the car approached Lotus cinema the truck owned by the appellants and insured with the Insurance Company who we<e opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at a high speed and dahed\n\nagainst the right side of the car.\n\nDue to the impact the car was damaged and the 1st respondent and Malati M. Deshmukh were injured.\n\nRespondent 1 had to undergo treatment.\n\nHe was operated on the day of the accident itself and was patient in his own Nursing Home for a month till 15th May, 1969.\n\nAccording to him his right arm was operat~ and kept in plaster and that he had become permanently disabled in discharging his duties as a surgeon and that he had incurred a loss during the closure of the Nursing Home and loss of income due to permanent injury along with other claims. He claimed\n\na sum of Rs. 3 lakhs by way of general and special damages with interest thereon from the date of his application.\n\nThe owners of the vehicle filed a written statement refuting the claim of the applicant.\n\nAccording to them while the motor lorry was proceedin~ from Haji Ali towards \\Vorli, they had taken all precautions to keep the lorry in road W0fthy condition and that at the. material time the axle brake ring of the motor lorry came out and the driver therefore lost control of the vehicle and because of this defect which can develop in a ruRning car the driver lost control of the steering wheel.\n\nAccording to them the lorry prior to the accident was being driven at a moderate spied with due care and caution.\n\nThey contended that the accident did not occur on account of rash and negligent driving on the part of the driver.\n\nThey also denied the claim of various items of compensation made by the applicant.\n\nThe Motor Accidents Claims Tribunal framed four issues.\n\nThe first 2 issues were whether the applicant had proved that the driver of\n\nthe lorry was driving the vehicle in rash and negligent manner and whether the opposite party had proved that at the time of the accident the axle brake ring of the motor lorry came out and the driver Jost control of the motor lorry.\n\nThe other 2 issues related to the question as to whether the applicant received the in juries as a result of this accident and whether he was entitled to the compensation claimed by him.\n\nMINU B. ]\\, fEHTA v. B. R. NAYAN (Kai/asam, J.) 889\n\nThe applicat ex.amined hll?-selj and Mal.ati M. Des?mukh :Wh? was travelling with bun at the tune_ of the accident regardmg the mc1- .dent.\n\nHe also examined P. Ws 2 and 3, P. W. 2 a nurse to prove his income from his profession and P.W. 3 a doctor who treated him. On behalf of the appellant 6 witnesses .were examined in support of their case that the accident was due to a 'mechanical failure and not due to any rashness or negligence on the part of the driver.\n\nThe Tribunal after elaborately discusing the oral' aml'documentary evidence adduced before it found that the accident was due to ; the rash and negligent driving of the driver of the lorry and the _cjffence set up that the accident was due to mechanical failure of th<'. fof ry was unacceptable.\n\nThe Claims Tribunal accepting the evidence of the applicant and a Customs Officer, Mr. Jawa.kar, who was examined as D.W.4 on the side of the appellants, came ,, t-0 the conclusion. that when the doctor was in the traffic lane nearer to the road divider the lorry crossed the road divider and hit the car. The defence witness himself stated that the lorry came after crossing the central barricade.\n\nThe lorry went @ff the track and went on the wrong side and collided with the oncoming car of the applicant who was in his car. Referring to his notes the witness stated that the right side of the lorry went and hit the right side of the car of the applicant.\n\nThe portion of the lorry upto the driver's seat collided with the right side of the car.\n\nBoth the wheels of the front side of the lorry had crossed the central reservation tract and so also the right rear wheel was on the wrong side and only the left rear wheel was just near the edge of the central reservation tract towards Lotus cinema.\n\nOn the face of the evi-- dence of the doctor and their own witness D.W.4 who was travelling in the lorry there could be no denying the fact that the lorry crossed the middle of the road.\n\nRelying on the evidence of the two witnesses as well as the doctrine of res ispa loquitur the Claims Tribunal rightly found that the applicant had established rash and negligent driving on the part of the driver and the lorry.\n\nThe Accidents Claims Tribunal has also discussed elaborately the defence set up on behalf of the owners of the lorry and rejected it.\n\nThe plea that was taken in the pleadings was that at the time of the accident \"Axle Brake Ring\" of the lorry came out.\n\nThe expert examined on behalf of the owner, Jimmy Dara Engineer, D.W. 6, stated that he had never heard of any such part as axle brake ring and he has never seen such a part. The owners subsequently explained that what they meant by \"Axle Brake Ring\" was drag link on the rod enll.\n\nThe Claims Tribunal also referred to the evidence of the expert examined on behalf of the owners a11d remarked that the nut on the pin could not be blown on' all of a sudden and that the driver, unless he was negligent, could feel the change if t11ere was anything wrong with the drag link end and can stop the vehicle immediately.\n\nRejecting the evidence of the driver and relying on the evidence of the expert on tlle side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 red and need not cover the distance which it did, the Claim Tribunal\n\nalso found tllat the' defect which tlle defence witness, Motor Vehicle Illspector J>artapsingh Chavan, D.W.I. saw when he examined the\n\n890 SuI'REJ\\JE COURT REPORTS [ l 977] 2 s.c.R.\n\nA lorry on 22nd April, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on 22nd April, 1969. Criticising the conduct of the owners as unworthy of their status the Claims Tribunal totally rejected the defence.\n\nRegarding the compensation the Claims Tribunal fixed the amount at Rs. 1,43,400i-together with interest at 6 per cent.\n\nThis sum was apart from a sum of Rs. 500 which was found payable to Malati M. D\"5hmukh who had sustained injuries.\n\nThe Claims Tribunal directed the owners as well as the insurers jointly to pay the amount, to the respondent Dr. Balkrishna Ramachandra Nayan.\n\nIt alSo directed the op?Osite parties and insurers to pay Rs. 1000 as costs and Rs. 100 as costs of Malati M. Deshmukh.\n\nThe Claims Tribunal fixed a sum of Rs. 73,779 as the loss sustained by the doctor for a period of 4 years from the date of the accident.\n\nIt also for a subsequent period of 7 years fixed the future loss at Rs. 9,000 a year and a total amount of Rs. 63,000. In addition it awarded a sum of Rs. 5,000 for discomfort and inconvenience D suffered by the doctor. Thus the total compensation that was granted\n\namounted to Rs. 1,43,400.\n\nAs already stated the interest was awarded from the filing of the application till payment.\n\nThe insurance company as well as the owners of 'the lorry preferred appeal against the award of the Tribunal iii'i;.ppeal No. 449 .of 1975 before the High Court of Bombay.\n\nThough the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs. 20,000.\n\nThe High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming frG;'.11 the opposite direction.\n\nAgreeing with the Tribunal it found that the driver was negligent. The High Court concurred with the reasons and findings of the Tribunal.\n\nIt also held in the cjrcumstances of the case that the principle res ipsa loquitur applied.\n\nThe High Court also rejected the defence taken by the owners that the injury was due to a mechanical defect and not due to the negligence.\n\nAfter referring to the evidence and the reasoning of the Tribunal on the defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners.\n\nThe High Court regarding the defence raised found itself in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negligent.\n\n• I\n\n.,,\n\nRegarding the quantum of damages the High Court expresseu its opinion tliat the Tribunal had made best efforts and trid to determin~ the compensation in a iust manner on the facts and circumstances of the case. It confirmed the amount as awarded by the Tribunal and dismissed the appeal':\" The High Court dismissed the appeal of the owners and the insurance company and confirmed the award passed by the Tribunal.\n\nBut it gave..Jiberty to the insurance company to apply to the Claims Tribunal on depositing Rs. 20,000 with interest from the date of the application to the date of the deposit for determination of the question that the liabiliy of the insurance company is limited only to Rs. 20,000.\n\nThe High Court directed the Tribunal to decide the question of the liability of the insurance company on its application under section 11 OE by giving opportunity to the parti!:S .to put forward their cases.\n\nInsurance company was directed to pay the costs of all the parties.\n\nIt also provided that the claimant was at liberty to withdraw Rs. 20,000 with interest when deposited by the insurance company.\n\nThe order also made it clear that the right of the applicant to recover the balance of the awarded amount from the other party or from the insurance company will not in any way be affected.\n\nThe appeal to this court is preferred by the owners.\n\nThe insurance company is impleaded as the second respondent in the appeal before us.\n\nMr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry a, nd therefore the question will have to be gone into by this Court or remanded for fresh disposal.\n\nWe find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was the driver who was negligent and that they fully concur with the reasons and findings of the learned Member of the Tribunal.\n\nIn the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court. We find ourselves in complete .agreement with the finding of the Tribunal and the High\n\nCourt.that it was due to rash and negligent driving of the lorry that the car in which th<> applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them.\n\nWe accept the testimony of the doctor and D.W. 4 Jawakar that the lorry crossed the Toad dividers, ran into the wrong side and hit the car which was driven by the applicant.\n\nWe have no hesitation in accepting the concurrent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver.\n\nWe have also no hesitation in rejecting the testimoney of the defence that there was some mechanical defect which resulted in the tie rod end breaking.\n\nWe find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them.\n\nJn this connection we may also point out that in order to succeed in a\n\n9-206SCI/77 .\n\n- - , defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition.\n\nNo such attempt was made to establish that all necessary precautions were taken to keep te lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners .\n\nIn order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care.\n\nThe owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care.\n\nThe law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons.(').\n\nIn that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate.\n\nAs a result the Jorry struck and killed a man who was emerging from a parked vehicle.\n\nThe defence was that brake failure was due fo a latent defect not discoverable by reasonable care on driver's part. It was found that the lorry was five years old and had done at Jcast 150,000 miles.\n\nThe brake9 were hydraulically operated.\n\nIt was also found after the accident that the brake failure was due to a steel pipe bursting from .7mm. to .lmm.\n\nThe corrosion had occurred where it could not be seen except by removing the pipe completely from the vehicle and this had never been done.\n\nExpert evidence showed that it was not a normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded.\n\nThe corrosion was unusual and unexplained.\n\nAn expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea.\n\nThe House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged.\n\nThe defect remained undiscovered despite due care As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusal occurrence to cause the breakdown. (See Bingham'? Motor Claims Cases Seventh Ed., p. 219).\n\nThe burden of proving that the accident was ijue to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remaind hidden.\n\nIn this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a runnincr vehicle resulting in the driver's losing control of the steering wh; el.\n\nThough it was stated that all precautions were taken to keep the lorry in a roadworthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent defect and could not have been discovered by the use of reasonable care.\n\nThis lack of plea is in addition to the Jack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.\n\n(1) (19701 A.C.282(1969] 3 All E.R. 756\n\n• •\n\nMr. Nariman then submitteQ_ that the quantum of compensation awarded was very high.\n\nHe submitted that even according to the figures relied on by the High Court it was in error in coming IC? the conclusion that for. a period of 4 years from the date of the accident the claimant has suffered a damage of Rs. 73,779.\n\nThe learned . counsel submitted that though during the first year there was a loss of Rs. 3,530 in subsequent years he earned various amounts and in one year he earned Rs. 7,981 which would mean that during subsequent years his loss would not have been more than Rs. 10,000 and as admittedly the Nursing Home was kept as a going concern the award of Rs. 10,000' per year for the four years would be very high.\n\nWe have considered this contention carefully but taking all the drcumstances into account we do not feel called upon to interfere with the quantum arrived at by the Tribunal and confirmed by the High Court. The learned Counsel also submitted that the provision for Rs. 63,000 for the 7 years as the likely loss due to the doctor's disability is also very high.\n\nIn this case also we po not feel called upon to interfere with the quantum arrived at by the Tribunal as wel! as the High Court. Lastly, the learned counsel submitted that in any event the interest awarded from the date of the application is not justified.\n\nWe do not think we will be justified in interfering with the amount of interest awarded by the High Court from the date of the filing of the application.\n\nOn the above findings we confirm the award passed by the Claims Tribunal in favour of the applicant/respondent No. 1 for Rs. 1,43,400\n\nwith interest at 6% per annum from the date of the filing of the application and also a sum of Rs. 500 granted to Malati M. Deshmukh . and the costs awarded.\n\nThe liability of the owners and the insurance company will be joint and several and the respondent would be at liberty to proceed against either or both of them to realise the amount awarded in his favour.\n\nWe have now to consider the direction given by the High Court regarding the determination of the liability as between the insurance F company and the owners.\n\nThe owners and the insurance company were represented by the same counsel before the Tribunal and before the High Court the learned counsel on behalf of the insurance company pleaded that its liability is limited to Rs. 20,000 only.\n\nThe High Court has given liberty to the insurance company to apply on depositing Rs. 20.000 with interest as directed for determination of the question that the liability of the insurance company is limited to G Rs. 20,000.\n\nThe High Court also direted the Tribunal to decide the liability of the insurance company on the insurance company filing such an application after giving notice to all the parties.\n\nThe insurance company has not appealed against the judgment and decree of the High Court and we see no reason for interfering with the order.\n\nOn the insurance company complying with the directions of the High Court by depositing Rs. 20,000 with interest as specified the matter H will be remitted to the Tribunal for determination of the question whether the liability of the insurance company is limited to Rs. 20,000 only. It is inade clear that so far as the award made in\n\nfavour of the pplicantlrespondent is concerned he will be at liberty to proceed agamst t_he owners as well as the insurance company jointly and severally.\n\nWith these directions the appeal is dismissed with the cost of the first respondent.\n\nThis should normally conclude the judgment but we feel it desirable that we must deal with the question of law that has been\n\ndealt with at considerable length by the High Court as to whether it is incumbent on the claimant to prove negligence before he would become entitled to compensation.\n\nThe High Court after concurring with the findings of the Tribunal and holding that the driver was negligent proceeded to state that it would not have been necessary for them to say anything more but for the fact that taking into account the importance of matter and in public interest it would be appropriate to express its view that it is not necessary to prove negligence on the part of a driver before claiming compensation.\n\nBoth the learned Judges have written lengthy judgments fuJy discussing the matter and have come to the conclusion that the fact of an injury resulting from the accident involving the use of a car on the public road is the basis of a liability and that it is not necessary to prove any negligence on_the part of the driver. We find that a Bench of the Andhra Pradesh High Court has held in Haji Zakaria and Others v. Naoshir Cama and others (1) that the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury etc. has been caused by rash and negligent driving.\n\nThough this question does not arise in this appeal as the two High Courts have expressed an opinion which in our view has no basis either in the Legislative history or on a construction of the relevent provisions of the Motor Vehicles Act we feel it necessary to state the position of law.\n\nThe liability of the owner of the car to compensate the victim in a car accident due to the negligent driving of his servant is based on the law of tort.\n\nRegarding the negligence of the servant the owner is made liable on the basis of vicarious liability.\n\nBefore the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent.\n\nThe number of the vehicles on the road increased phenumenally leading to increase in road accidents.\n\nTo remedy the defect various steps were taken.\n\nIn England the owners of the vehicle voluntarily insured against the risk of injury to other road users.\n\nWith the increase of traffic and accidents it was found that in a number of cases hardship wa~ caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted.\n\nIn order to meet this contingency the Road Trame Act, 1930, The Third Parties (Rights against Insurers) Act, 1930 and the Road Traffic Act 1934 were enacted in England. A system of compulsory msurance as enacted by the Road Traffic Act, 1930. Its object was to reduce the number of cases where judgment for personal injuries\n\n(!) A.I.R. 1976 A.P. 171.\n\nobtained against a motorist was not met owing to the lack of means of the defendant in the running, dciwn action and his failure to insure against such a liability. It is sufficient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur.\n\nThe Indian law introduced prov1s10ns relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act.\n\nThese provisions almost wholly adopted the provisions of the English law.\n\nThe relevant sections found in the three English Acts, Road Traffic Act, 1940, the Third Parties (Right against Insurers) Act, 1930 and the Road Traffic Act, 1934 were incorporated in Chapter VIII.\n\nBefore a person can be made liable . to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or iniured should be able to establish that he has some cause of action against the party responsible. Causes of action may arise out cif actions for wrongs under the common law or for breaches of duties laid down by statutes.\n\nIn order to succeed in an action for negligence the plaintiff must prove ( 1) that the defendant had in the circumstances a duty to take care and that duty was owed by him to the plaintiff, and that (2) there was a breach of that duty and that as a result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the :; ervant is proved to have acted negligently in the course of his employment.\n\nApart from it in common law the master is not liable for as it is often said that owner of a motor car does not become liable because of his owning a motor car.\n\nThe purpose of enactment of Road Traffic Acts and making insurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability.\n\nThe safeguard is provided by imposing certain statutory duties namely the duty not to drive or permit a car to be driven unless the car is covered by the requisite form of third party insurance.\n\nSection 94 of the Act, provides that no person shall use except as a passenger or cause or allow any. other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of the Chapter. Section 95 of the Act is very important and that specifies the requirements of policies and limits of liability.\n\nSection 95 ( 1) (a) and (b) of the Act arn extracted. They run as follows :\n\n\"95. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-\n\n(a) is issued by a person who is an authorised insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and\n\n(b) insures the person or .classes of persons specified in the policy to the extent specified in sub-section (2)-\n\n(i) gainst any liability which may be incurred by him m respect of the death or of bodily injury to any person or damage to any property. of a third party caused by or arising out of the use of the vehicle in a public place;\n\n(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place :\n\n* * * * *\"\n\nUnder section 95 ( 1) (b) (i) of the Act it is required that policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any persOJ! or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.\n\nIt may be noted that what is intended by the policy of insurance is insuring a person against any liability which may be incurred by him.\n\nThe insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury.\n\nThe accident to which the owner or the person insuring is liable to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is therefore obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance.\n\nThe liability contemplated arises under the law of negligence and under the principle of vicarious liability.\n\nThe provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to a third party arising out of use of the vehicle unless the liability can be fastened on him.\n\nIt is significant to note that under sub-clause (ii) of section 95(1) (b) of the Act the policy of insurance must insure a person against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.\n\nUnder section 95 ( 1) (b) clause (ii) of the Act the liability of j:he person arises when bodily injury to any passenger is caused by or use of the vehicle in a public place.\n\nSo far as the bodily injury caused to a passenger is concerned it need not be. due to any act or liability ~· incurred by the person. It may be noted that the provisions of section 95 are simHar to sectionf36h( )h C!f the Ehngliffsh Rohad Traffi 1 Actf, . 1930, the rele.vant portion o w 1c 1s to t e _e ect t at a po icy o insurance must be policy which insures a person in respect of any liability which may be incurred by him in respect of death or bodHy\n\ninjury to any person caused by or arising out of the use of the vehicle on road.\n\nThe expression \"liability\" which may be incurred by him\" is meant as covering any liability arising out of the use of the yhicle.\n\nIt will thus be seen that the person must be under a liability and that liability alone is cover~ by the insurance policy.\n\n> •\n\n•• MINU Il. MEHTA v. B. R. NAYAN (Kai/asam, 1.) 897\n\nSection 96 of the Act also makes the position clear. It provides that when a judgment in respect of such a liability as is required to be covered by a policy is obtained against any person insured by the policy, then the insurer shaµ -pay to the person etitl_e~ te benet <;>f\n\nthe decree as if he were a Judgment-debtor. The liability ts thus !itruted to the liability as is covered by the policy. .\n\nThe main contention of Mr. Hattangodi, who supported the view of the High Court that negligence -need not be proved is that Chapter VIII of th_e. Act is a consolidating and amending Act relating to motor\n\nvehicles and their use on a public place and as such it contains the entire Jaw, procedural as well as substantive, and that the co=on law or law of torts is no more applicable and if death or bodily injury arises out of the use of motor vehicles in a public place a liability arises. Strong reliance was placed by him on section llOA of the Act which provides for application for compensation arising . out of an accident to the Claims Tribunal. The learned counsel would submit that under section 11 OB the Claims Tribunal, after holding an inquiry, may make an award determiuing the amount of compensation which appears to i_t to be just _and specifying _the person or persons to whom the compensation shall be paid. According to counsel when an injury is caused by the use \"of the vehicle in a public place the Claims Tribunal is at liberty to award an amount of compensation which appears to it to be just.\n\nThis plea ignores the basic requirements of the owner's liability and the claimant's right to receive compensation. The owner's liability arises out of his f'!ilure to discharge a duty cast on him by law . .The right to receive compensation can only be against a person who\n\nis bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate any one else..\n\nThe Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor claims.\n\nThe general law applicable is only common law and the law of. torts.\n\nIf under the law a person becomes legally liable then the person suffering the injuries is entitled tobe compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a vehicle on a public place withou_t _proof of negligence if accepted would lead to strange -, results. -\n\nSection 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified for the_ purpose of adjudicating upon claims . for compensation in respect of accidents involving the death or bodily ' fojury to persons. The power is optional and the State. Government may not constitute a Claims Tribunal for certain areas.\n\nWhen a claim includes a claim for compensation the claimant has an option to make his claim before the Civil Court.\n\nRegarding claims for compensation therefore in certain cases Civil Courts also have jurisdiction. If the contention put forward is accepted so far as the Civil\n\nA -------..\n\nCourt is cocerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without oin~ _to th~ conclusion th.at the ?Wner is liable. The concept o! owners hab1l1ty without any negligence 1s opposed to the basic principles of law. The mere fact that a party received an injury arising out\n\nf the use of a vehicle in a public place, cannot justify fastening liabillty on the ow11er. It may be that a person bent upon committing suicide may jump before a car in motion and thus get himself killed.\n\nWe cannot perceive by what reasoning the owner of the car could be made liable.\n\nThe proof of negligence remains the lynch pin to recover compensation.\n\nThe various enactments have attempted to mitigate a possible injury to the claimant by prov!iding for payment of the claims by insurance.\n\nIn Halsbury's Laws of England, 3rd Ed., Vol. 32, at paragraph 751 at p. 366 the nature of insurance required is stated as follows :-\n\n\"The conditions to be fulfilled in order to render the use of a motor vehicle lawful are ( 1) that there must be a policy of insurance in force in relation to the use of the vehicle on a road, and (2) that it must be a policy complying with the ' relevant statutory requirements.\"\n\nAt paragraph 752 at page 366 the general nature of liabilities required to be co_vered are stated as under :\n\n\"In order to comply with the statutory requirements, a policy must provide insurance cover in respect of any liability which may be incurred by such person, persons or classes of persons as are specified in the policy, in respect of the death of, or bodily injury to, any person (subject to specific exceptions) caused by, or arising out of, the use of the vehicle on a road.\"\n\nThe authorised insurers issuing a policy pursuant to the statutory requirements are obliged to indemnify the person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or classes of persons.**':'\" (Paragraph 758 at p. 369). These passages clearly indicate that the nature of the liability required to be covered is the liability which may be incurred by or arising out of the use of a vehicle on a road by the person.\n\nA person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case, of a motor accident the owner is enly liable for negligence and on proof of vicarious liability for the acts of his servant.\n\nThe necessity to p1ovide effective, means fo~ compen~.a.ing the victims in mot?r ac:cidents should not blind us m determmmg the state of law as 1t exists today.\n\nJustice Vaidya in thi.s iudgment under appeal after referring to various deisions expressed his view as follows :-\n\n\"It is not necessary to discuss all these cases because, in any view, in none of those cases was the question agitated\n\nMINU B. MEHTA v. B. R. NA\"._AN (Kai/asam, J.)\n\nas to what exactly was meant by tort in the context of automobile accidents and injuries resulting therefrom, for which\n\nmore often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century.\n\nThe question has engaged the minds of jurists all over the common law world .... \"\n\nThe learned Judge proceeded further to observe that whether we apply the test of torts or not the liability to pay compensation arises when the injuries are caused by the use of the motor vehicle and the Tribunal can adjudicate upon the liability and determine just compensation.\n\nThe learned Judge further observed : \"In my opinion, public good requires that everyone injured, V'iz., by the use of motor vehicle, must immediately get compensation for the injury.\n\nEvery person has a right to safety and security o~ his person irrespective of fault or neg!igence or carelessness or efficient functioning of the motor vehicle.\n\nEvery person has a right to claim compensation so that is the only way of remedying the injury caused to him in a modern urbanised, industrialised and automobile ridden life.\"\n\nIn a separate. judgment Justice Mridul has expressed himself in the same tenor. The learned Judge after referring to section 95 (1) (b)\n\n(i) and ( 1) (b )(ii) of the Act observed that perimeters of liability in clauses (i) and (ii) must be held to be th.e same because to both the liability of the owner or the driver exists and is made compulsorily insurable. The learned Judge while noting the difference in the wording of the two clauses observed that it' is incon'ceivable that the legis- E: lature. would intend absolute liability in cases covered by clause (ii) and not in cases covered by clause (i).\n\nThe reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on a complete misreading of the provisions of F.\n\nChapter VIII of the Act. The High Court's zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation.\n\nEqually unacceptable is the view of the Bench 'of the Andhra Pradesh High Court in Haji Zakaria and others v. Nashir Cama and others C), wherein the court concluded without any hesitation that the liability to compensate arises when death or bodily injury to any person or damage to any property Qf a third party is caused by or arisingi\n\nout of the use of the vehicle in a public place and to infer the qualifieations or limitations that such death or bodily injury should have been 40aused before such liability arises only on account of rash nnd negligent driving would amount to introducing something which is not there and would be violating and transgressing the clear provisions of the statute and intention of-the legislature.\n\n(l) A. I. R. 1975 A. P. 171.\n\n. -, .. \" - ... __ ..\n\nThe Patna High Court in New India Assurance Co. Ltd. v. Sumant Devi and Others(') held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy. As against this view all the other High Courts have held that the liability to compensate arises only on a finding of negligence.\n\nIt may not be out of place to mention that those automobile accidents are sub~ ject to he law of negligence.\n\nModern proposals consistent1y favour the Social Insurance model under which benefits are payable directly by the fund without any reference at all to the injurer while retaining an option for the victim to claim either limited benefits on a nonfault basis or full damages for negligence.\n\nConsistent with this line of thinking is the judgment of the Kerala High Court in Kesavall Nair v. State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus : \"Out of a sense of humanity and having due regard to the handicap of the innocent v-ictim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.\" Modern legislation has also provided insurance cover for all air and rail passengers and recently by amendment of section 95 of the Act against death or bodily injury to passengers of a public service vehicle caused by or arising out of the use of a vehicle in a public place.\n\nIn a recent judgment of Madras High Court a Division Bench is A.AO. Nos. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj and others, delivered on 13th December, 1976, has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs. 250 to Rs. 300 a month. It has also suggested that instead of a Jump sum payment which does not often reach the claimants a regular monthly payment to the dependants by the nationalised insurance company or bank would be desirable.\n\nUnless these ideas are accepted by the legislature and embodied in appropriate enactments Courts are bound to administer a.nd give effect .. to the Jaw as it exists today.\n\nWe conclude by statmg that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary. before the owner of the insurance company could be held to be liable for the payment of compensation in a motor accident claim case.\n\nBut as we have found that the vehicle owner was liable for negligence of the driver and have upheld the amount of damages awarded, we dismiss this appeal. with cost to the first respondent.\n\nP.B.R.\n\nAppeal dismissed.\n\n(119/l A.Cl. 5~.\n\n(2) 1971 A.C.Ut9.", "total_entities": 79, "entities": [{"text": "MINU B. MEHTA AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "MINU B. MEHTA AND ANOTHER", "offset_not_found": false}}, {"text": "BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER", "label": "RESPONDENT", "start_char": 27, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER", "offset_not_found": false}}, {"text": "January 28, 1977", "label": "DATE", "start_char": 68, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "MINU B. MEHTA AND ANOTHER\n\nBALKRISHNA RAMCHANDRA NAYAN AND ANOTHER\n\nJanuary 28, 1977\n\n[A. N. RAY, C. J., M. H. BEG AND P. S. KAILASAM, JJ.]"}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 87, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 105, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 140, "end_char": 164, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 95(v)(b)(i)", "label": "PROVISION", "start_char": 165, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "s. 95(i)(b)", "label": "PROVISION", "start_char": 1056, "end_char": 1067, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "Chapter VIII of the Motor Vehicles Act", "label": "STATUTE", "start_char": 1668, "end_char": 1706, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 95(1)", "label": "PROVISION", "start_char": 2827, "end_char": 2835, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 95(1)(b)", "label": "PROVISION", "start_char": 3869, "end_char": 3880, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 110(1)", "label": "PROVISION", "start_char": 5580, "end_char": 5589, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 7048, "end_char": 7065, "source": "ner", "metadata": {"in_sentence": "Ruby [nsurance Co. Ltd. v. V. Govindaraj and others, A.A.O. 607 of 1973 and 296 of 1974 decided by the Madras High Court on December 13, 1976 referred to."}}, {"text": "December 13, 1976", "label": "DATE", "start_char": 7069, "end_char": 7086, "source": "ner", "metadata": {"in_sentence": "Ruby [nsurance Co. Ltd. v. V. Govindaraj and others, A.A.O. 607 of 1973 and 296 of 1974 decided by the Madras High Court on December 13, 1976 referred to."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 7301, "end_char": 7314, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. M. Patel and B. R. Agarwala for the Appellants."}}, {"text": "J. M. Patel", "label": "LAWYER", "start_char": 7316, "end_char": 7327, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. M. Patel and B. R. Agarwala for the Appellants."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 7332, "end_char": 7346, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. M. Patel and B. R. Agarwala for the Appellants."}}, {"text": "R. D. Hattangadi", "label": "LAWYER", "start_char": 7368, "end_char": 7384, "source": "ner", "metadata": {"in_sentence": "R. D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for Res."}}, {"text": "George Kurien", "label": "LAWYER", "start_char": 7386, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "R. D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for Res."}}, {"text": "Urmila Sirur", "label": "LAWYER", "start_char": 7411, "end_char": 7423, "source": "ner", "metadata": {"in_sentence": "R. D. Hattangadi, George Kurien and (Mrs.) Urmila Sirur for Res."}}, {"text": "K. K. Singhvi", "label": "LAWYER", "start_char": 7441, "end_char": 7454, "source": "ner", "metadata": {"in_sentence": "K. K. Singhvi and V. N. Ganpule for the applicant/Intervener."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 7459, "end_char": 7472, "source": "ner", "metadata": {"in_sentence": "K. K. Singhvi and V. N. Ganpule for the applicant/Intervener."}}, {"text": "KAfLAAAM", "label": "JUDGE", "start_char": 7543, "end_char": 7551, "source": "ner", "metadata": {"in_sentence": "The Judgment of Court was delivered by KAfLAAAM, J. This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the\n\nBombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribunal in favour of the\n\nr.es~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 7594, "end_char": 7605, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 7677, "end_char": 7694, "source": "ner", "metadata": {"in_sentence": "The Judgment of Court was delivered by KAfLAAAM, J. This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the\n\nBombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribunal in favour of the\n\nr.es~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs."}}, {"text": "Additional Motor Accidents Claims Tribunal for Greater Bombay", "label": "COURT", "start_char": 7747, "end_char": 7808, "source": "ner", "metadata": {"in_sentence": "The Judgment of Court was delivered by KAfLAAAM, J. This appeal is by special leave under Article 136 of the Constitution by the two appellants against the judgment of the\n\nBombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bombay and confirming the award passed by the tribunal in favour of the\n\nr.es~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs."}}, {"text": "OE of the Motor Vehicles Act", "label": "STATUTE", "start_char": 8058, "end_char": 8086, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Motor Accidents Claims Tribunal for Greater Bombay", "label": "COURT", "start_char": 8217, "end_char": 8267, "source": "ner", "metadata": {"in_sentence": "727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal."}}, {"text": "Balkrishna Ramchandra Nayan", "label": "RESPONDENT", "start_char": 8279, "end_char": 8306, "source": "ner", "metadata": {"in_sentence": "727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal.", "canonical_name": "BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER"}}, {"text": "14th April, 1969", "label": "DATE", "start_char": 8370, "end_char": 8386, "source": "ner", "metadata": {"in_sentence": "On 14th April, 1969 at about 1.00 p.m. the respondent was driving his car No."}}, {"text": "Mala ti - M. Deshmukh", "label": "RESPONDENT", "start_char": 8556, "end_char": 8577, "source": "ner", "metadata": {"in_sentence": "With him was sitting on the left side in the front seat Mala ti - M. Deshmukh, his nurse.", "canonical_name": "Mala ti - M. Deshmukh"}}, {"text": "Motor Accidents Claims Tribunal", "label": "COURT", "start_char": 8801, "end_char": 8832, "source": "ner", "metadata": {"in_sentence": "When the car approached Lotus cinema the truck owned by the appellants and insured with the Insurance Company who we<e opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at a high speed and dahed\n\nagainst the right side of the car."}}, {"text": "Malati M. Deshmukh", "label": "RESPONDENT", "start_char": 8994, "end_char": 9012, "source": "ner", "metadata": {"in_sentence": "Due to the impact the car was damaged and the 1st respondent and Malati M. Deshmukh were injured.", "canonical_name": "Mala ti - M. Deshmukh"}}, {"text": "15th May, 1969", "label": "DATE", "start_char": 9175, "end_char": 9189, "source": "ner", "metadata": {"in_sentence": "He was operated on the day of the accident itself and was patient in his own Nursing Home for a month till 15th May, 1969."}}, {"text": "Haji Ali", "label": "GPE", "start_char": 9755, "end_char": 9763, "source": "ner", "metadata": {"in_sentence": "According to them while the motor lorry was proceedin~ from Haji Ali towards \\Vorli, they had taken all precautions to keep the lorry in road W0fthy condition and that at the."}}, {"text": "\\Vorli", "label": "GPE", "start_char": 9772, "end_char": 9778, "source": "ner", "metadata": {"in_sentence": "According to them while the motor lorry was proceedin~ from Haji Ali towards \\Vorli, they had taken all precautions to keep the lorry in road W0fthy condition and that at the."}}, {"text": "Jawa.kar", "label": "WITNESS", "start_char": 11871, "end_char": 11879, "source": "ner", "metadata": {"in_sentence": "The Claims Tribunal accepting the evidence of the applicant and a Customs Officer, Mr. Jawa.kar, who was examined as D.W.4 on the side of the appellants, came ,, t-0 the conclusion."}}, {"text": "Jimmy Dara Engineer", "label": "WITNESS", "start_char": 13502, "end_char": 13521, "source": "ner", "metadata": {"in_sentence": "The expert examined on behalf of the owner, Jimmy Dara Engineer, D.W. 6, stated that he had never heard of any such part as axle brake ring and he has never seen such a part."}}, {"text": "J>artapsingh Chavan", "label": "WITNESS", "start_char": 14410, "end_char": 14429, "source": "ner", "metadata": {"in_sentence": "Rejecting the evidence of the driver and relying on the evidence of the expert on tlle side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 red and need not cover the distance which it did, the Claim Tribunal\n\nalso found tllat the' defect which tlle defence witness, Motor Vehicle Illspector J>artapsingh Chavan, D.W.I. saw when he examined the\n\n890 SuI'REJ\\JE COURT REPORTS [ l 977] 2 s.c."}}, {"text": "22nd April, 1969", "label": "DATE", "start_char": 14523, "end_char": 14539, "source": "ner", "metadata": {"in_sentence": "R.\n\nA lorry on 22nd April, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on 22nd April, 1969."}}, {"text": "Malati M. D\"5hmukh", "label": "RESPONDENT", "start_char": 14982, "end_char": 15000, "source": "ner", "metadata": {"in_sentence": "500 which was found payable to Malati M. D\"5hmukh who had sustained injuries.", "canonical_name": "Mala ti - M. Deshmukh"}}, {"text": "Balkrishna Ramachandra Nayan", "label": "RESPONDENT", "start_char": 15143, "end_char": 15171, "source": "ner", "metadata": {"in_sentence": "The Claims Tribunal directed the owners as well as the insurers jointly to pay the amount, to the respondent Dr. Balkrishna Ramachandra Nayan.", "canonical_name": "BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER"}}, {"text": "Malati M. Deshmukh", "label": "RESPONDENT", "start_char": 15274, "end_char": 15292, "source": "ner", "metadata": {"in_sentence": "100 as costs of Malati M. Deshmukh.", "canonical_name": "Mala ti - M. Deshmukh"}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 15969, "end_char": 15989, "source": "ner", "metadata": {"in_sentence": "449 .of 1975 before the High Court of Bombay."}}, {"text": "section 11", "label": "PROVISION", "start_char": 18463, "end_char": 18473, "source": "regex", "metadata": {"statute": null}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 19078, "end_char": 19085, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman, the learned counsel appearing for the owners submitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry a, nd therefore the question will have to be gone into by this Court or remanded for fresh disposal."}}, {"text": "Jawakar", "label": "WITNESS", "start_char": 20128, "end_char": 20135, "source": "ner", "metadata": {"in_sentence": "We accept the testimony of the doctor and D.W. 4 Jawakar that the lorry crossed the Toad dividers, ran into the wrong side and hit the car which was driven by the applicant."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 28749, "end_char": 28774, "source": "ner", "metadata": {"in_sentence": "We find that a Bench of the Andhra Pradesh High Court has held in Haji Zakaria and Others v. Naoshir Cama and others (1) that the liability of the insured and consequently of the insurer to compensate a third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury etc."}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 29322, "end_char": 29340, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "England", "label": "GPE", "start_char": 29960, "end_char": 29967, "source": "ner", "metadata": {"in_sentence": "In England the owners of the vehicle voluntarily insured against the risk of injury to other road users."}}, {"text": "order to meet this contingency the Road Trame Act, 1930", "label": "STATUTE", "start_char": 30275, "end_char": 30330, "source": "regex", "metadata": {}}, {"text": "Road Traffic Act 1934", "label": "STATUTE", "start_char": 30394, "end_char": 30415, "source": "regex", "metadata": {}}, {"text": "Road Traffic Act, 1930", "label": "STATUTE", "start_char": 30491, "end_char": 30513, "source": "regex", "metadata": {}}, {"text": "Chapter VIII of the Act", "label": "STATUTE", "start_char": 31044, "end_char": 31067, "source": "regex", "metadata": {}}, {"text": "Road Traffic Act, 1940", "label": "STATUTE", "start_char": 31200, "end_char": 31222, "source": "regex", "metadata": {}}, {"text": "Road Traffic Act, 1934", "label": "STATUTE", "start_char": 31285, "end_char": 31307, "source": "regex", "metadata": {}}, {"text": "Section 94", "label": "PROVISION", "start_char": 32781, "end_char": 32791, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 95", "label": "PROVISION", "start_char": 33127, "end_char": 33137, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 95", "label": "PROVISION", "start_char": 33241, "end_char": 33251, "source": "regex", "metadata": {"statute": null}}, {"text": "section 108", "label": "PROVISION", "start_char": 33530, "end_char": 33541, "source": "regex", "metadata": {"statute": null}}, {"text": "section 95", "label": "PROVISION", "start_char": 34106, "end_char": 34116, "source": "regex", "metadata": {"statute": null}}, {"text": "section 95(1)", "label": "PROVISION", "start_char": 35470, "end_char": 35483, "source": "regex", "metadata": {"statute": null}}, {"text": "section 95", "label": "PROVISION", "start_char": 35701, "end_char": 35711, "source": "regex", "metadata": {"statute": null}}, {"text": "section 95", "label": "PROVISION", "start_char": 36044, "end_char": 36054, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 96", "label": "PROVISION", "start_char": 36725, "end_char": 36735, "source": "regex", "metadata": {"statute": null}}, {"text": "Hattangodi", "label": "OTHER_PERSON", "start_char": 37153, "end_char": 37163, "source": "ner", "metadata": {"in_sentence": "The main contention of Mr. Hattangodi, who supported the view of the High Court that negligence -need not be proved is that Chapter VIII of th_e."}}, {"text": "section 11", "label": "PROVISION", "start_char": 37822, "end_char": 37832, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 110(1)", "label": "PROVISION", "start_char": 39360, "end_char": 39374, "source": "regex", "metadata": {"statute": null}}, {"text": "Vaidya", "label": "JUDGE", "start_char": 42765, "end_char": 42771, "source": "ner", "metadata": {"in_sentence": "Justice Vaidya in thi.s iudgment under appeal after referring to various deisions expressed his view as follows :-\n\n\"It is not necessary to discuss all these cases because, in any view, in none of those cases was the question agitated\n\nMINU B. MEHTA v. B. R. NA\"._AN (Kai/asam, J.)\n\nas to what exactly was meant by tort in the context of automobile accidents and injuries resulting therefrom, for which\n\nmore often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century."}}, {"text": "Mridul", "label": "JUDGE", "start_char": 44201, "end_char": 44207, "source": "ner", "metadata": {"in_sentence": "judgment Justice Mridul has expressed himself in the same tenor."}}, {"text": "section 95", "label": "PROVISION", "start_char": 44286, "end_char": 44296, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VIII of the Act", "label": "STATUTE", "start_char": 44989, "end_char": 45012, "source": "regex", "metadata": {}}, {"text": "Patna High Court", "label": "COURT", "start_char": 45961, "end_char": 45977, "source": "ner", "metadata": {"in_sentence": "..\n\nThe Patna High Court in New India Assurance Co. Ltd. v. Sumant Devi and Others(') held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 46759, "end_char": 46776, "source": "ner", "metadata": {"in_sentence": "Consistent with this line of thinking is the judgment of the Kerala High Court in Kesavall Nair v. State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus : \"Out of a sense of humanity and having due regard to the handicap of the innocent v-ictim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.\""}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 46839, "end_char": 46851, "source": "ner", "metadata": {"in_sentence": "Consistent with this line of thinking is the judgment of the Kerala High Court in Kesavall Nair v. State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus : \"Out of a sense of humanity and having due regard to the handicap of the innocent v-ictim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurers.\""}}, {"text": "section 95", "label": "PROVISION", "start_char": 47194, "end_char": 47204, "source": "regex", "metadata": {"statute": null}}, {"text": "13th December, 1976", "label": "DATE", "start_char": 47530, "end_char": 47549, "source": "ner", "metadata": {"in_sentence": "607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj and others, delivered on 13th December, 1976, has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to a limited extent say Rs."}}, {"text": "Cl. 5", "label": "PROVISION", "start_char": 48618, "end_char": 48623, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_901_903_EN", "year": 1977, "text": "NARPAL SINGH & OTHERS\n\nSTATE OF HARYANA\n\nFebruary 1, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]\n\nSentence-Rig/it to be heard by the accused on the question of selllence and the duty of the court to pass a sentence after cJtrviction-Code of Criminal Procedure (Act 2 of 1974), 1973-Section 235(2)-De novo trial 1101 necessary in such cases 011 the question of convictions.\n\nAppellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under s. 302 I.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under s. 302 but sentenced to imprisonment C for life by the Sessions Judge. The High Court upheld the convictions as also the sentences while accepting the reference under s. 366 made by the Sessions Judge and dismissing the appeals by the accused.\n\nOn appeal by special leave, the appellants contended inter alia, that the sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately.\n\nDismissing the appeals of Devinder Singh irnd Maha Singh and partly allowing the appeals of the other three appellants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their caes to the trial Court for passing sentences on them afresh under s. 235(2) of the Criminal Procedure Code. The Court\n\nHELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a, ppellants, Narpa\\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca, se cannot be sustained.\n\nSince Devinder Singh and Maha Singh have already been given sentences of life imprisonment which is the minimum sentence that could be\n\npased under s. 302, remelting their cases to the Sessions Judge was not necessary. (902 F-G, 903 EJ\n\nfjanta Singh v. State of Punjab [1977] 1 S.C.R. 229, reiterated.\n\n(2) When a case is remitted by this Court to the SeS!lions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure 1973, there. would be fresh evidence and the principle that the\n\n\ncircumstances of the present case or to cases where the trial has ended in a G conviction but the matter has been remitted to the trial Court for hearing the case only on the question of sentence. [903 A-DJ ·\n\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 149 of 1976.\n\nAppeal by Special Leave from the Judgment and Order dated H 19-7-1975 of the Punjab & Haryana High Court in Criminal Appeal No. 1205 of 1974 and Murder Reference No. 60 of 1974.\n\nSUPREME COURT REPORTS\n\n[1977] 2 $.C.R~\n\nFrank Anthony, Harbans Singh and Harjender Singh for Appellants Nos. 1, 2 and 4.\n\nA. N. Mu/la, and Harbans Singh for Appellants Nos. 3 and 5.\n\nR. L. Kohli for the Respondent.\n\nThe *Judgment of the Court was delivered by\n\nFAZAL Au, J.-Atfer having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the reasons that we have alreaay given, we are fully satisfied and convinced that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appellants were rightly convicted by the Sessions Judge anCl the High Court.\n\nThis, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after de\\jvering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately.\n\nIn Santa Singh v. State of Punjab(') this Court has taken the view view that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accmed on the question of sentence and give him an opportunity to lead evidence which may also be allowed to be rebutted by the prosecution.\n\nThis procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirined by us and will not be reopened under any circumstance whatsoever.\n\nCounsel for the State has drawn our attention to the fact that irr some cases the accused have raised the question that once the case is remitted to the Sessions Judge, then the accused is entitled to claim a de nova trial on the question of conviction also.\n\nIn this connection, reliance was placed on Pyare Lal v. State of Pwzjab( 2). In the first place, this case was based on an interpretation of ss. 251 to 259 of the Code of Crimina~ Procedure, 1898, and the reason why this Court held that the proceedings by a sucssor Judge cannot be started from the stage left out by his predecessor was that a Judge who had heard the whole of t)le evidence before had the advantage of watching the demeanour of the witnesses which would be lost if the successor Judge was to proceetl from the stage left by his predecessor.\n\nIt is true that under s. 326 of the Code of Criminaj Proce-\n\n*Only pages 33 to 36 of the Judgment are reported as per directions of the Court\n\n(I) [1976] s.c.c. 190.\n\n\nNARPAL SINGH v. HARYANA (Fazal Ali, J.) 903\n\ndure, 1973, there is discretion given to the successor Magistrate t\\)\n\nact on the evidence already recorded and not to hold a de nova trial and no such provision is made in case of a trial by the Sessions Judge or a Special Judge.\n\nThe ratio of Pyare Lal's case (supra), however, is not applicable to the present case.\n\nOnce the Judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end. The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under s. 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before bis predecessor •. and must conduct a de nova trial would not be violated.\n\nIn these circumstances, therefore, the ratio of Pyare Lal' s case mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on, the question of sentence.\n\nSo far as the case of Devinder Singh and Maha Singh are cqncerned as they have already been given sentences of life imprison- Ililent and this is the minimum sentence that could be passed under D s. 302 I.P.C. it is not necessary to remit their cases to th~ Sessions Judge.\n\nThe convictions and sentences of these two accused are, therefore, confirmed and their appeals are dismissed.\n\nAs regards the appeals by the three other appellants, namely, Narpal Singh, Jagmohan Singh and Gurdev Singh, we confirm their convictions which would not be reopened under any circumstances, but set aside the sentence of death passed on them and remit their cases to the E Trial Court for passing sentences on them afresh after hearing the accused in the light of the observations made by 'Us and lo this extent only the appeals of the three appellants are allowed so far as their J>entences are concerned.\n\nS.R.\n\nAppeals partly allowed.", "total_entities": 38, "entities": [{"text": "NARPAL SINGH & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "NARPAL SINGH & OTHERS", "offset_not_found": false}}, {"text": "STATE OF HARYANA", "label": "RESPONDENT", "start_char": 23, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA", "offset_not_found": false}}, {"text": "February 1, 1977", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "NARPAL SINGH & OTHERS\n\nSTATE OF HARYANA\n\nFebruary 1, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 60, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 79, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 242, "end_char": 268, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 235(2)", "label": "PROVISION", "start_char": 291, "end_char": 305, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 461, "end_char": 467, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 468, "end_char": 473, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 571, "end_char": 577, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 366", "label": "PROVISION", "start_char": 738, "end_char": 744, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Devinder Singh", "label": "OTHER_PERSON", "start_char": 1114, "end_char": 1128, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeals of Devinder Singh irnd Maha Singh and partly allowing the appeals of the other three appellants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their caes to the trial Court for passing sentences on them afresh under s. 235(2) of the Criminal Procedure Code."}}, {"text": "Maha Singh", "label": "OTHER_PERSON", "start_char": 1134, "end_char": 1144, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeals of Devinder Singh irnd Maha Singh and partly allowing the appeals of the other three appellants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their caes to the trial Court for passing sentences on them afresh under s. 235(2) of the Criminal Procedure Code."}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 1380, "end_char": 1389, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 1556, "end_char": 1565, "source": "regex", "metadata": {"statute": null}}, {"text": "Narpa\\ Singh", "label": "PETITIONER", "start_char": 1660, "end_char": 1672, "source": "ner", "metadata": {"in_sentence": "The Court\n\nHELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a, ppellants, Narpa\\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca, se cannot be sustained.", "canonical_name": "NARPAL SINGH & OTHERS"}}, {"text": "Gurdev Singh", "label": "OTHER_PERSON", "start_char": 1674, "end_char": 1686, "source": "ner", "metadata": {"in_sentence": "The Court\n\nHELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a, ppellants, Narpa\\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca, se cannot be sustained."}}, {"text": "Jagmohan Singh", "label": "OTHER_PERSON", "start_char": 1691, "end_char": 1705, "source": "ner", "metadata": {"in_sentence": "The Court\n\nHELD : (1) Though the commitment inquir.y was held under the Code of E Criminal Procedure, 1973, since the procedure under s. 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the a, ppellants, Narpa\\ Singh, Gurdev Singh and Jagmohan Singh in the instant ca, se cannot be sustained."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1898, "end_char": 1904, "source": "regex", "metadata": {"statute": null}}, {"text": "[1977] 1 S.C.R. 229", "label": "CASE_CITATION", "start_char": 2019, "end_char": 2038, "source": "regex", "metadata": {}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 2173, "end_char": 2182, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure 1973", "label": "STATUTE", "start_char": 2190, "end_char": 2221, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Frank Anthony", "label": "LAWYER", "start_char": 2781, "end_char": 2794, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1977] 2 $.C.R~\n\nFrank Anthony, Harbans Singh and Harjender Singh for Appellants Nos."}}, {"text": "Harbans Singh", "label": "LAWYER", "start_char": 2796, "end_char": 2809, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1977] 2 $.C.R~\n\nFrank Anthony, Harbans Singh and Harjender Singh for Appellants Nos."}}, {"text": "Harjender Singh", "label": "LAWYER", "start_char": 2814, "end_char": 2829, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1977] 2 $.C.R~\n\nFrank Anthony, Harbans Singh and Harjender Singh for Appellants Nos."}}, {"text": "A. N. Mu", "label": "LAWYER", "start_char": 2863, "end_char": 2871, "source": "ner", "metadata": {"in_sentence": "A. N. Mu/la, and Harbans Singh for Appellants Nos."}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 2924, "end_char": 2935, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli for the Respondent."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 3002, "end_char": 3010, "source": "ner", "metadata": {"in_sentence": "The *Judgment of the Court was delivered by\n\nFAZAL Au, J.-Atfer having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the reasons that we have alreaay given, we are fully satisfied and convinced that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appellants were rightly convicted by the Sessions Judge anCl the High Court."}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 3543, "end_char": 3575, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 3849, "end_char": 3881, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Narpal Singh", "label": "PETITIONER", "start_char": 4260, "end_char": 4272, "source": "ner", "metadata": {"in_sentence": "This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirined by us and will not be reopened under any circumstance whatsoever.", "canonical_name": "NARPAL SINGH & OTHERS"}}, {"text": "ss. 251 to 259", "label": "PROVISION", "start_char": 4856, "end_char": 4870, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "s. 326", "label": "PROVISION", "start_char": 5296, "end_char": 5302, "source": "regex", "metadata": {"statute": null}}, {"text": "Pyare Lal", "label": "OTHER_PERSON", "start_char": 5732, "end_char": 5741, "source": "ner", "metadata": {"in_sentence": "The ratio of Pyare Lal's case (supra), however, is not applicable to the present case."}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 6135, "end_char": 6144, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 6152, "end_char": 6184, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 6907, "end_char": 6913, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6914, "end_char": 6919, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1977_2_904_910_EN", "year": 1977, "text": "CHAIRMAN, BOARD OF MINING EXAMINATION &\n\nANOTHER\n\nRAM JEE\n\nFebruary 3, 1977\n\n[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]\n\nCoal Mines Regulations-Regulation 26-lnterpretation of.\n\nRules of natural justice-Concept of reasonably opportunity cannot be fitted into a rigid 111011/d-Need for a strict liability-Code for subterranean occupa __, lions.\n\nUnder regulation 26(1) if, in the opm1on of the Regional Inspector, a person to whom an Overman's, Sirdar's, Engine-driver's, Shot-firer's, or Gastesting Certificate bas been granted is incompetent or is guilty of negligence or misconduct in the performance of his duties, he may, after giving th<' person an opportunity to give a written explanation, suspend his certificate by an order in writing. U/r 26(2) he shall within a week of such suspension report the fact to the Board together with all connected papen; including the explanation, if any received from the person concerned. U/r 26(3) the Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspension of the certificate, or cancel the certificate.\n\nThe respondent, a shot-firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which resulted .in an accident injuring one Bhadu.\n\nThe Regional Inspector u/r 26(1) gave him an opportunity for an explanation in writing and after considering the materials before him forwarded the papers to the Chairman of the Board together with a recommendation for cancellatll)n ef. the certificate under Regulation 26(3 ).\n\nThe Board bestowed its judgment on !he materials gathered which included the delinquent's admission, and cancelled the shot-firing certificate. The High Court allowed the writ petition assai.ling the said orders of cancellation of the licence and held : (1) The Board had no jurisdiction since the Regional Inspector did not suspend the certificate first before reporting (2) The Regional Inspector had no power to recomme.n_d but only to report and so the Board's order influenced by the recommendation was bad in law and (iii) the Board should have given a fresh opportunity to be -?--- hcanl before cancellation of the certificate and its absence violated nau:.ral ' justice, voiding the order.\n\nAccepting the Court,\n\nHELD : (1) Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment a~ 'social engineering' depends on its scrutinized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations.\n\nF1:agmentary grasp of rules ca•n misfire or even backfire, as in this case. [906 H, 907 A]\n\n(2) The judicial key to construction is the composite perception of the daha and the dalli of the provision. To be literal in meaning is to see the skin and miss the soul of the Regulation. [909 A-BJ\n\n(3) Over-judicialisation can be subversive of the justice of the law. To invalidate the Board's order because the Regional Inspector did not suspend the certificate is a fallacy.· Tbe Board's vower is independent and is ignited by\n\n' 1\n\nCHAIRMAN, BOARD OF MINING v. RAMJEE (Krishna Iyer, !.) 905\n\n!he report, which. exists in this case, of the Regional Inspector. There is an A overall duty of oversight vested in the board to enforce observance of mies of safety. [909 DJ\n\n( <:) To set aside the order on ihe ground that the Regional Inspector had no power to recommend but only to S!'Spend and report that his recommenda\n\nlion influenced the Board's order is to enthrone a processual nicety do dcihrone plain justice. Suspension, on a-n enquiry, predicates a prior prima-facie finding\n\nof guilt and to make that known to the Board implicitly conveys a recommen- B dation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.\n\nRecommendations are not binding but are merely raw materials for consideration.\n\nWhere there is no surrender of judgement by the Board to the recommending Regional\n\nInspector, there is no contravention of the cannons of natural justice.\n\n[909 E-F, 9100-E]\n\n( 5) Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the ma11 proceeded against, the form features and the fundamentals of such essential processual\n\npropriety being conditioned by the facts and circumstances of each situation, no breach of natural justice caa be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.\n\nCourts cannot look at law in the abtract or natural justice as a mere artifact.\n\nNor can they fit into a rigid mould the concept of reasonable opportunity.\n\nIf the totality of circumstances satisfies the Court that the party v.isited wilh D adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. In the instant case, the Board cannot be anathematised as condemning the man without being heard. The respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board.\n\nHe . has thus been heard and compliance with Regulation 26 in the circumstances is complete. [909 G-H, 910 A-G]\n\nTereaesai's case (1970] 1 S.C.R. 251; Management of DTU [1973] 2 S.C.R.\n\nE. 114; Tandon's case f!9741 4 SCC 374 referred to.\n\nObservations ; Sensitive occupations demand stern juristic principles to reach at sc&pegraces, high and low, and not mere long drawn-out commissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management. Any sensitive jurisprudence of colliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro-consideratiom-of responsibility to the community. The Board must quit, as a legal penalty, if any dreadful deviation. deficiency, default or negligence anywhere in the mine occurs.\n\nThis is a good case for new principles of liability, based on wider rules of sociological jurisprudence to tighten up the law of omission and commission at the highest levels.\n\nResponsibility and penalty must be the concomitants of highly-paid power vested in the top-brass. Any deviance on the part of these high-powered authorities must be visited with tortious or criminnl liabilities. f908 F-H. 907 D-Fl\n\n(The Court emohasised the need for evolving a code of strict liability G calling to utmost care not only the crowd of workers and others but the few who shall care or quit so that subterranean occupations necessary for the nation are made as risk-proof a-s technology and human vigilance pefmit).\n\nCrvIL APPELLATE JURISDICTION : Civil Appeal No. 2294 of 1968.\n\nAppeal from the Judgment and Order dated 25-9-1967 of the Madhya Pradesh High Court in Misc. Petition No. 595 /66.\n\nL. N. Sinha, Sol. Gen!, B. Datta and Girish Chandra for the Appellants.\n\nSUPREME COURT REPORTS\n\nS. K. Gambhir, amicus curiae, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\n[1977] 2 s.c.R.\n\nKRISHNA IYER, J.-If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court.\n\nJudges must never forget that every Jaw has a social purpose and engineering process without appreciating which justice to the law cannot be done.\n\nHere, the socio-legal situation we are faced with is a colliery, an explosive, an accident, luckily not lcthl, caused by viobtion of a regulation and consequential cancellation of the certificate of the delinquent shot-firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari.\n\nWe may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrong1y laid down by the High Court .. were set aside and declared a right and he was not insisting on the formal reversal of the order affecting the respondent (who 1s unrepresented D before us). We proceed on that footing.\n\nThe few necessary facts may be narrated to bring up the legal issue in its real setting.\n\nThe respondent was a shot-firer in a colliery and being a risky, technical job, had to possess a certificate for it.\n\nHe handed ever an explosive to an unskilled hnd who fired it, an accident occurred and one Bhadu, employed in the mine, was injµred.\n\nThe Regional Inspector of Mines immediately enquired into the cause of the accident and found, on the respondent's virtual admission, qualified by some prevarication, that the shots were fired not by himself but by a cutter, an unauthorised person for shot-firing to whom the respondent had wrongfully entrusted the work.\n\nThereby he contravened the relevant Coal Mines Regulations.\n\nThe Regional Inspector gave him an opportunity for explanation and, after considering the materials before him, forwarded the papers to the Chairman of the Board together 1with a recommendation for cancellation of the certificate under Reg. 26.\n\nThe Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, whicb included the delinquent's admission, and cancelled the shot-firing certificate.\n\nThe said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26.\n\nWas Regulation 26, in the context and setting of the Mines Act, misinterpreted by the High. Court at all?\n\nThis is the short question canvassed before us.\n\nW<e permit ourselves a few observations which II serve as perspective-setters.\n\nLaw is meant to serve the living and does not beat its abstract wings in the jural void.\n\nIts functional fulfilment as social engineering depends or its sensitized response to situation, subject-matter and the complex of realities which require\n\n' •\n\n~. •\n\n• •\n\n9,07 \"'\n\n<irdered control.\n\nA holistic , understanding is simple justice to th~ meaniqg,.of all ; legi, slatfo!ls: :fagffienary grasp of rules can misfire or even backfire,' as in this case. It is a - notorious fact that <:ollieiieis--:fodian collieries, both before . and after ' nationalisation- . are strategic sources' of the natiqn's e( itP, d, oper, ati\\}nally, areas of tragic human hazards.\n\nWe need coal, we want miners to bring it from the ~O\\V.els of the earth.\n\nThe da1rnerous te\".hnology is not yet so perfect in India as to ensure risk-free extraction.\n\nAnd, after many lives have been lq_st.by tge _qeglect of operatives or .supervisors or supine bosses, follows the scenario of tears and tom-down homes, a little monetary compensation, a flutter in Parliament, a longdrawn-out Commission, a routine Report about lapses and recipes and the little man's .life-or death lot continuing to receive callous\n\nonsi<leration at the hands of the law, law-matter, law-enforcer-this sombre colliery disaster .sequence must educate and inform the jurispru_dence of hlgh-rislq operations. In short, the M1nes Act (and Regulations) i'!iust receive its judicial construction in the total setting, teleclogically approached, not fragmentarily dissected.\n\nThe relevant regulation is only a tiny inset in the farger justice of the statute.\n\nThe Mines Act has a scheme designed to avoid accidents and .ensure safety.\n\nA system of certificates, supervisions and penalties is part of this scheme.\n\nThe broad responsibility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on' the lesser men.\n\nAny sensitive jurisprudence of colliery maI)agement must make it cardinal to .punish the Board yicariously for any major violations and dreadful disasters, on macro-considerations of responsibility to the community.\n\nThe Board must quit; as , a , legal penalty, if any dreadful deviation, deficiency, default or negl_igence anywhere in the mine occurs.\n\nIn the present case a microbreach is peii:g .punished, but when major mishaps occur the top echelons, on account of inadequacies in colliery codes, escape and make others the scapego, ats.\n\nAlthough, in this case, only injury, not death, has occurred, there is a good case for new principles ot . !ability, based on wider rules of sociological jurisprudence, to tighten up the law of omission and commission, at the highest .levels.\n\nResponsibility and penalty must be the concomitants of\n\nhighlypaid power v.ested in the top-brass. ·\n\n.Back to .th~ pe<lestrjan statement of, facts.\n\nThe rspondent's {:_unous contention, accepted by the learned Judge, is best understood after reaig Regulation 26 :\n\n\"26. Suspension of an Overman's, Sirdar's, Engine- .\n\nDriver's, shot-firer's, or Gas-testing Certificate-\n\n(l) If, .in , the opinion of the Regional Inspector, a person to whom an Overman's, . Sirdar's, Engine-driver's,\n\nhot-firer'_s, or Gas-esting Certificate has been granted is mcompetent or is guilty of negligence or misconduct in the\n\n.prormance of.his duties, the Regional Inspector may, after\n\nvmg the person an opportunity to give a written explanation, suspend his certificate by an order in writing.\n\n10-206SCT /77\n\n968 SUPREME COU!tT ll.EPORTS [1977] 2 s.C.R.\n\n(2) Where the Regional Inspector has suspended a certificate under sub-regulation (1) he shall writhin a week of such suspension report the fact to the Board together with all connected papers including the explanation if any received from the person concerned.\n\n(3) The Board may, after such inquiry as it thinks fit, either confirm or modify or reduce the period of suspem; ion of the certificate, or cancel the certificate.\"\n\nThe plain purpose of the regulation is to pre-empt further harm by suspending the certificate of the shot-firer 'if in the opinion of the Regional Inspector' he 'is incompetent or is guilty of negligence or misconduct in the performance of his duties ... after giving the P'rson C an opportunity to give a written explanation'.\n\nThis suspension is itself a punishment liable to confirmation, modification, reduction of the period of suspension or, by way of enhancement, cancellation ot the certificate by the Board.\n\nBefore taking such action by way ot cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes 'such enquiry as it thinks fit'.\n\nIn the present case, the Board had an explanation D (styled an appeal) from the repondent, and also a recommendation by the Regional Inspector for cancellation of the certificate.\n\nThe latter had not suspended the delinquent but had merely held an enquiry, reached the prima facie view .of guilt and and instead of suspension at once, only made a recommendation to the Board for cancellation.\n\nThe Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries (see sections 7 & 14). He has to report to the Board on breaches of regulations and conditions.\n\nThe Board, in its turn, has the over-all charge of the safe management o:E the mine.\n\nDerelictions and violations must reach its vigilant eye! and be viiited with prompt action.\n\nJurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely miihaps and introduction of' the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama.\n\nAny deviance on the part of these high-powered authoriti1!s must be visited with tortious or criminal liability.\n\nSuch is the price which high position must pay for the consequences of calamitous failures.\n\nSensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and not mere long-grown-out 1:ommissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management.\n\nWe emphasize this matter to awaken the law-makers to evolve a code of strict liability calling to utmost care not only the crowd of workers an:! others but the few who \"shall care or quit so that subterranean occupations necessary for the nation are made as risk-proof as technology and human vigilance permit.\n\nCHAllU..tAN, BOARD OP MINING v. llAMJEE (Krishna lyl!r, !.) 909\n\nUnfortunatly, the High Court surren?ered to n.arowness ot interpretation of Regulation 26 by acceptmg the subm1ss1on of t?e respondent.\n\nTo be literal in meaning is to see the skin and miss the soul of the Regulation.\n\nThe judicial key to construction is the . composite perception of th~ deha and the dehi of the provision.\n\nSo viewed, Reg. 26 is easy of comprehension.\n\nThe High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable.\n\nThe argument nms thus.\n\nWithout first suspending the certificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter.\n\nSince the Regional Inspector did not suspend the respondent, the Board had no jurisdiction.\n\nSecondly, the Regional Inspector had no power to recomml!nd, but only to report and so the Board's order, influenced by the recommendation, was bad in law.\n\nThirdly, the lloard should have given a fresh opportunity. to be heard before cancellation of the certificate and its absence in the present case violated natural justice, voiding the order.\n\nAll the three points serve to warn the courts how over-judicialisation can be subversive of the justice of the. law.\n\nNow, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Board's power is independent and is ignited by the report of the Regional Inspector.\n\nSuch a report exists here.\n\nThere is an overall duty of over sight vested iR the Board to enforce observance of rules of safety.\n\nTo invalidate the Board's order because. the Regional Inspector did not suspend the certificate is a fallacy.\n\nNow to the next point.\n\nThe vice that vitiates the Board's order is stated to be the recommendation contained in the Regional Inspector's report.\n\nHad he suspended and reported, he would have been\n\nin order.\n\nBut suspension, on an enquiry, predicates , a prior prima facie finding of guilt and to make that known to the Board imphcity conveys a recommendation.\n\nThe difference between suspension plus F report and recommendatory report is little more than between Tweedledum and Tweedledee.\n\nAnd to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice.\n\nThe last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one Jone by the Regional Inspector.\n\nAssmning it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chainnan of the Board.\n\nHe has thus been heard and compfonce with Reg. 26, in the circumstances, is complete.\n\nNatural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation no breach of natural justice can be complained of. Unnatural expnsion\n\n910 1lUPR, EME COURT REPORTS [1977] 2 s.c.R ..\n\nA of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.\n\nWe can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.\n\nNo man shall be hit below the belt-that is the conscience of the matter.\n\nShri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion. It is true that in the context of Art. 311 of the Constitution this Court :as interpreted the quality and amplitude of the opportunity to be extended to an affected public servant.\n\nCertainly we agree with the principles expounded therein.\n\nBut then 'we cannot look at law in the abstract or natural iustice as a mere artifact. Nor can we fit into a rig; id mould c . the concept of reasonable opportunity.\n\nShri Gambhir cited before us the decisions in Teredesai('); Management of DTU(2 ) and Tandon( 3); and one or two other rulings.\n\nThe ratio theNin hardly militates against the realism which must inform 'reasonable opportunity' or the rule against bias. If the authority which take:; th1! final decision acts mechanically and without applying its own mind, the\n\norder may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion vJhich tallies with the recommendations of the subordinate authority whch held the preliminary enquiry, there is no error in law.\n\nRecommendations are not binding but are merely raw material for consideration.\n\nWhere there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice.\n\nWe agree with Shri Gambhir that the adjudicating agency must indicate in the order, at least briefly, why it takes the decision it does unless the circumstances are so clear that the concluding or decretal part of the order speaks for ito, elf even regarding the reasons which have led to it. It is desiratie also to ccmmunicate the report of the Inquiry Officer, including that part which relates to the recommendation in the matter of punishment, so that the repre- 8entation of the delinquent may be pointed and meaningful.\n\nThese general observations must be tested on the concrete facts of each case and every miniscule violation does not spe:tl illegality.\n\nIf the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.\n\nWe are satisfied that the order of the Board cannot be anathematised as condemning the man without being heard.\n\nThe appeal, on the point of law, must be allowed but, in the light of the conc€ssion made, as stated earlier, we leave the formal order of the High Court undisturbed. No costs.\n\nS.R.\n\nHigh Court orders maintained. <ll [1970J 1 s.c.R. 2s1.\n\n(2) [1973] 2. s.c.R. 114.\n\n(3) [1974] 4 s.c.c. 374.", "total_entities": 28, "entities": [{"text": "CHAIRMAN, BOARD OF MINING EXAMINATION &\n\nANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "CHAIRMAN, BOARD OF MINING EXAMINATION & ANOTHER", "offset_not_found": false}}, {"text": "February 3, 1977", "label": "DATE", "start_char": 59, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "CHAIRMAN, BOARD OF MINING EXAMINATION &\n\nANOTHER\n\nRAM JEE\n\nFebruary 3, 1977\n\n[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 78, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Coal Mines Regulations", "label": "STATUTE", "start_char": 120, "end_char": 142, "source": "regex", "metadata": {}}, {"text": "Bhadu", "label": "OTHER_PERSON", "start_char": 1308, "end_char": 1313, "source": "ner", "metadata": {"in_sentence": "The respondent, a shot-firer in a colliery, violated the provisions of the Coal Mines Regulations by entrusting his risky, technical work to an unauthorised person which resulted .in an accident injuring one Bhadu."}}, {"text": "RAMJEE", "label": "RESPONDENT", "start_char": 3230, "end_char": 3236, "source": "metadata", "metadata": {"canonical_name": "RAMJEE", "offset_not_found": true}}, {"text": "Tweedledum", "label": "OTHER_PERSON", "start_char": 3938, "end_char": 3948, "source": "ner", "metadata": {"in_sentence": "The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.", "canonical_name": "Tweedledum"}}, {"text": "Tweedledee", "label": "OTHER_PERSON", "start_char": 3953, "end_char": 3963, "source": "ner", "metadata": {"in_sentence": "The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee.", "canonical_name": "Tweedledum"}}, {"text": "Tereaesai", "label": "OTHER_PERSON", "start_char": 5507, "end_char": 5516, "source": "ner", "metadata": {"in_sentence": "909 G-H, 910 A-G]\n\nTereaesai's case (1970] 1 S.C.R. 251; Management of DTU [1973] 2 S.C.R.\n\nE. 114; Tandon's case f!9741 4 SCC 374 referred to."}}, {"text": "(1970] 1 S.C.R. 251", "label": "CASE_CITATION", "start_char": 5524, "end_char": 5543, "source": "regex", "metadata": {}}, {"text": "Tandon", "label": "OTHER_PERSON", "start_char": 5588, "end_char": 5594, "source": "ner", "metadata": {"in_sentence": "909 G-H, 910 A-G]\n\nTereaesai's case (1970] 1 S.C.R. 251; Management of DTU [1973] 2 S.C.R.\n\nE. 114; Tandon's case f!9741 4 SCC 374 referred to."}}, {"text": "Parliament", "label": "ORG", "start_char": 5848, "end_char": 5858, "source": "ner", "metadata": {"in_sentence": "Observations ; Sensitive occupations demand stern juristic principles to reach at sc&pegraces, high and low, and not mere long drawn-out commissions whose verdicts often prove dilatory 'shelter' for the men in whom Parliament has entrusted plenary management."}}, {"text": "L. N. Sinha", "label": "PETITIONER", "start_char": 7124, "end_char": 7135, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 7148, "end_char": 7156, "source": "ner", "metadata": {"in_sentence": "B. Datta and Girish Chandra for the Appellants."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 7161, "end_char": 7175, "source": "ner", "metadata": {"in_sentence": "B. Datta and Girish Chandra for the Appellants."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 7220, "end_char": 7233, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nS. K. Gambhir, amicus curiae, for the Respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 7332, "end_char": 7344, "source": "ner", "metadata": {"in_sentence": "R.\n\nKRISHNA IYER, J.-If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would not have ended the erroneous way it did in the High Court."}}, {"text": "Thereby he contravened the relevant Coal Mines Regulations", "label": "STATUTE", "start_char": 9066, "end_char": 9124, "source": "regex", "metadata": {}}, {"text": "Mines Act", "label": "STATUTE", "start_char": 9712, "end_char": 9721, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mines Act", "label": "STATUTE", "start_char": 11499, "end_char": 11508, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Suspension of an Overman's, Sirdar's, Engine- .\n\nDriver's, shot-firer's, or Gas-testing Certificate-", "label": "RESPONDENT", "start_char": 12850, "end_char": 12950, "source": "ner", "metadata": {"in_sentence": "Suspension of an Overman's, Sirdar's, Engine- ."}}, {"text": "sections 7 & 14", "label": "PROVISION", "start_char": 15084, "end_char": 15099, "source": "regex", "metadata": {"statute": null}}, {"text": "Yama", "label": "OTHER_PERSON", "start_char": 15733, "end_char": 15737, "source": "ner", "metadata": {"in_sentence": "Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate not to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely miihaps and introduction of' the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama."}}, {"text": "Jone", "label": "OTHER_PERSON", "start_char": 19007, "end_char": 19011, "source": "ner", "metadata": {"in_sentence": "The last violation regarded as a lethal objection is that Board did not enquire of the respondent, independently of the one Jone by the Regional Inspector."}}, {"text": "Gambir", "label": "OTHER_PERSON", "start_char": 20028, "end_char": 20034, "source": "ner", "metadata": {"in_sentence": "Shri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, could not convince us to reach a contrary conclusion.", "canonical_name": "Gambhir"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 20245, "end_char": 20253, "source": "regex", "metadata": {"statute": null}}, {"text": "Gambhir", "label": "OTHER_PERSON", "start_char": 20624, "end_char": 20631, "source": "ner", "metadata": {"in_sentence": "Shri Gambhir cited before us the decisions in Teredesai('); Management of DTU(2 ) and Tandon( 3); and one or two other rulings.", "canonical_name": "Gambhir"}}]}
{"document_id": "1977_2_911_914_EN", "year": 1977, "text": "PRABHAT K1RAN MAlTHANl & ORS.\n\nUNION OF 1NDIA & A.Nll.\n\nFebruary 3, 1977\n\n[M. H. BEG, C.J. AND P. s. KAILASAM, J.]\n\nPay Scales and revised pay scales of computers shown as identical in the Second Pay Commission Report-Right to be equated as Research Assistants Grade ll both in status ahd in pay is entirely within the sphere of the function of the Pay Commission-Effect of the Report of the Third Pay Commission.\n\nConstitution of India, 1950:......Article 32\" caii be resorld to 01ily for the enforcement of Fundamental Rights~Equation of posts is not a duty which the court under Art. 32 or the High Court under Art. 226 was competent to carry out.\n\nIn the 1959 Second Pay Commission Report, the pay scales and the re• vised pay scales of the Computers were shown as identical with that of the Research Assistants Grade II, even though the 'two posts were shown as separate classes.\n\nThe Third Pay Commission Report, however, showed that\n\nthe Computers not only belonged to a separate class of their own but received D less pay than Research Assistants' Grade II. The petitioners assailed this view under Art. 32 of the Constitution as violative of Articles 14 and 16 of the Constitution on the ground that they had a Fundamental Right to be equated both in status as well as in pay to that of Research Assistants, Grade II.\n\nDismissing t)le petition tlie Court.\n\nHELD : ( 1) Equation of posts and equation of pay are matters entirely within the spli:ere of the function of the Pav Commission.\n\nThese are questions E entirely unfit for determination upon a petition for a writ for the enforcement of Fundamental Rights. It requires; firstly, formulation of correct criteria for each classification. and. secondly. the application of these criteria to facts relating to the functions aild the qualifications for each class.\n\nThe Pay Coriimission had done thi!l in the instant case elaborately. [912 F, 913 B-C]\n\n(2) The Court. under Art. 32. neither has wider powers nor. can do it with greater facility than a High Court cannot, when exercising its writ issuing jurisdictiort. This Court had' already laid down that equation of posts is not a duiy .. Which the High Court was oompetent to carry out in proceedings under Art. 226. (913 DJ\n\nU11io11 of India v. G. R. Ptabliavalkar & Co. [1973] (3) SCR 714, referred to. '\n\n(:l) The question, whether thete is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determina.tion of which no hard and fast rules can be laid down. A discrimination which involves the invocation of Art. 14 is not• G necessarily covered by Art. 16.\n\nIn the instant case, even the material relied upon by the tretitioners shows the Computers and Research Assistants Grade II are cla5siJ1ed separately; and, tlrerefore, the validity . of that classification cannot be displaced by the kind ef evidence relied on.\n\nUntil that classification is shown to be unjustified, no question of violating Artide 16 . can arise.\n\n[913 G-H, 914 A]\n\nPurshottam Lal and Ors. v. Union of India & Anr. [19731 (1) sec 651 B held inapplicable.\n\nORIGINAL JURISDICTION : Writ Petition No. 43 of J 976.\n\nS. C. Agarwal for the Petitioners.\n\nSUJ'REME COURT REPORTS\n\n[1977] 2 §.8.R,\n\nL. N. Sinha, Sol Genl. and B. Ddtta for Respondents.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.-The petitioners before us are employees of the Forest Research Institute and Colleges Dehra Dun in the post11 designated a11 Computers.\n\nTheir grievance is that they should be treated as Re- 11earch As11istants Grade II and given the same scale of pay and other conditions of service as are applicable to Research Assistan'ts Grade\n\nII.\n\nThe respondents, Union of India and the Pr1!sident of the Forest Research Institute deny that the petitioners are entitled, to bi~ treated as Research Assistants Grade II.\n\nThe petitionen; rely upon certain alleged admissions on behalf of the opposite parties, on certain classifications of Computers in the past, prior to the recommenda1ions of the Third Pay Commission 1973 as well as on the last menti.oned report of the Central Pay Commission.\n\nFurthermore, learned counsel has invited our attention to the case of Purshottam Lal and Ors. Vs.\n\nUnion of India and another [1973 (1) S.C.C. 651] whereupon a Writ Petition by Computers, they were shown a11 having bee11 !ven identical scales of pay with the Research Assistants Grade H.\n\nThig decision however, does not deal with any \\:Ontrciversy as to the correct classification of computers in comparison with Research Assistants Grade II.\n\nAll we need say is that this ca'se: deals with the position under the Report of 1959 of the Second Pay Commission which has no bearing on the position which follows frorri the Repc-rt of the Third Pay Commission of 1973.\n\nMoreover, it is evident that even at that time Research Assistants Grade II and Computen wei:e shown a8 separatl) classes even though their pay scales and the revised! pay 1cales were shown as identical.\n\nThus the claim of the petitiom:rs is that this Court should not only include the Computers amon.gst Research Assistants Grade II, which is not borne out even from th• Report of the Second Pay Commission, but go further and equate their pays, so that, even though they belong to different classes, their scales of pay may be identical.\n\nWe are afraid this is a matter which lay entirely within the sphere of the functions of the Pay Commission.\n\nThis Court cannot satisfactorily decide 'uch disputed queations on the salender material on which the learned counsel for the peti1ioner relies in order to displace what appears to us to be, prima fade, th•\n\nellcct of the Report of the Third Pay Commission of 1973.\n\nThis report shows that Computers not only belong to a separate clas:s ol their own but received less pay than Research Assistants of Grade II.\n\nLearned Counsel for the petitioner's tried to get out of the report of the Third Pay Commission contained in Chapter XVII relating to the Economists and Statisticians, wherein Computers are mentioned and dealt with in paragraphs 32 to 34, by asserting that their case should be covered by either Chapter XV, whic:h deals with \"Scientific Services\" (specifically mentioned therein) or Chapter XXI, concerned with Ministry of Agriculture, where the Forest Research Institute and College's are mentioned in paragraphs 58 onwards.\n\nIt seems to us to be erroneous to attempt to place Computers in Ch2, pter XV, which deals with specified \"Scientific Services\" where Computers are not mentioned, or in Chapter XXI, which also does not mention Com-\n\n', Afr- '\n\nP. K. MAITHANI V. UNION (Beg, C.J.) 913\n\nputers at all.\n\nLearned Counsel for the petitioners tried to take advantage of the fact that paragraphs dealing with thx Forest Research Institute in Chapter XXI do not mention Computers.\n\nIt does not follow from this that Computers necessarily belong to the class into which the petitioners want 10 get in without showing what the criteria and fwictions of persons entitled to be treated as Research Assistants of Grade II are as compared with the Computers who, .prima f acie belong to another class of workers dealing with statistics even though they may be in some way assisting in research or three may be some common functions.\n\nIndeed, everyone working in a research institute could, in some way, be said to be assisting in research: We think that these are questions entirely unfit for determination upon a petition for a Writ for the enforcement of fundamental rights. It requires : firstly, formulation of correct criteria for each classification; and, secondly, the application of these criteria to facts relating to the functions and qualifications for each class. The Pay Commission had done this elaborately.\n\nThe learned Solicitor General has invited our attention to the case of Union of India v. G. R. Prabhavalkar & Ors. reported in 1973\n\n(3) S.C.R. 714, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuing jurisdiction.\n\nThe learned counsel for the petitioners has tried to take us at some length into the material on which he assails the yiew taken by E the opposite partie's.\n\nWe are unable to agree that, on the material placed before us, we can accept the petitioners' interpretation of facts to which our attention was drawn.\n\nWe are unable to consider other material also to which our attention was attemp, ted to be drawn because, on the basis of the materials shown to us_, W() are satisfied that such matters are not fit for determination by us on the kind of material sought to be placed before us.\n\nFinally, learned counsel for the petitioners pleaded that we may permit him to raise this matter before an Administrative or Service Tribunal if and when one is constituted. It is not necessary for us\n\nto give him any permission to do that. We may however observe that the petitiop.ers are at liberty to pursue other remedies, in.eluding those which may be available to them if any such Tribunal is set up G in future.\n\nWe want to make it clear that the question whether there is or there is not enough material on record in a particular case to establish the basis of a particular discrimination is one of fact for the determination of which no hard and fast rules can be laid down.\n\nMoreover, a discrimination, which involves the invocation of Articie\n\n14, is not necessary covered by Article 16. We do not propose to H discuss here the differences between Articles 14 ap.d 16, because we think that, eveµ the material relied upon on behalf of the petitioners before us shows that Computers and Research Assistants Grade II are classified separately.\n\nThe validity of that classification cannot,\n\n' A\n\nSUPREME COURT REP, ORTS [1977] 2 s.c.R. 914\n\nwe think, be displaced by the kind 9f evidnce .relied upon on behalf of the petitioners. And, until that classification is shown . to .... be unjustified, no question of violating Al; ticle 16 can arise .. We, the.refore, Ieave the petitioners to other means of redress if they still feet aggrieved.\n\nThe result is that we dismiss the Writ Petition,. but make no order as to costs.\n\ns. R.\n\nPetition dismissed.", "total_entities": 31, "entities": [{"text": "PRABHAT K1RAN MAlTHANl & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "PRABHAT KIRAN MAITHANI & ORS", "offset_not_found": false}}, {"text": "UNION OF 1NDIA & A.Nll", "label": "RESPONDENT", "start_char": 31, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "February 3, 1977", "label": "DATE", "start_char": 56, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "February 3, 1977\n\n[M. H. BEG, C.J. AND P. s. KAILASAM, J.]\n\nPay Scales and revised pay scales of computers shown as identical in the Second Pay Commission Report-Right to be equated as Research Assistants Grade ll both in status ahd in pay is entirely within the sphere of the function of the Pay Commission-Effect of the Report of the Third Pay Commission."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 75, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "P. s. KAILASAM, J.", "label": "JUDGE", "start_char": 95, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 415, "end_char": 436, "source": "regex", "metadata": {}}, {"text": "Article 32", "label": "PROVISION", "start_char": 449, "end_char": 459, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 582, "end_char": 589, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 614, "end_char": 622, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Second Pay Commission", "label": "ORG", "start_char": 664, "end_char": 685, "source": "ner", "metadata": {"in_sentence": "In the 1959 Second Pay Commission Report, the pay scales and the re• vised pay scales of the Computers were shown as identical with that of the Research Assistants Grade II, even though the 'two posts were shown as separate classes."}}, {"text": "Third Pay Commission", "label": "ORG", "start_char": 890, "end_char": 910, "source": "ner", "metadata": {"in_sentence": "The Third Pay Commission Report, however, showed that\n\nthe Computers not only belonged to a separate class of their own but received D less pay than Research Assistants' Grade II."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1107, "end_char": 1114, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 1151, "end_char": 1169, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1934, "end_char": 1941, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2222, "end_char": 2230, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 2614, "end_char": 2621, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 2655, "end_char": 2662, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Purshottam Lal", "label": "PETITIONER", "start_char": 3048, "end_char": 3062, "source": "ner", "metadata": {"in_sentence": "[913 G-H, 914 A]\n\nPurshottam Lal and Ors."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 3075, "end_char": 3089, "source": "ner", "metadata": {"in_sentence": "v. Union of India & Anr. ["}}, {"text": "sec 651", "label": "PROVISION", "start_char": 3108, "end_char": 3115, "source": "regex", "metadata": {"statute": null}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 3194, "end_char": 3207, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal for the Petitioners."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 3271, "end_char": 3282, "source": "ner", "metadata": {"in_sentence": "SUJ'REME COURT REPORTS\n\n[1977] 2 §.8.R,\n\nL. N. Sinha, Sol Genl."}}, {"text": "B. Ddtta", "label": "LAWYER", "start_char": 3298, "end_char": 3306, "source": "ner", "metadata": {"in_sentence": "and B. Ddtta for Respondents."}}, {"text": "BEG", "label": "JUDGE", "start_char": 3369, "end_char": 3372, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.-The petitioners before us are employees of the Forest Research Institute and Colleges Dehra Dun in the post11 designated a11 Computers."}}, {"text": "Central Pay Commission", "label": "ORG", "start_char": 4141, "end_char": 4163, "source": "ner", "metadata": {"in_sentence": "The petitionen; rely upon certain alleged admissions on behalf of the opposite parties, on certain classifications of Computers in the past, prior to the recommenda1ions of the Third Pay Commission 1973 as well as on the last menti.oned report of the Central Pay Commission."}}, {"text": "Third Pay Commission of 1973", "label": "ORG", "start_char": 5719, "end_char": 5747, "source": "ner", "metadata": {"in_sentence": "This Court cannot satisfactorily decide 'uch disputed queations on the salender material on which the learned counsel for the peti1ioner relies in order to displace what appears to us to be, prima fade, th•\n\nellcct of the Report of the Third Pay Commission of 1973."}}, {"text": "P. K. MAITHANI", "label": "JUDGE", "start_char": 6648, "end_char": 6662, "source": "ner", "metadata": {"in_sentence": "It seems to us to be erroneous to attempt to place Computers in Ch2, pter XV, which deals with specified \"Scientific Services\" where Computers are not mentioned, or in Chapter XXI, which also does not mention Com-\n\n', Afr- '\n\nP. K. MAITHANI V. UNION (Beg, C.J.) 913\n\nputers at all."}}, {"text": "Union of India", "label": "ORG", "start_char": 7884, "end_char": 7898, "source": "ner", "metadata": {"in_sentence": "The learned Solicitor General has invited our attention to the case of Union of India v. G. R. Prabhavalkar & Ors."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8090, "end_char": 8101, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 9634, "end_char": 9644, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 14", "label": "PROVISION", "start_char": 9706, "end_char": 9717, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1977_2_915_919_EN", "year": 1977, "text": "PIAREY LAL\n\nHORiLAL\n\nFebruary 7, 1977\n\n[P. K. GdSWAMI AND P. N. SHINGHAL, JJ.]\n\nU.P. Co11solidatio11 of Holdiitgs Act, 1953, s. 30(b)-Whether agreement for sale creates liability for tenure-Jzolder \"in\" original holding for the purpose of.\n\nThe appellant Piarey Lal had agreed to sell his original nolding to Hori Lal C nut later refused to do so on the ground that his p\"roperty which was the subject matter ofthe contract had been consolidated under the U.P. Consolidation of Holdings Act, 1953, and it was impossible to perform the agreement.\n\nHori Lal filed a suit for specific performance contending that the agreement for sale had created a liability for Piarey Lal for the purpose of section 30(b) o.f the Act, arid the same wl!S transferred to the new plot or \"chak\" allotted to him as a result of the consolidation. The suit was decreed by the Trial Court and Piarey Lal's appeals before the District Court and the n.\n\nHigh Cuurt were dismissed. u\n\nAllowing the appeal by Special Leave the Court,\n\nHELD : . By virtue of s. 54 of the_ Trapsfer of Property Act, the agreement for shle did not give fise to any interest \"in\" the original holding of the dtifen<'innt as the tenure-holder.\n\nThere could thus be no occasion for the transfer of any such \"liability\" in his new land or \"chak\" so as to attract clause (b) of s. 30 of the Act. When he lost that property as a result of the scheme of consolidation, the agreement for sale became void. [918 C-El\n\nSugna & Anr. v. Kali Ram & Ors. 1966 A. L. J. 1004, ruiiproved.\n\nShanti frasad v. Akhtar & Anr. 1972 A.L.J. 549 and Clzetan Singh & Ors.\n\nv. Hira Singh & Ors. 1969 A.L.J. 189. overruled .\n\n. CIVIL ArPELLATE Juiusi>ICTION : Civil Appel No. 1252 of 1976.\n\nAppeal by spei; ial Leave froni the Judgment and Order dated 13-8-1975 of the Allahabad High Court in Second Appeal No. 179/ 75. .\n\nA. k. Gupta, for the Appellant.\n\nS. T. Desdi and R. B. , D'a(ar for the Respondent.\n\nThe Judgment of the Court was delivered by.\n\n~HINGHAL, J .-This appeal_, by special leave, is dire\"cted agafust the summary dismissal of defendant Piiffey Lal's second appeal on Augtist 13, 1975.\n\nA..; the leave has been limited to tM question of i_nterprefatioi\\ of Clauses (a) a, nd, (b). of seCtion 30 of the U.P.\n\nC-Offsolidatiofi of Holdings Act, 1953, (hereinafter referred to as the Act), \"for the purpose of deciding whether the liability of the petitioner to specifically perform the contract of sale . of the old holding was transferred to the new 'chak' allotted to hiiri oh consolidation,\" it will be enough to state the facts which he'at on it.\n\nRespondent Hori Lal raised the suit for specific performance of an agreement dated March 6, 1966, for the sale of six plate of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur. It was alleged in the plaint that Rs. 3000/- were paid by the plaintiff Hori Lal in advance, and the balance of Rs. 2000/-\n\nwas to be paid at the time of the execution of the sale deed, within one year of the agreement. It was also pleaded that as defendant Piarey Lal refused to execute the sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alternative, for the recovery of Rs. 3000/- which had been paid as advance.\n\nDefendant Piarey Lal denied the execution of the agreement for sale and the receipt of Rs. 3000/-, and pleaded that as new plots had been allotted as a result of the consolidation of his holding under the Act, he could not perform the agreement for sale.\n\nThe trial coun framed issues, inter alia, on questions. relating to the execution of the agreement .for sale, payment of Rs. 3000/- to the defendant, and the inability of the defendant to perform the contract.\n\nThat court held that the plaintiff had proved the agreement for sale and the payment of Rs. 3000/-. It also held that the agreement for sale could be \"enforced for plots allotted to the defendant in lieu of plot mentioned in the agreement in consolidation.\" It therefore decreed the suit for specific performance by its judgment dated August 23, 1973.\n\nThe Second Additional District Jiudge, Badaun, upheld the decree, and as the High Court has dismi'ssed the second appeal as aforesaid, dfendant Piarey Lal has come to this Court for a redress of hi's grievance by special leave.\n\nAs has be!<n stated, the limited question for consideration in this Court is whether the defendant was liable to specifically perform the contract for sale of his old holding even after its consolidatfori and the allotment of a 'chak' ? It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreement fr sale had been executed.\n\nA Single Judge of that Court took the view in Sugna and another v. Kali Ram and others(') that the ·.agreement became void and impossible of performance, and was not saved by section 30 of the Act.\n\nA different view was however taken ; by another Single Judge in Chetan Singh and others v. Hira Singh and others(').\n\nThe matter was referred to a Division Bench in Shanti Prasad v. Akhtar and another. (8) One of the Judges in the Division Bench was the Judge who had _given the decision in Chelan Singh's case.\n\nThe Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold was a liability recognised by law and was enforceable as the liability \"relates to the land mentioned in the agreement\" and was \"transferred to the new 'chak' \" under _section 30 (b) of the Act.\n\nThe decision in Shanti Prasad's case formed the basis of the decision of the first appellate\n\n(1) 1966 A .. L.J. 1004.\n\n(2) 1969 A.L.J. 189.\n\n(3) 1972 A.L.J. 549.\n\n• ..\n\nPIAREY LAL v .. HO.Ill LAL (Shinghal, J.) 917\n\ncourt in this case, and that appears to be the. reason why the High Court has dismissed the second appeal summanly.\n\nThe controversy . therefore turns on the proper interpretation of section 30 of the Act which deals with the consequences which ensue on exchange of possession as a result of the allotment of a 'chak' to the tenure-holder.\n\nClauses (a) and (b) of section 30 of the Act provide as foliows,-\n\n\"30. Consequences which shall ensue on exchange of possession.-With effect from the date on w.hich a tenu_reholder enters, or is deemed to have entered mto possess10n of the chak allotted to him, in accordance with the provisions of this Act, the following consequences shall ensue-\n\n(a) the rights, title, interests and liabilities-\n\n(i) of the tensure-holder entering, or deemed to have entered, into possession, and\n\n(ii)\n\n(b)\n\nof the former tenure-holder of the plots comprising the chak, in their respective original holdings shall cease; and\n\nthe tenure-holder entering into possession, or deemed to have entered into possession, shall have in hi& chak the same rights, title, interests and liabilities ai he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them.\"\n\nMl.I&\n\nIt w9uld thus appear that while clause (a) deals with the rights, title, interests and liabilities of the tenure-holder entering into possession of the 'chak', as well as of the former tenure-holder of the plots comprising the 'chak', in their respective original holdings, and F provides that those rights, title, interests and liabilities shall \"cease\", clause (b) P, i'ovides that the tenure-holder l'.ntering into possession of the 'chak' shall have, in that 'chak', the 'same rights, title, interests and liabilities \"as he had in the original holdings.\" The expression 'chak' has been defined in section 3(1-A) of the Act to mean \"the parcel of land allotted to a tenure-holder on consolidation.\" The two clauses therefore are quite simple and clear, and do not raise any G real problems of interpretation, but the question is whether there is\n\njustification for the argument, in the facts and circumstance's of this case, that the expression \"liabilities\" would cover the liability of the seller (i.e. the defendant) , under the aforesaid agreement for the sale of his original holding ?\n\nAs is obvious, clause (a) of section 30 does not bear on the H question in controversybecau'se it only provides for the cessation of the rights, title, interests and liabilities both of the tenure-holder to whom the 'chak' has been allotted, .and of the former tenure-holder\n\nof the plots comprising the 'chak' in their respective \"original holdings\".\n\nThere is no controversy that this was so in the present case.\n\nIt is afso no body's case that the rights, title, and interests of the tenure-holder ntering into possession of his 'chak' have any bearing on. the controvrsy relating to the specified performance of the agreement for sale, for all that has been urged before us is tat the defendant, as the tenure-holder of the new holding or 'chak' had the same \"liabilities\" in that 'chak' as he had in tjle original holding.\n\nWhat therefore remains for consideration is whether, Qn the defendant's entering into possession of his new land or 'chak', there was the same liability \"in\" the new land as \"in\" the original holding. It has therefore to be examined whether, by virtue of the agreement for sale, any liability accrued \"in\" the original holding ?\n\nA cross-reference to section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the P,_arties.\n\nIt has however been specifically provided in the section that such a contract \"does not, of itsellf, create any interest in or charge on such prol'erty.\" It would therefore follow that the agreement for sale in the present case did not give rise to any interest \"in\" the original holding of the defendant as the tenure-holder. That being so, there could be no occasion for the tiansfer of any such \"liability in\" the new land or 'chak' of the defendant so as to attract clause (b) of section 30 of the Act. In fact what the defendant was bound to do under section 55(1) (d) of the Transfer qf Property Act wag to execute a proper conveyance of \"the property\" which was the subject matter of the contract for sale, and not of _any other property.\n\nSo when he lost that property as a result of the scheme of consolidation and his rights, title, interest's ceased in ttla_t property by virtue of clause (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contratt Act, and it is futile to urge that they were saved by clause (a) or clausf-\n\n(b) of 11ection 30 of the Act.\n\nWe have gone through the decision in Shanti Prasad's case (supra), but we find that while the High Court took note of the fact that the rightS, title, interests and liabilities of the tenure-holder \"in\" his original holdings ceased, and he acquired the same rights, title, interests and liabilities \"in\" the 'chak' allotted to him, it lost sight of the significance of the word \"in\", and the afores_aid provisions of section 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether \"the tenure.-\n\nholder\" was subject to any liability \"in respect of\" his old holding.\n\nThat was why it felL into the error of holding that a liability w311 created in the original holding of the defendant, and was transferred to his 'chak' on his entering into its possession.\n\nAs ha;; been shown, that was an erroneous view which has to be re:ctified.\n\nIt may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was. the subject .matter of the agteement of sale, because, that holding liad been supstituted\" by the 'chak'.\n\n___ -. ~----~-----~-------------·-----~----- --, ·· __ ccc_-' '' _' _ •-··_• ---_ .,_ •. ,,. ·-~-1\"'-\",;·-_u__- -_--, _y•_-~·~__._l!l!!!!M! ___ ---__ w_-. __ • ·-· - ..• -- -~\"llr' -\"\"\"'~~~°''\"'\"\")+-;.-~'~\"~\"*~~;;' -- '-~~-m•@l@lli-l!IJ!l!ll!'I!!~ ..\n\nPIA:it.EY LAL v. HORI LAL (Shinghal, !.) 919\n\nHe also tried to argue that the '.chak' allotted to the defendant by way A of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act. Counsel could not however support his argument by reference to the law, or the facts of the case.\n\nMoreover he was unable to 'show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the\n\nct.\n\nB It would thus_ appear that the plaintiff respondent's suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view.\n\nCounsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/- along with interest at 6 per_ cent per annum from the date Of payment. - C\n\nThe appeal is allowed with costs, the impugned juJgment of the High Court is set aside, and the suit of plaintiff-respondent Hori Lal is dismissed in so far as it relates to specific performance of the agreement for sale.\n\nIt is however ordered that the dfendant shall repay Rs. 3000 /- to the plaintiff, along with interest at 6 per cent per annum from the date of payment, within three months from today.\n\nM.R.\n\nAppeal allowed.", "total_entities": 46, "entities": [{"text": "PIAREY LAL", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "PIAREY LAL", "offset_not_found": false}}, {"text": "February 7, 1977", "label": "DATE", "start_char": 21, "end_char": 37, "source": "ner", "metadata": {"in_sentence": "PIAREY LAL\n\nHORiLAL\n\nFebruary 7, 1977\n\n[P. K. GdSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "Holdiitgs Act, 1953", "label": "STATUTE", "start_char": 104, "end_char": 123, "source": "regex", "metadata": {}}, {"text": "s. 30(b)", "label": "PROVISION", "start_char": 125, "end_char": 133, "source": "regex", "metadata": {"linked_statute_text": "Holdiitgs Act, 1953", "statute": "Holdiitgs Act, 1953"}}, {"text": "to Hori Lal", "label": "RESPONDENT", "start_char": 306, "end_char": 317, "source": "metadata", "metadata": {"canonical_name": "HORI LAL", "offset_not_found": false}}, {"text": "Consolidation of Holdings Act, 1953", "label": "STATUTE", "start_char": 461, "end_char": 496, "source": "regex", "metadata": {}}, {"text": "Piarey Lal", "label": "PETITIONER", "start_char": 661, "end_char": 671, "source": "ner", "metadata": {"in_sentence": "Hori Lal filed a suit for specific performance contending that the agreement for sale had created a liability for Piarey Lal for the purpose of section 30(b) o.f the Act, arid the same wl!S transferred to the new plot or \"chak\" allotted to him as a result of the consolidation.", "canonical_name": "PIAREY LAL"}}, {"text": "section 30(b)", "label": "PROVISION", "start_char": 691, "end_char": 704, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act, 1953", "statute": "Consolidation of Holdings Act, 1953"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 1029, "end_char": 1034, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act, 1953", "statute": "Consolidation of Holdings Act, 1953"}}, {"text": "Trapsfer of Property Act", "label": "STATUTE", "start_char": 1043, "end_char": 1067, "source": "regex", "metadata": {}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1325, "end_char": 1330, "source": "regex", "metadata": {"linked_statute_text": "Trapsfer of Property Act", "statute": "Trapsfer of Property Act"}}, {"text": "CIVIL ArPELLATE Juiusi", "label": "PETITIONER", "start_char": 1652, "end_char": 1674, "source": "ner", "metadata": {"in_sentence": "CIVIL ArPELLATE Juiusi>ICTION : Civil Appel No."}}, {"text": "A. k. Gupta", "label": "LAWYER", "start_char": 1847, "end_char": 1858, "source": "ner", "metadata": {"in_sentence": "A. k. Gupta, for the Appellant."}}, {"text": "S. T. Desdi", "label": "LAWYER", "start_char": 1880, "end_char": 1891, "source": "ner", "metadata": {"in_sentence": "S. T. Desdi and R. B. , D'a(ar for the Respondent."}}, {"text": "R. B.", "label": "LAWYER", "start_char": 1896, "end_char": 1901, "source": "ner", "metadata": {"in_sentence": "S. T. Desdi and R. B. , D'a(ar for the Respondent."}}, {"text": "~HINGHAL", "label": "JUDGE", "start_char": 1977, "end_char": 1985, "source": "ner", "metadata": {"in_sentence": "~HINGHAL, J .-This appeal_, by special leave, is dire\"cted agafust the summary dismissal of defendant Piiffey Lal's second appeal on Augtist 13, 1975."}}, {"text": "Piiffey Lal", "label": "RESPONDENT", "start_char": 2079, "end_char": 2090, "source": "ner", "metadata": {"in_sentence": "~HINGHAL, J .-This appeal_, by special leave, is dire\"cted agafust the summary dismissal of defendant Piiffey Lal's second appeal on Augtist 13, 1975."}}, {"text": "Offsolidatiofi of Holdings Act, 1953", "label": "STATUTE", "start_char": 2252, "end_char": 2288, "source": "regex", "metadata": {}}, {"text": "Hori Lal", "label": "RESPONDENT", "start_char": 2602, "end_char": 2610, "source": "ner", "metadata": {"in_sentence": "Respondent Hori Lal raised the suit for specific performance of an agreement dated March 6, 1966, for the sale of six plate of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur.", "canonical_name": "Hori Lal"}}, {"text": "March 6, 1966", "label": "DATE", "start_char": 2674, "end_char": 2687, "source": "ner", "metadata": {"in_sentence": "Respondent Hori Lal raised the suit for specific performance of an agreement dated March 6, 1966, for the sale of six plate of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur."}}, {"text": "Hathiawali", "label": "GPE", "start_char": 2769, "end_char": 2779, "source": "ner", "metadata": {"in_sentence": "Respondent Hori Lal raised the suit for specific performance of an agreement dated March 6, 1966, for the sale of six plate of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur."}}, {"text": "Gannaur", "label": "GPE", "start_char": 2788, "end_char": 2795, "source": "ner", "metadata": {"in_sentence": "Respondent Hori Lal raised the suit for specific performance of an agreement dated March 6, 1966, for the sale of six plate of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur."}}, {"text": "Hori Lal", "label": "PETITIONER", "start_char": 2869, "end_char": 2877, "source": "ner", "metadata": {"in_sentence": "3000/- were paid by the plaintiff Hori Lal in advance, and the balance of Rs.", "canonical_name": "Hori Lal"}}, {"text": "Piarey Lal", "label": "RESPONDENT", "start_char": 3055, "end_char": 3065, "source": "ner", "metadata": {"in_sentence": "It was also pleaded that as defendant Piarey Lal refused to execute the sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alternative, for the recovery of Rs.", "canonical_name": "PIAREY LAL"}}, {"text": "August 23, 1973", "label": "DATE", "start_char": 4103, "end_char": 4118, "source": "ner", "metadata": {"in_sentence": "It therefore decreed the suit for specific performance by its judgment dated August 23, 1973."}}, {"text": "Badaun", "label": "GPE", "start_char": 4160, "end_char": 4166, "source": "ner", "metadata": {"in_sentence": "The Second Additional District Jiudge, Badaun, upheld the decree, and as the High Court has dismi'ssed the second appeal as aforesaid, dfendant Piarey Lal has come to this Court for a redress of hi's grievance by special leave."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4632, "end_char": 4652, "source": "ner", "metadata": {"in_sentence": "It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreement fr sale had been executed."}}, {"text": "section 56", "label": "PROVISION", "start_char": 4766, "end_char": 4776, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 5114, "end_char": 5124, "source": "regex", "metadata": {"statute": null}}, {"text": "Chelan Singh", "label": "OTHER_PERSON", "start_char": 5429, "end_char": 5441, "source": "ner", "metadata": {"in_sentence": "8) One of the Judges in the Division Bench was the Judge who had _given the decision in Chelan Singh's case."}}, {"text": "section 30", "label": "PROVISION", "start_char": 5722, "end_char": 5732, "source": "regex", "metadata": {"statute": null}}, {"text": "Shanti Prasad", "label": "OTHER_PERSON", "start_char": 5766, "end_char": 5779, "source": "ner", "metadata": {"in_sentence": "The decision in Shanti Prasad's case formed the basis of the decision of the first appellate\n\n(1) 1966 A .. L.J. 1004."}}, {"text": "section 30", "label": "PROVISION", "start_char": 6150, "end_char": 6160, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 6331, "end_char": 6341, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(1-A)", "label": "PROVISION", "start_char": 7910, "end_char": 7924, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 8433, "end_char": 8443, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 9584, "end_char": 9594, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 9602, "end_char": 9626, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 30", "label": "PROVISION", "start_char": 10269, "end_char": 10279, "source": "regex", "metadata": {"statute": null}}, {"text": "section 55(1)", "label": "PROVISION", "start_char": 10341, "end_char": 10354, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 10692, "end_char": 10702, "source": "regex", "metadata": {"statute": null}}, {"text": "section 56", "label": "PROVISION", "start_char": 10772, "end_char": 10782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 54", "label": "PROVISION", "start_char": 11325, "end_char": 11335, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 11343, "end_char": 11367, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 30", "label": "PROVISION", "start_char": 12554, "end_char": 12564, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 12833, "end_char": 12843, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_920_924_EN", "year": 1977, "text": "BAI MANI & OTHERS\n\nII.\n\nMANILAL LALLUBHAI & ORS.\n\nFebruary 7, 1977\n\n[S. MURTAZA FAZAL ALI AND P. S . .KAILASAM, JJ.]\n\nHindu Succession Act-Hindu Women's Rig/zt to Property Act 1937- Whether vartition bv metes and bounds-Whether new case can be made out in the absence of issue.\n\nThe respondent-plaintiffs filed a suit for partition and allotment of one half share of the suit house and the moveab'.c properties.\n\nOne Faqir Cll'.nd b:td 3 sons, N athubhai, Lallubhai and N anabhai. N anabhai was the defendant in the suit whose legal representatives are appellants.\n\nLallubhai's heirs are the plaintiffs.\n\nAccording to the plaintiffs the three \\Jroth., ro were mmbers of a Joint Undivided Hindu Family. According to the respondents the properties were never partitioned thoug~ the three brothers were staying and messing separntely and each branch carried on its business se, parately.\n\nThe respon~ dents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale .was not for legal necesity. The appellants contended that the three brothers\n\nwere eparate and each branch used to do its business separately.\n\nThat as far as the suit house was concerned it was divided though not by metes and bounds and that the brothers lived in separate portions of the house.\n\nThe appellants claimed that they were entitled to 2/3 share on the house.\n\nThe Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai.\n\nIt also found that the defendant and his brothers had separated and the suit house wiis also divided as alleged by the defendant.\n\nIt came to the conclusion that the defendant had failed to prove th\"t there was any legal necessity for Bai Kashi to sell the share in the suit house and that after Bai Kashi's death the respondent was entitled to one half share in the suit house. The Trial Court found that Bai Kashi became entitled to one half share of her husband in the suit house under the Hindu Women's Rights to Property Act, 1937.\n\nAs her interest was only limited interest known as Hindu Women's Estate when Bai Kashi died in January 1956, she had not become the full owner of the share under the Hindu succession Act, 1956.\n\nThe court was of the view that on the death of Bai Kashi her share would go to the reversioners.\n\nThe court held that the parties were governed by Mayukh school which over-rules the Mitakshara school and, therefore, after the de&th of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the plaintiff for one half share should be decreed though there was no specific claim on the plea cf separation and heirship. The High Court dismissed the appeal and confirmed the findings of the Trial Court.\n\nIn an appeal by Special Leave the appellants contended that the respondents' plea that the 3 brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the court erred in making out a new case of succession to the property of Bai Kashi without necessary pleadings.\n\nAllowing the appeal partly,\n\nHELD : 1. On the question whether the respondents are entitled to one half share on her death has not been dealt with by the High Court. This Court agreed with the concurrent findings of the Trial Court and the High Court that the family was separate and that the sale deed by Bai Kashi in favour of the appellants was not for legal necessity. However, the claim of the respondent for partition and allotment of 1 /3 share' by metes and bounds\n\n' ,\n\n... -\n\n,., ' .\n\nBAI NANI v. MANILAL LALLUBHAI (Kailasam, J.) 921\n\ncannot be resisted.\n\nThough the brothers became separate admittedly there A was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3 share in the house. (924 A-Cl\n\n2. The High Court did not deal satisfactorily with the contention of the defendant that the Trial Judge erred in saying that Bai Kashi had only a widow's estate when she died in the absence of any issue as to who were heirs of the deceased Bai Kashi. On the question whether respondents are entitled to succeed to Bai Kashi's 1/2 share, the Court remitted the matter to the High Court for consideration. [924 C-Dl B:\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1988 of 1968.\n\nAppeal by Special Leave from the Judgment and Decree dated 21/22-3-1968 of the Gujarat High Court in First Appeal No. 760/60.\n\nS. T. Desai, I. N. Shroff and H. S. Parihar for the Appellants.\n\nJ. B. Nagarsett and A. G. Ratnaparkhi for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nKArLASAM, J.\n\nThis appeal is by the legal representatives of the defendant in the suit by special leave against the judgment and decrC'e of the High Court of Guiarat.\n\nThe suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one-half share of the suit house and the moveable properties mentioned in the plaint.\n\nOne Fakirchand had three sons, . Nathubhai, Lallubhai and Nanabhai.\n\nNanabhai is the defendant whose legal representatives are the present appellants in this Court.\n\nLallubhai's son, Manila!, was the first pla!intiff and his mother and widow of Lallubhai, Bai Mani, was the second plaintiff.\n\nThe second plaintiff is since dead and his legal representatives are respondents 2 (b) and 2(c) in this appeal.\n\nNathubhai, Lallubhai and Nanabhai were originally the members of a joint Hindu family.\n\nThe case of the plaintiffs, respondents in this appeal, is that the three brothers Nathubhai, Lallubhai and Nanabhai were mempers of\n\na joint undivided Hindu family and when they were joint in the year F 1940 Nathubhai died leaving his widow Bai Kashi.\n\nSubsequently in the year 1942 Lallubhai died.\n\nOn 24th January, 1956 Bai Kashi, the widow of Nathubhai, died while the family continued to be a joint undivided Hindu family.\n\nAccording to the respondents the properties were never partitioned though the three brothers were staying and messing separately and each branch carried on its business separately. The family immoveable and moveable prqperties were never Gdivided. The respondents also questioned the validity of a sale deed executed by Bai Kashi on 25th April, 1955 in favour of the appellants of her share in the immoveable property as it was not for legal necessity .\n\nIn the written statement the appellants denied that the three brothers were members of a joint family.\n\nThey pleaded that the brothers were H, separated and each branch used to do its own business keeping their earnings separately and messing separately.\n\nSo far as the suit house was concerned it was divided though not by metes and bounds and the\n\nSUPREMJl COURT REPORTS (1977] 2 s.C.R.\n\n.brothers livd in separate portions of the house.\n\nThe appellants claimed that t)ley were entitled to 2/3 share in the house as Bai Kashi the widow of Nathubhai had sold her share by registered deed 25th April, 1955 to the appellants.\n\nOn these pleadings 9 issues were framed of which three are relevant for the purpose of this appeal.\n\nThey are: (1) Does the defendant prove that he and his two brothers-Nathubhai and Lallubhai had separated and the suit-house was also divided (through not by. metes and bounds) at the time of the, death of Nathubhai ? (2) Does he further prove that the sale-deed executed by Bai Kashi in respect of the one-thlfd share of the suit-house was for legal necessity and to satisfy her debts ? and (3) Do the plaintiffs prove that after Bai Kashi's death they become entitled to a one-half share in the whole of the suithouse ? The trial court found that the three brothers had become separate in status before the deaths of N athubhai and Lallubhai.\n\nIt also found that the defendant and his brothers had separated and the suit-house was also divided as alleged by the defendant and recorded the finding in favour of the defendant.\n\nRegarding the second issue it found that the defendant had failed to prove that there was legal necessity for Bai Kashi to sell away the share in the suit-house.\n\nOn the third issue the trial court recorded a finding that after Bai Kashi's .death the respondents became entitled to 1 /2 share in the whole of the suit-house.\n\nOn appeal the High Court confirmed the findings of the trial court on three issues and dismissed the appeal.\n\nE The findings of both the courts below that the defendant and his two brothers had separated and the suit-house was also divided by metes and bounds was not challenged before us by the counsel for the respondents. So also the finding that the sale deed executed by Bai Kashi in respect of her 1/3 share of the suit-house was not proved to have been for legal necessity.\n\nThe only point that was raised by the counsel for the appellants is that the respondents' plea that the three F brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the courts erred in finding a new case of succession to the property of Bai Kashi without the necessary pleadings.\n\nIt may be observed that on the accepted finding of the courts below that the sale in favour of the appellants by Bai Kashi is not supported by legal necessity if on the :G death of Bai Kashi the other two branches i.e. that of the appellants and the respondents, are entitled to share equally the decree granted by courts below would be right even though the claim to the 1(2 share is not based on succession.\n\nThe contention of the counsel for the appellants is that the courts below have found an entirely new case on the basis of succession which is contrary to fhe claim made in the plaint. The averment in the paiint\n\nis that on 24th January, 1956 Bai KasM the widow of Nathubhai died .aqd Nanabhai continued as the µiember of the joint Hindu family.\n\n.. -\n\nBAI MANI v. MANILAL LALLUBHAI (Katlasam, J.) 923\n\nThere is no alternate claim that in the event of the partition being negatived the plaintiff would be entitled to 1 /2 share of Hai Kashi by succession.\n\nThe 3rd issue that was raised was whether on Bai Kashi's death the appellants became entitled to 1/2 share in the whole suit-house.\n\nThe trial court on that issue found that Bai Kashi became entitled to 1/2 share of her husband in the suit-house under the Hindu Women's Rights to Property Act, 1937. As her interest was only a limited interest known as Hindu Women's Estate when Bai Kashi died in January 1956 she had not become the full owner of the share under the Hindu Succession Act, 1956.\n\nOn this basis the trial court was of the view that on the death of Bai Kashi her share would go to the reversioners.\n\nOn the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full brothers inherit along with sons Q_f full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubha; i. The court held that the claim of the plaintiff for l /2 share should be decreed though there is no specific claim on the plea of separation and heirship.\n\nThe defendant, present appellants, in their appeal to the High Court submitted that the trial Judge erred in saying that Bai Kashi had only a widow's estate when she died and that the trial court failed to appr-eciate that no issue was framed as to who were the heirs of the deceased Bai Kashi and that the parties to the suit had not gone to the trial oa the basis of the succession.\n\nThe High Court has not dealt with this issue satisfactorily.\n\nThe High Court after referring to . the pleadings observed that the plaintiffs claimed 1 /2 share in the suit properties on the ground of survivorship and that at the time of the arguments it was contended before the trial court that even if the brothers had separated the defendant and the plaintiff No. 1 inherited together to Nathubhai after Bai Kashi's death and therefore the plaintiff would be entitled to 1/3 share.\n\nAfter making these observations the High Court has referred to the plea n the written statement that the three brothers were separated and has observed that the trial Judge had framed the issue as to whether the defendant proves that he and his two brothers Nathubhai and Lallubhai had separated and the suithouse was divided and concluded that this issue which was raised by the learned trial Judge clearly arose out of the contention which was raised by the defendant to the plaintiff's suit and a specific issue was raised on that point by the learned trial Judge and therefore there is no prejudice to any of the parties because the issue was framed and evidence wa$ led by both the parties on that point.\n\nThis reference, we are afraid, does not relate to issue No, 3 which is about the succession to Bai Kashi's share after her death.\n\nIn the Memorandum of Grounds in the appeal to the High Court as well as in the special leave petition the ground that is taken specifically is that the plaintiff has not proved how he became entitled to the share of Bai Kashi.\n\nIn fact, the contention is that on the death of Nathubhai his widow Bai Kashi inherited under the Mayukh law Nathubhai's 1/3 share in the suit-house absolutely.\n\nIt was also contended before the High Court that the trial Judge was in error in saying that Mayukh school of Hindu law would override the Mitakshara school in Gujarat.\n\nWe find that the question l l-206SCI/77\n\n!SUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nthat arose mainly whether the respondents are entitled to succeed to Bai Kashi's 1/2 share on her death has not been satisfactorily dealt with by the High Court especially when the point was specifically raised on behalf of the appellants.\n\nWhile we agree with the concurrent finding of the trial court and the High Court that the family became separated and that the sale deed by Bai Kashi in favour of the appellants is not for legal necessity we are satisfied that the claim of the respondents for partition and allotment of 1/3 share by metes and bounds cannot be resisted.\n\nThough the brothers became separate admittedly there was no division by metes and bounds.\n\nThere is also no dispute that the respondents are entitled to 1/3 share in the house.\n\nTherefore though they became separated in status the suit-house was not divided by metes and bounds and therefore they will be entitled to division and separate possession of 1/3 share in the house. To this extent the decree of the courts below will be modified.\n\nBut so far as the.1/3 share of Bai Kashi is concerned as the courts below have not considered the appellants' plea that the respondents are not entitled to succeed to Bai Kashi's 1/2 share the question is remitted to the High Court for consideration. The High Court will consider as to whether the respondents are entitled to succeed to 1/2 of the 1/3 share of Bai Kashi and pass a decree accordingly.\n\nTo this extent the appeal is allowed and the decree of the trial court and the High Court modified.\n\nThe parties will bear their own costs in thi! appeal.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 41, "entities": [{"text": "BAI MANI & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BAI NANI & OTHERS", "offset_not_found": false}}, {"text": "MANILAL LALLUBHAI & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "MANILAL LALLUBHAI & ORS", "offset_not_found": false}}, {"text": "February 7, 1977", "label": "DATE", "start_char": 50, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "February 7, 1977\n\n[S. MURTAZA FAZAL ALI AND P. S ."}}, {"text": "S. MURTAZA FAZAL ALI", "label": "JUDGE", "start_char": 69, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI*", "offset_not_found": false}}, {"text": "P. S . .KAILASAM, JJ.", "label": "JUDGE", "start_char": 94, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 118, "end_char": 138, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Property Act 1937", "label": "STATUTE", "start_char": 163, "end_char": 180, "source": "regex", "metadata": {}}, {"text": "Bai Kashi", "label": "OTHER_PERSON", "start_char": 962, "end_char": 971, "source": "ner", "metadata": {"in_sentence": "The respon~ dents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale .was not for legal necesity.", "canonical_name": "Bai Kashi"}}, {"text": "Nathubhai", "label": "PETITIONER", "start_char": 985, "end_char": 994, "source": "ner", "metadata": {"in_sentence": "The respon~ dents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale .was not for legal necesity.", "canonical_name": "N athubhai"}}, {"text": "Lallubhai", "label": "OTHER_PERSON", "start_char": 1516, "end_char": 1525, "source": "ner", "metadata": {"in_sentence": "The Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai."}}, {"text": "Rights to Property Act, 1937", "label": "STATUTE", "start_char": 2035, "end_char": 2063, "source": "regex", "metadata": {}}, {"text": "Hindu succession Act, 1956", "label": "STATUTE", "start_char": 2232, "end_char": 2258, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Cl\n\n2", "label": "PROVISION", "start_char": 3987, "end_char": 3992, "source": "regex", "metadata": {"statute": null}}, {"text": "s 1", "label": "PROVISION", "start_char": 4315, "end_char": 4318, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4598, "end_char": 4609, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and H. S. Parihar for the Appellants."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 4611, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and H. S. Parihar for the Appellants."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 4628, "end_char": 4641, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, I. N. Shroff and H. S. Parihar for the Appellants."}}, {"text": "J. B. Nagarsett", "label": "LAWYER", "start_char": 4663, "end_char": 4678, "source": "ner", "metadata": {"in_sentence": "J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 4683, "end_char": 4700, "source": "ner", "metadata": {"in_sentence": "J. B. Nagarsett and A. G. Ratnaparkhi for the Respondents."}}, {"text": "KArLASAM", "label": "JUDGE", "start_char": 4767, "end_char": 4775, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKArLASAM, J.\n\nThis appeal is by the legal representatives of the defendant in the suit by special leave against the judgment and decrC'e of the High Court of Guiarat."}}, {"text": "High Court of Guiarat", "label": "COURT", "start_char": 4911, "end_char": 4932, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKArLASAM, J.\n\nThis appeal is by the legal representatives of the defendant in the suit by special leave against the judgment and decrC'e of the High Court of Guiarat."}}, {"text": "Manilal Lallubhai", "label": "PETITIONER", "start_char": 4957, "end_char": 4974, "source": "ner", "metadata": {"in_sentence": "The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one-half share of the suit house and the moveable properties mentioned in the plaint.", "canonical_name": "MANILAL LALLUBHAI & ORS"}}, {"text": "Bai Mani", "label": "OTHER_PERSON", "start_char": 4989, "end_char": 4997, "source": "ner", "metadata": {"in_sentence": "The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one-half share of the suit house and the moveable properties mentioned in the plaint."}}, {"text": "Nanabhai Fakirchand", "label": "RESPONDENT", "start_char": 5006, "end_char": 5025, "source": "ner", "metadata": {"in_sentence": "The suit was filed by Manilal Lallubhai and his widow Bai Mani against Nanabhai Fakirchand for partition and allotment of one-half share of the suit house and the moveable properties mentioned in the plaint."}}, {"text": "Fakirchand", "label": "OTHER_PERSON", "start_char": 5148, "end_char": 5158, "source": "ner", "metadata": {"in_sentence": "One Fakirchand had three sons, ."}}, {"text": "Nathubhai", "label": "PETITIONER", "start_char": 5177, "end_char": 5186, "source": "ner", "metadata": {"in_sentence": "Nathubhai, Lallubhai and Nanabhai.", "canonical_name": "N athubhai"}}, {"text": "Nanabhai", "label": "PETITIONER", "start_char": 5202, "end_char": 5210, "source": "ner", "metadata": {"in_sentence": "Nathubhai, Lallubhai and Nanabhai.", "canonical_name": "Nanabhai"}}, {"text": "Nanabhai", "label": "PETITIONER", "start_char": 5213, "end_char": 5221, "source": "ner", "metadata": {"in_sentence": "Nanabhai is the defendant whose legal representatives are the present appellants in this Court.", "canonical_name": "Nanabhai"}}, {"text": "Manila", "label": "GPE", "start_char": 5327, "end_char": 5333, "source": "ner", "metadata": {"in_sentence": "Lallubhai's son, Manila!,"}}, {"text": "24th January, 1956", "label": "DATE", "start_char": 5942, "end_char": 5960, "source": "ner", "metadata": {"in_sentence": "On 24th January, 1956 Bai Kashi, the widow of Nathubhai, died while the family continued to be a joint undivided Hindu family."}}, {"text": "25th April, 1955", "label": "DATE", "start_char": 6400, "end_char": 6416, "source": "ner", "metadata": {"in_sentence": "The respondents also questioned the validity of a sale deed executed by Bai Kashi on 25th April, 1955 in favour of the appellants of her share in the immoveable property as it was not for legal necessity ."}}, {"text": "SUPREMJl COURT REPORTS (1977]", "label": "COURT", "start_char": 6872, "end_char": 6901, "source": "ner", "metadata": {"in_sentence": "So far as the suit house was concerned it was divided though not by metes and bounds and the\n\nSUPREMJl COURT REPORTS (1977] 2 s.C.R.\n\n.brothers livd in separate portions of the house."}}, {"text": "N athubhai", "label": "PETITIONER", "start_char": 7868, "end_char": 7878, "source": "ner", "metadata": {"in_sentence": "The trial court found that the three brothers had become separate in status before the deaths of N athubhai and Lallubhai.", "canonical_name": "N athubhai"}}, {"text": "Bai KasM", "label": "OTHER_PERSON", "start_char": 9962, "end_char": 9970, "source": "ner", "metadata": {"in_sentence": "The averment in the paiint\n\nis that on 24th January, 1956 Bai KasM the widow of Nathubhai died .aqd Nanabhai continued as the µiember of the joint Hindu family.", "canonical_name": "Bai Kashi"}}, {"text": "Rights to Property Act, 1937", "label": "STATUTE", "start_char": 10546, "end_char": 10574, "source": "regex", "metadata": {}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 10743, "end_char": 10769, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gujarat", "label": "GPE", "start_char": 11030, "end_char": 11037, "source": "ner", "metadata": {"in_sentence": "On the question as to who the heirs of Nathubhai are at the time of the death of Bai Kashi the trial court held that as the parties were in Gujarat the Mayukh school will govern the inheritance and in Gujarat the Mayukh school overrules the Mitakshara school and therefore full brothers inherit along with sons Q_f full brothers who are dead and therefore after the death of Bai Kashi the defendant and plaintiff No."}}, {"text": "Nathubha", "label": "PETITIONER", "start_char": 11348, "end_char": 11356, "source": "ner", "metadata": {"in_sentence": "1 would inherit together to the share of Nathubha; i. The court held that the claim of the plaintiff for l /2 share should be decreed though there is no specific claim on the plea of separation and heirship.", "canonical_name": "N athubhai"}}, {"text": "s 1", "label": "PROVISION", "start_char": 13577, "end_char": 13580, "source": "regex", "metadata": {"statute": null}}, {"text": "s 1", "label": "PROVISION", "start_char": 13951, "end_char": 13954, "source": "regex", "metadata": {"statute": null}}, {"text": "s 1", "label": "PROVISION", "start_char": 15070, "end_char": 15073, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_925_931_EN", "year": 1977, "text": "MYSORE STATE ROAD TRANSPORT CORPORATION A v.\n\nBABAJAN CONDUCTOR & ANR.\n\nFebruary 8, 1977\n\n[M. H. BEG, C.J. AND P. s. KAILASAM, J.]\n\nCo11stilutio11 of India Ari. 226--Inherent powers of the lligh Gour/ 10 grant relief in individual cases of hardship, when permissible-Road Transport Corporation Act, 1950-And Notification made by the Mysore Government 11/s 34 (!)-Scope of-Winding up of a department operates as a discharge of its .servants.\n\nRespondent I, a conductor of the Mysore Government Road Transport Department was dismissed for misconduct on 25-1-1961.\n\nThe legality of the\n\nsaid dismissal order was questioned in the High Court under Art. 226 with a C further prayer to declare that he had continued in service since the date of his suspension and commencement of disciplinary proceedings.\n\nThe I:Tigb Court allowed the writ petition on 11-9-1964 and quashed rhe dismissal order with an Observation viz. \"It is further ordered that this is without prejudice to the holding of fresh enquiry if they consider the same necessary\".\n\nOn 1-8-1961. the Road Transport Corporation was constituted and the Government Road Trans- port Department was abolished. Such of the employees who had exercised their .option as per the notice dated 23-6-1961, were taken over by the appcllnnt\n\ncorporation.\n\nThe respondent No. 1 was not given the option a\" he was dis- D missed by that date. On a complaint under the Contempt of Courts Act against respondent 2 and the appellant, that there was disobedience to the order of the High Court dated 11-9-1964, the respondent 1 was paid 1be salaiy by the State\n\nGovernment for the period 25-1-1961 to 31-7-1971. Since he was not paid back\n\nsalary and allowances and also the salary due from 1-8-1961, the respondent Jiled a writ petition No. 1579 I 66 which was again allowed.\n\nOn a concession m11de by the counsel for the State Government that the State Government was willing to make available to the petitioner an option to become an employee of the appellant corporation, the High Court held : \"Notice shall be in the same E form in which it was served on other employees and with a month's time to exercise his option. ' If he exercises his option to become an employee of the <:orporation the petitioner will have, all the, benefits such as continuity in service, seniority, the benefit o~ the old conditions of service applicable in Mysore Government Road Transport Department. The petitioner will also be entitled to the saiary for the period~ between August l, 1961 and the date of his appointment as an employee, of the corporation\". On appeal by special leave by the corporation, the Cami,\n\nHELD: (1) The order of the High Court dated 11-9-1964 could not possibly amount to a declaration that the first respondent had continued in the service of either the Mysore Government or had become the servant of the t1ppellant corporation, a separate legal entity which came into existence by mea, ns\n\nof a Notification under s. 3 of the Road Transport Corporation Act, 1950.\n\nAs a separate legal entity the corporation could not be said to ha•ve stepped automatically into the shoes of the Mysore Road Transport Department, there being .RO provision of the Act or Rules made thereunder to that effect.\n\n[927 A-DJ\n\n(2) The declaratory relief asked for not having been granted, that relief would be deemed to have been refused.\n\nFailure to go in appeal against that decision operates as a bar for claiming sueli. a relief in the subsequent writ petition. [931 Bl\n\n(3) The effect of the High Courts~ order setting aside the dismissal was thllt the .stigma of dismissal was removed from the .record of the first respond ei;•.\n\nH 'The winding of the department on the facts of the case, operates as the discharge of the respondent. The respondent cannot be deemed to be the corporation's employee inasmuch as he has not exercised any option, nor did he askfor a notice of option in the original writ petition filed by him. [931 D-EJ\n\nMysore State Road Transport Corporafion v. A. Krishna Rao & Anr., C.A.\n\nNo. 1720 of 1967 S.C. decided on 6-8-1969, followed.\n\n( 4) Neither the Act nor the two notifications under s. 34(1) of the Act contain any provision which could entitle an employee of the Mysore Governmont Road Transport Departmen~ to get a notice automatically.\n\nThe notifications could apply only to those persons who, on 1-8-196i bad already exercised an option to serve under the corporation in pursuance of notice issued to them.\n\nIt makes no provision for persons to whom for any considerable reason, no notice has been issued. [928 D-Fl\n\n(5) When the first resporulent applied in the High Court for another wri< or direction under Art. 226 in 1966, the High Court over-stepped the limits of mere interpretation or application of the law and indulged in what is nothing short of legislation byl directing the State Government to serve a notice. call in upon the first respOndent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporatior> in the same way in which other employees Qf the Transport Department had been asked to exercise their option. [929 C-EJ\n\n(6) The State Government owed no duty to the first respondent to pay him after transport department was wound up in the absence of any contract to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the corporation to do so. [929 G-Hl\n\n(7) In order to compel the corporation to do anythlng only a general direction u/s 34 of the Act could be given by the Government. There neither could b~ a .speci'.11 direction with regard to a particular case nor was any special direction given .by the Government for any such case.\n\nThe High Court could !10t take upon itself the power to fill any gap in the provision of the Act, even if there be one, and compel the Government to perform a function which the Government was i:ot under '.!UY ind. of obligation to ?\\scharge. The High Court could not give a specific drrecl!on to make a provis10n to meet what it thought was required in a particular or individual case if such a case fell outside the provisions made by the Act and the rules. There is no justification at all for such assumption of. powers by the High Court. [929 H, 930 A-Bl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1919 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated 15-12-1967 of the Mysore High Court in Writ Petition No. 1579 of 1966.\n\nShyamla (Mrs.) Pappu and E. K. Jose-ph for the Appellants\n\nR. B. Datar for Respondent No. 1.\n\nN. Nettar for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThe Mysore State Road Transport Corporation is the appellant by special leave before us.\n\nThe first respondent, a conductor in the Mysore Government Road Transport Department, had petitioned in the High Court under Article 226 against the appellant and the State of Mysore and asked it to quash an order of his dismissal, passed on 25-1-1961, in disciplinary proceedings taken against him at a time when he was a servant of the Mysore Government Road Transport Department.\n\nThe Government Department was abolished on 1-8-1961. But, before this event happened, the Mysore Government had sent notices to its employees on 23-6-61 proposing to transfer alt those persons who were actually in its service on the date of issue of\n\nthese notices and had accepted offers of appointment a~ employees of the Corporation. The first respondent, having been already dismi•ssed for misconduct on 25-1-1961, was not the recipient of one of these .notices to exercise an option.\n\nIn his writ petition, questioning the order of his dismissal, the first respondent had also asked for a declaratlion that he had continec_l i!1\n\nservice since the date of his suspension and commencement of d1sc1phnary proceedings.\n\nThe High Court of Mysore merely qushed the dismissal order of 25-1-1961 and the order of suspens10n dated 23-7-1960. It did not grant the declaratory relief asked for.\n\nIt observed : \"It is further ordered that this is without prejudice to the holding of fresh enquiry if they consider the .same necessary\".\n\nThi•s . order could not possibly amount to a declarat10n that the first respon- dent had continued in the service of either the Mysore Government or bad become the servant of the appellant Corporatfon, a separate legal\n\n1entity which came into existence by means of a Notification under section 3 of the Road Transport Corporation~ Act, 1950. <.l1erina1'~~~- referred to as 'the Act') . As a separate legal entity, the Corporat::)!l could not be said to have stepped automatically into the shoes of the Mysore Road Transport Department.\n\nNo provision of the Act or rules made thereunder has been shown to us which could have that effect.\n\nThe first respondent, however, relied upon a Notification under section 34 of the Act which contains, inter alia, clause 3 which preserves :\n\n\"(3). All rights and liabilities which have accrued or are\n\n1incurred or which may accrue or may be incurred under any contract made by the State Government or by any Officer of the Road Transport Department, excepting the Bangalore\n\nTrnsport Service Division prior to the First August 1961, which would have been the rights and liabilities of the Corporation.\"\n\nHe also cites another Notification which reads as follows :-\n\n\"l. The _employees of the Mysore Government Road Transport Department who have opted to serve under the Corporation in pursuance of the Notices issued to them .by !he Government shall be employed by the Corporatlion sub- 1ect to such regulations as may be made by it under section 45(2) (c) of the Road Transport Corporations Act, 1950 and also subject to the following conditions, namely :-\n\n(a) The transfer of the service of the employees of the Mysore. Government Road Transport Department to the Corporation shall not amount to interruption of service and shall not entail any loss of seniority pre-\n\nvi•ously held by such employees.\n\n(b) The terms and conditions of service applicable to such transferred employees including those relating to\n\nProvident Fund, Gratuity and other benefits shall not in any way be less favourable than those applicable to them immediately before the transfer.\n\n( c) Benefits regarding leave and other conditions of servce available to such transferred employees immediately before the transfer shall be conr.inued.\n\n(d) In the event of retrenchment of such transferred employees, in determining the retrenchment compensation, if any, length of service rendered by such transferred employees before the transfer shall also be considered.\n\n( e) Changes in the conditions of service of the transferred employees shall not be effected to their disadvantage without the prior approval of the Government.\n\n2. In respect of all disciplinary proceed!ings or appeals arising therefrom pending immediately before 1st August, D 1961, the Corporation or such Officer or Offic;:rs as may be designated by it shall be the disciplinary authority competent to pass appropriate orders in accordance with the relevant mies applicable to them before the transfer.\".\n\nIt 1is clear that the last mentioned notification could apply only to those persons who, on 1-8-1961, had already exercised an option to E serve under the Corporation in pursuance of notices issued t-o them.\n\nIt makes no provision for persons to whom, for any conceivable reason, no notice had been issued.\n\nNeither the Act nor the two notifications u/s. 34(1) of the Act mentioned above contained any provisions which could entitle an employee of the Mysore Government Road Transport Department to get a notice automatically.\n\nIt appears that the notices were issued only in exercise of the executive power of the Government.\n\nF Clause (7) of one of the two notifications of 1-8-1961 laid down:\n\n\"(7) The members of the staff of the Mysore Government Road Transport Department, excepting those who are serving in connection with the affairs of the Bangalore Trans- port Service Division, who have opted to serve under the Corporation with effect from 1st August, 1961, in response to the notice issued to them by Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(ii) (c) of the Road Transport Corporations Act and subject to such assurances as have been\n\ngliven to them by Government in their notice No. HD 8 TRC 60 dated 23rd June 1961.\"\n\nThis provision also relates to persons who had already exercised options under notices issued to them already.\n\nIt may be that there was a lacuna in the rules or in the Act so that cases like those of the first respondent were not provided for at all in the Act or in the rules.\n\n•. -\n\n'-,_\n\n__ ,_ -~.,.\", _, --ii-\"' .. -(-\"'\"'\"--*' ..._\"..,\n\n- ~-,~-~---- \"i ><-~> =··/·&l~~-~\"~1\"1\"'('~-:_~:-·~·*k-'.'\"Y'•1ll>ii;:t.ll J\\IJl!f ll\n\n'\"!'.\"\n\nLearned counsel for the first respondent relied strongly on s. 34 of the Act which lays down as follows :-\n\n\"34(1). The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of ; its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks.\n\n(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section ( 1) except with the previous permiss;'on of the State Government.\"\n\nThis section enables only general directions to be given.\n\nWhen the first respondent applied in the High Court for another writ or direction under Art. 226 in 1966, the High Court seems to us to have over-stepped the limits of mere interpretation or application of the law and to have.indulged in what is nothing short of legislation.\n\nThe High Court directed the State Government to serve a notice calling D upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department of that State had been asked to exercise their options.\n\nThe High Court observed :- ·\n\n\"It is clear that the State Government were under a duty to make available to him that option when the order by which he was illegally dismissed was set aside, Government are therefore, in our opinion, right in making available to the petitioner that option at least now.\n\nWe, therefore, issue a direction that that option will be made available to the petitioner within fifteen days from this date\".\n\nWe also find that, after proceedings under the Contempt of F Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of a dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation.\n\nThe State Government owed no duty to the first respondent to pay G him after its transport department was wound up.\n\nNo term of any contract was placed before the Court to show what duty the Government could have to employ the first respondent after its transport department was wound up or to direct the Corporation to do so, We do not know what option the State Government has given to the first respondent after the writ petition was filed.\n\nIf it had already given any option to him, there was no point in directing it to give another H option, In order to compel the Corporation to do anything, as already indicated, only a general direction u/s. 34 of the Act, set out\n\nab_ove, could be given by the Government. There neither could be a\n\nspecific direction with regard to a particular case nor was any specific direction given by the Government for any such case. The High Court could not take upon itself the power to fill any gap in the provision of the Act, even if we were to assume that there was one here, and c9mpel the Government to perform a function which the Government was under any kind of obligation to do.\n\nThe High Court could not give a specific direction to make provision to meet what it thought was required in a particular or individual q1se if such a case fell outside the provisions made by the Act and the rules. We can find no justification at all for such assumption of powers by the High Court.\n\nMrs; Shyamla Pappu learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation v. Krishna Rao & Anr. ('), where this Court held as follows:-\n\nIt is quite clear the employees of the Bangalore Road Transport Serv!ce of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dho/akia v. The Scindia Steam Navigation Co. [1961 (2)\n\nSCR 811], or automatically, become the employees of the Corporation.\n\nThe Corporation was directed to take over only those of the employees who opted for its service and to give to them the same terms and conditions as were enjoyed by them while in the service of the Mysore Government. Thus,\n\nthe condition precedent. of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1951, was the giving of the option to him and his exercise thereof.\n\nThere is no dispute that Respondent 1 was not given the\n\nnoice of option, presumably because, rightly or wrongly, he was not regarded as having been in the service of the Government's Road Transport Service immediately before the Corporation came into being.\n\nIt cannot also be disputed that he never asked for a notice of option on the ground that he continued to be in iliat service.\n\nThat he did not in fact exercise the option is an accepted fact.\n\nThat being so, it cannot be said that under the said notification the Corporation was required to have him as its employee or iliat his service was transferred to the Corporation thereunder, tile condition precedent to such employment or transfer not having been complied with.\"\n\nThis Court also held there :\n\nJn our view, the Labour Court could not, on the posi- . tion stated above, treat him as the Corporation's employee\n\nand on that footing grant him the relief which it did.\n\nOnce it is found that he did not become the Corporation's\n\n(l) CA. No. 1720 of 1967 given on 6-8-1969.\n\nMY~ORE ROAD TRANSP. CORP. V. BABAJAN (Beg, C.J.) 931\n\nemployee, the Corporation could not be held liable to pay him the wages for the period from March 6, 1960, to April 19, 1962.\" .\n\nThe case cited by Mrs. Pappu arose out of a claim under section 33(c) (2) of the Industrial Disputes Act, 1947, but the views e.xpressed there accord with ours.\n\nWe respectfully adopt the same reasoning.\n\nIndeed, in the case now before us, the Corporation's legal position rests <m a stronger footing than it did in the case cited above inasmuch as the declaratory relief asked for by the first respondent against the Corporation had not been granted.\n\nThat relief would, therefore, be deemed to have been refused.\n\nThe first respondent did not himself go up in appeal against that decision.\n\nHe cannot claim such a relief C in the subsequent writ petition now before us.\n\nThe facts set out above show that there were ample grounds for discriminating between a person against whom an order of dismissal had been passed, so that he was no longer serving in the transport department, and others who were not in the same position but were actually in the service of the transport department of the Government. It may D be that the effect of the High Court's order, se:ting aside the dismissal, was that the stigma of dismissal was removed from the record of the first respondent.\n\nNevertheless, as no order granting a declaratory telief he had asked for was given to the first respondent, he could not be deemed to be. a servant even of the State Government after the department in which he was working was wound up.\n\nThe most he could say was that he was not dismissed.\n\nThe winding up of the depart- E ment would, on the facts stated above, 'operate as the discharge of the respondent who could, if so advised, seek whatever other means of redress he may stiJJ have under the law.\n\n• / Consequently, we allow this appeal, set aside the judgment a1id ' order of the High Court.\n\nThe parties will bear their own costs.\n\nS.R.\n\nAppeal allowed.", "total_entities": 69, "entities": [{"text": "MYSORE STATE ROAD TRANSPORT CORPORATION", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "MYSORE STATE ROAD TRANSPORT CORPORATION", "offset_not_found": false}}, {"text": "BABAJAN CONDUCTOR & ANR", "label": "RESPONDENT", "start_char": 46, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "BABAJAN CONDUCTOR & ANR", "offset_not_found": false}}, {"text": "February 8, 1977", "label": "DATE", "start_char": 72, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "February 8, 1977\n\n[M. H. BEG, C.J. AND P. s. KAILASAM, J.]\n\nCo11stilutio11 of India Ari."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 91, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "P. s. KAILASAM, J.", "label": "JUDGE", "start_char": 111, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Road Transport Corporation Act, 1950", "label": "STATUTE", "start_char": 267, "end_char": 303, "source": "regex", "metadata": {}}, {"text": "s 34", "label": "PROVISION", "start_char": 354, "end_char": 358, "source": "regex", "metadata": {"linked_statute_text": "Road Transport Corporation Act, 1950", "statute": "Road Transport Corporation Act, 1950"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 644, "end_char": 652, "source": "regex", "metadata": {"linked_statute_text": "Road Transport Corporation Act, 1950", "statute": "Road Transport Corporation Act, 1950"}}, {"text": "I:Tigb Court", "label": "COURT", "start_char": 805, "end_char": 817, "source": "ner", "metadata": {"in_sentence": "The I:Tigb Court allowed the writ petition on 11-9-1964 and quashed rhe dismissal order with an Observation viz. \""}}, {"text": "11-9-1964", "label": "DATE", "start_char": 847, "end_char": 856, "source": "ner", "metadata": {"in_sentence": "The I:Tigb Court allowed the writ petition on 11-9-1964 and quashed rhe dismissal order with an Observation viz. \""}}, {"text": "1-8-1961", "label": "DATE", "start_char": 1042, "end_char": 1050, "source": "ner", "metadata": {"in_sentence": "On 1-8-1961."}}, {"text": "Government Road Trans- port Department", "label": "ORG", "start_char": 1107, "end_char": 1145, "source": "ner", "metadata": {"in_sentence": "the Road Transport Corporation was constituted and the Government Road Trans- port Department was abolished."}}, {"text": "23-6-1961", "label": "DATE", "start_char": 1239, "end_char": 1248, "source": "ner", "metadata": {"in_sentence": "Such of the employees who had exercised their .option as per the notice dated 23-6-1961, were taken over by the appcllnnt\n\ncorporation."}}, {"text": "On a complaint under the Contempt of Courts Act", "label": "STATUTE", "start_char": 1382, "end_char": 1429, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "25-1-1961", "label": "DATE", "start_char": 1623, "end_char": 1632, "source": "ner", "metadata": {"in_sentence": "On a complaint under the Contempt of Courts Act against respondent 2 and the appellant, that there was disobedience to the order of the High Court dated 11-9-1964, the respondent 1 was paid 1be salaiy by the State\n\nGovernment for the period 25-1-1961 to 31-7-1971."}}, {"text": "31-7-1971", "label": "DATE", "start_char": 1636, "end_char": 1645, "source": "ner", "metadata": {"in_sentence": "On a complaint under the Contempt of Courts Act against respondent 2 and the appellant, that there was disobedience to the order of the High Court dated 11-9-1964, the respondent 1 was paid 1be salaiy by the State\n\nGovernment for the period 25-1-1961 to 31-7-1971."}}, {"text": "Mysore Government Road Transport Department", "label": "ORG", "start_char": 2375, "end_char": 2418, "source": "ner", "metadata": {"in_sentence": "If he exercises his option to become an employee of the <:orporation the petitioner will have, all the, benefits such as continuity in service, seniority, the benefit o~ the old conditions of service applicable in Mysore Government Road Transport Department."}}, {"text": "August l, 1961", "label": "DATE", "start_char": 2495, "end_char": 2509, "source": "ner", "metadata": {"in_sentence": "The petitioner will also be entitled to the saiary for the period~ between August l, 1961 and the date of his appointment as an employee, of the corporation\"."}}, {"text": "Mysore Government", "label": "ORG", "start_char": 2803, "end_char": 2820, "source": "ner", "metadata": {"in_sentence": "On appeal by special leave by the corporation, the Cami,\n\nHELD: (1) The order of the High Court dated 11-9-1964 could not possibly amount to a declaration that the first respondent had continued in the service of either the Mysore Government or had become the servant of the t1ppellant corporation, a separate legal entity which came into existence by mea, ns\n\nof a Notification under s. 3 of the Road Transport Corporation Act, 1950."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2964, "end_char": 2968, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport Corporation Act, 1950", "label": "STATUTE", "start_char": 2976, "end_char": 3012, "source": "regex", "metadata": {}}, {"text": "Mysore Road Transport Department", "label": "ORG", "start_char": 3129, "end_char": 3161, "source": "ner", "metadata": {"in_sentence": "As a separate legal entity the corporation could not be said to ha•ve stepped automatically into the shoes of the Mysore Road Transport Department, there being .RO provision of the Act or Rules made thereunder to that effect."}}, {"text": "6-8-1969", "label": "DATE", "start_char": 4073, "end_char": 4081, "source": "ner", "metadata": {"in_sentence": "1720 of 1967 S.C. decided on 6-8-1969, followed."}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 4147, "end_char": 4155, "source": "regex", "metadata": {"statute": null}}, {"text": "1-8-196i", "label": "DATE", "start_char": 4364, "end_char": 4372, "source": "ner", "metadata": {"in_sentence": "The notifications could apply only to those persons who, on 1-8-196i bad already exercised an option to serve under the corporation in pursuance of notice issued to them."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4678, "end_char": 4686, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore State Road Transport Corporatior", "label": "ORG", "start_char": 5011, "end_char": 5050, "source": "ner", "metadata": {"in_sentence": "call in upon the first respOndent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporatior> in the same way in which other employees Qf the Transport Department had been asked to exercise their option. ["}}, {"text": "s 34", "label": "PROVISION", "start_char": 5567, "end_char": 5571, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 6470, "end_char": 6487, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated 15-12-1967 of the Mysore High Court in Writ Petition No."}}, {"text": "Shyamla", "label": "PETITIONER", "start_char": 6524, "end_char": 6531, "source": "ner", "metadata": {"in_sentence": "Shyamla (Mrs.) Pappu and E. K. Jose-ph for the Appellants\n\nR. B. Datar for Respondent No.", "canonical_name": "Shyamla Pappu"}}, {"text": "Pappu", "label": "OTHER_PERSON", "start_char": 6539, "end_char": 6544, "source": "ner", "metadata": {"in_sentence": "Shyamla (Mrs.) Pappu and E. K. Jose-ph for the Appellants\n\nR. B. Datar for Respondent No."}}, {"text": "E. K. Jose", "label": "LAWYER", "start_char": 6549, "end_char": 6559, "source": "ner", "metadata": {"in_sentence": "Shyamla (Mrs.) Pappu and E. K. Jose-ph for the Appellants\n\nR. B. Datar for Respondent No."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 6583, "end_char": 6594, "source": "ner", "metadata": {"in_sentence": "Shyamla (Mrs.) Pappu and E. K. Jose-ph for the Appellants\n\nR. B. Datar for Respondent No."}}, {"text": "N. Nettar", "label": "LAWYER", "start_char": 6618, "end_char": 6627, "source": "ner", "metadata": {"in_sentence": "N. Nettar for Respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 6695, "end_char": 6698, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThe Mysore State Road Transport Corporation is the appellant by special leave before us."}}, {"text": "Mysore State Road Transport Corporation", "label": "PETITIONER", "start_char": 6710, "end_char": 6749, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThe Mysore State Road Transport Corporation is the appellant by special leave before us.", "canonical_name": "MYSORE STATE ROAD TRANSPORT CORPORATION"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 6921, "end_char": 6932, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Mysore", "label": "ORG", "start_char": 6963, "end_char": 6978, "source": "ner", "metadata": {"in_sentence": "The first respondent, a conductor in the Mysore Government Road Transport Department, had petitioned in the High Court under Article 226 against the appellant and the State of Mysore and asked it to quash an order of his dismissal, passed on 25-1-1961, in disciplinary proceedings taken against him at a time when he was a servant of the Mysore Government Road Transport Department."}}, {"text": "23-6-61", "label": "DATE", "start_char": 7325, "end_char": 7332, "source": "ner", "metadata": {"in_sentence": "But, before this event happened, the Mysore Government had sent notices to its employees on 23-6-61 proposing to transfer alt those persons who were actually in its service on the date of issue of\n\nthese notices and had accepted offers of appointment a~ employees of the Corporation."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 7906, "end_char": 7926, "source": "ner", "metadata": {"in_sentence": "The High Court of Mysore merely qushed the dismissal order of 25-1-1961 and the order of suspens10n dated 23-7-1960."}}, {"text": "23-7-1960", "label": "DATE", "start_char": 8008, "end_char": 8017, "source": "ner", "metadata": {"in_sentence": "The High Court of Mysore merely qushed the dismissal order of 25-1-1961 and the order of suspens10n dated 23-7-1960."}}, {"text": "Corporatfon", "label": "PETITIONER", "start_char": 8400, "end_char": 8411, "source": "ner", "metadata": {"in_sentence": "order could not possibly amount to a declarat10n that the first respon- dent had continued in the service of either the Mysore Government or bad become the servant of the appellant Corporatfon, a separate legal\n\n1entity which came into existence by means of a Notification under section 3 of the Road Transport Corporation~ Act, 1950."}}, {"text": "section 3", "label": "PROVISION", "start_char": 8498, "end_char": 8507, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 8914, "end_char": 8924, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 8964, "end_char": 8972, "source": "regex", "metadata": {"statute": null}}, {"text": "Bangalore", "label": "GPE", "start_char": 9215, "end_char": 9224, "source": "ner", "metadata": {"in_sentence": "All rights and liabilities which have accrued or are\n\n1incurred or which may accrue or may be incurred under any contract made by the State Government or by any Officer of the Road Transport Department, excepting the Bangalore\n\nTrnsport Service Division prior to the First August 1961, which would have been the rights and liabilities of the Corporation.\""}}, {"text": "section 45(2)", "label": "PROVISION", "start_char": 9690, "end_char": 9703, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport Corporations Act, 1950", "label": "STATUTE", "start_char": 9715, "end_char": 9752, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mysore. Government Road Transport Department", "label": "ORG", "start_char": 9866, "end_char": 9910, "source": "ner", "metadata": {"in_sentence": "he Government shall be employed by the Corporatlion sub- 1ect to such regulations as may be made by it under section 45(2) (c) of the Road Transport Corporations Act, 1950 and also subject to the following conditions, namely :-\n\n(a) The transfer of the service of the employees of the Mysore."}}, {"text": "1st August, D 1961", "label": "DATE", "start_char": 10957, "end_char": 10975, "source": "ner", "metadata": {"in_sentence": "In respect of all disciplinary proceed!ings or appeals arising therefrom pending immediately before 1st August, D 1961, the Corporation or such Officer or Offic;:rs as may be designated by it shall be the disciplinary authority competent to pass appropriate orders in accordance with the relevant mies applicable to them before the transfer.\"."}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 11554, "end_char": 11562, "source": "regex", "metadata": {"statute": null}}, {"text": "Bangalore Trans- port Service Division", "label": "ORG", "start_char": 12051, "end_char": 12089, "source": "ner", "metadata": {"in_sentence": "F Clause (7) of one of the two notifications of 1-8-1961 laid down:\n\n\"(7) The members of the staff of the Mysore Government Road Transport Department, excepting those who are serving in connection with the affairs of the Bangalore Trans- port Service Division, who have opted to serve under the Corporation with effect from 1st August, 1961, in response to the notice issued to them by Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(ii) (c) of the Road Transport Corporations Act and subject to such assurances as have been\n\ngliven to them by Government in their notice No."}}, {"text": "1st August, 1961", "label": "DATE", "start_char": 12154, "end_char": 12170, "source": "ner", "metadata": {"in_sentence": "F Clause (7) of one of the two notifications of 1-8-1961 laid down:\n\n\"(7) The members of the staff of the Mysore Government Road Transport Department, excepting those who are serving in connection with the affairs of the Bangalore Trans- port Service Division, who have opted to serve under the Corporation with effect from 1st August, 1961, in response to the notice issued to them by Government shall be employed by the Corporation subject to such regulations as may be made by it under section 45(ii) (c) of the Road Transport Corporations Act and subject to such assurances as have been\n\ngliven to them by Government in their notice No."}}, {"text": "section 45(ii)", "label": "PROVISION", "start_char": 12319, "end_char": 12333, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport Corporations Act", "label": "STATUTE", "start_char": 12345, "end_char": 12376, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "23rd June 1961", "label": "DATE", "start_char": 12489, "end_char": 12503, "source": "ner", "metadata": {"in_sentence": "HD 8 TRC 60 dated 23rd June 1961.\""}}, {"text": "s. 34", "label": "PROVISION", "start_char": 13005, "end_char": 13010, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13857, "end_char": 13865, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore State Road Transport Corporation", "label": "ORG", "start_char": 14231, "end_char": 14270, "source": "ner", "metadata": {"in_sentence": "The High Court directed the State Government to serve a notice calling D upon the first respondent to exercise his option on the question whether he wanted to become an employee of the Mysore State Road Transport Corporation in the same way in which other employees of the Transport Department of that State had been asked to exercise their options."}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 14913, "end_char": 14933, "source": "ner", "metadata": {"in_sentence": "We also find that, after proceedings under the Contempt of F Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of a dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation."}}, {"text": "25-1-61", "label": "DATE", "start_char": 14983, "end_char": 14990, "source": "ner", "metadata": {"in_sentence": "We also find that, after proceedings under the Contempt of F Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of a dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation."}}, {"text": "1-8-61", "label": "DATE", "start_char": 15072, "end_char": 15078, "source": "ner", "metadata": {"in_sentence": "We also find that, after proceedings under the Contempt of F Courts Act against the Government of Mysore, the petitioner had been paid his salary between 25-1-61, the date of a dismissal which was declared to be illegal by the High Court, and 1-8-61, when the Mysore Government Road Transport Department was abolished and its place taken by the State Road Transport Corporation."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15858, "end_char": 15863, "source": "regex", "metadata": {"statute": null}}, {"text": "Shyamla Pappu", "label": "PETITIONER", "start_char": 16643, "end_char": 16656, "source": "ner", "metadata": {"in_sentence": "Mrs; Shyamla Pappu learned counsel for the appellant has sought support from a judgment of this Court in Mysore State Road Transport Corporation v. Krishna Rao & Anr. ('),", "canonical_name": "Shyamla Pappu"}}, {"text": "Bangalore Road Transport Serv!ce of the Government", "label": "ORG", "start_char": 16885, "end_char": 16935, "source": "ner", "metadata": {"in_sentence": "where this Court held as follows:-\n\nIt is quite clear the employees of the Bangalore Road Transport Serv!ce of the Government did not either under a statutory provision, as in Jestamani Gulabrai Dho/akia v. The Scindia Steam Navigation Co. [1961 (2)\n\nSCR 811], or automatically, become the employees of the Corporation."}}, {"text": "October 1, 1951", "label": "DATE", "start_char": 17527, "end_char": 17542, "source": "ner", "metadata": {"in_sentence": "of an employee of the Road Transport Service of the Government of Mysore being transferred and regarded as the employee of the Corporation as from October 1, 1951, was the giving of the option to him and his exercise thereof."}}, {"text": "MY~ORE ROAD TRANSP. CORP. V. BABAJAN", "label": "PETITIONER", "start_char": 18646, "end_char": 18682, "source": "ner", "metadata": {"in_sentence": "MY~ORE ROAD TRANSP."}}, {"text": "section 33(c)", "label": "PROVISION", "start_char": 18886, "end_char": 18899, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 18911, "end_char": 18940, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1977_2_932_936_EN", "year": 1977, "text": "BHA VNAGAR MUNICIPALITY\n\nALJBHAI KARlMBHAI & OTHERS\n\nFebruary 8, 1977\n\n(P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nIndustrial. Dispufr Act, S. 33 ( 1 )(a), whet/1er contravened by retrenchment of workers d1tectly mvolved in dispute pending before Tribunal-Contravention 0! s. 33, wl1ether a11to111atically leads to reinstatement uf retrenched workers.\n\nAn industrial dispute between the appellant and its workmen including the respondents, was pending before the Industrial Tribunal. The dispute, inter alia, related to the demand for permanent status of the respondeilts who were daily\n\nra_ted workers of the water works section of the Municipality. Meanwhile, without obtaining the Tribunal's prior permission, the appellant retrenched the\n\nrepondents. On a \".ornplaint by ihe respondents u/s. 33-.( of the Industrial Disputes Act, the Tnbunal made an award holding that tlie appellant had contravened s. 33(1 )(a) of the Act, and directed reinstatement of the respondents.\n\nThe complaint was not adjudicated on merits.\n\nThe appellant filed a writ petition which was dismissed i11 /i111i11e by the High Court.\n\nAllowing the appeal, but agreeing that the appellant had contravened s. 33\n\n(1) (a) and that the respondents' complaint u/s. 33(1)(a) was maintainable, the Court restored the respondents' complaint for disposal on merits by the Tribunal.\n\nHELD : ( 1) The character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition must subsist and cannot be altered to their prejudice by putting an end to that temporary condition.\n\nThis could be done only with the express permission of the Tribunal.\n\n[933-G-HI\n\nTile Court further observed :\n\nTo permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication. [936 A-BJ\n\n(2) I11 a complaint under s. 33-A. even if the employer is found to have t:ontravened the provisions of section 33, the Tribunal has to pronounce upon\n\nthe merits of the dispute between the parties. For the purposes of the Act, the\n\ncomplaint under s. 33A takes the form of a reference o~ an industria! disppte by the appropriate authority and the same has to be disposed of rn a ltke ma-nner. f936 C-Dl\n\n( 3) The Tribunal has committed an .eror of i1:1risietion in ordering reinstatement of the respondents and declmmg to ad1udicate the matter and to\n\nmake its award on the merits as required under the law. [93Q DJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 900 of 1976.\n\nAppeal by Special Leave from th~ Judgmet. and Order dated 8-3-1976 of the Gujarat High Court m Spl. Civil Appln. No. 263 of 1976.\n\nP. H. Parekh and (Miss) Manju !etley for the Appellant.\n\ns. c. Agarwal, V. J. Francis and A. P. Gupta for the Respond.ents.\n\n' .•\n\nThe Judgment of the Court was delivered by\n\nGo;; wAMI, J.\n\nThis appeal by special leave at the instance of the Bhavnagar Municipality is directed against the order of the Gujarat High Court dismissing in limine its writ application challenging the award of the Industrial Tribunal, Gujarat, made under section 33A of the Industrial Disputes Act (briefly the Act).\n\nThere was an industrial dispute pending between the Bhavnagar Municipality (briefly the appellant) and its workmen before the Industrial Tribunal in Reference No. 37 of 1974 referred to it under section\n\n10(1) (d) of the Act on March 5, 1974.\n\nThe said industrial dispute related to several demands including the demand for permanent status of the daily rated workers of the Water Works Section of the Municipality who had completed 90 days' service.\n\nWhile the aforesaid industrial dispute was pending before the Tribunal, the appellant, on September 30, 1974, passed orders retrenching 22 daily rated workmen (briefly the respondents) attached to the Water Works Section of the Municipality.\n\nIt is not disputed that the appellant had complied with section 25F of the Act and due retrenchment compensation had been paid to those workers.\n\nOn June 20, 1975, the respondents filed a complaint to the Tribunal under section 33A of the Act for contravention of secfam 3 3 of the Act by the appellant.\n\nNeither party adduced any oral evidence before the Tribunal but relied only upon documents produced before it.\n\nOn October 30, 1975, the Tdbunal made its award holding that the appellant contravened section 33(1) (a) of the Act and, therefore, directed reinstatement of the respondents.\n\nThe appellant preferred a writ application before the High Court which was dismissed in limine, as stated abovle. Hence this appeal by special leave.\n\nTwo questions arise for decision .in this appeal. First, whether the appellent contravened section 33 (I) ( e) of the Act by ordering retrenchment of the respondents who, along with other workers, were directly involved in the industrial dispute pending before the Tribunal. Second, whether contravention of section 33 will automatically lead to an order F of reinstatement of the respondents, as has been held by the Tribunal.\n\nIt is common ground that the appellant did not obtain prior permission of the Tribunal before retrenching the respondents.\n\nIt is vrnll settled that a complaint under section 33A is maintainable only if the employer contravenes section 33 of the Act.\n\nIt is submitted by Mr. Agarwal, on behalf of the respondents, that the G object of section 33 should be borne in mind in considering the question about alteration of conditions of service under secton 33(1) (a) of the Act.\n\nHe submits that since the respondents were directly involved in the dispute and the question of their permanent status from a casual or temporary status formed the subject matter of the dispute. the reference has been made nugatory by the action of the appellant in retrenching them.\n\nMr. Parekh, on the other hand, sub- H mits that retrenchment of the respondents does not involve alteration of conditions of service and hence there is no contravention of section 33 of the Act.\n\n. ~\\\n\nThere is no complaint by Mr. Agarwal that there is any noncompliance by the appellant with section 28F of the Act. Mr. Agarwal further rightly concedes that he cannot bring his case under section 33(1) (b) or under section 33(2) (b) since it is not a case of discharge or dismissal for misconduct.\n\nHis entire submission is based on section 33(1) (a) of the Act.\n\nSection 33 of the Act so far as material for us may be set out :\n\n\"33 ( 1) During the pendency of any .... proceeding before a . . . . . . Tribunal . . . . in respect of an industrial dispute, no employer shall-\n\n( a) in regard to any matter connected with the dispute, alter, to the prejudice of the workm.:n concerned in such dispute, the conditions of service applicable to them immediatelv before the commencement of such proceeding; ,\n\nx x x x\n\nsave with the express permission 111 writing of the authority before which the proceeding is pending\".\n\nThere is a clear prohibition in section 33(1) (a) against altering conditions of service by the employer under the circumstances pecified except with the written permission of the Tribunal or other authority therein described. ·--,\n\nIn order to attract section 33 ( l) (a), the following features must be present :\n\n(l) There is a proceeding in respect of an fodustrial dispute pending before the Tribunal.\n\n(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered.\n\n(3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.\n\n(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.\n\n(5) The alteration of the conditions of service is to the prejudice of the workmen.\n\nThe first feature is admittedly present in this case since action has been taken by the appellant in retrenching the respondents during the pendency of the proceeding before the Tribunal.\n\nThe point that requires consideration is whether the other features are also present in the instant case.\n\n\\ \" ,--\n\nBefore we proceed further we should direct our attention to the A subject matter of the industrial dispute pending before the Tribunal.\n\nIt is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into perma!lent.\n\nTo recapitulate briefly the appellant employed daily rated workers to do the work of boring ad\n\nhand pumps in its Water Works Section. These workers have been m employment for over a year.\n\nThey claimed permanency in their em- B ployment on their putting in more than 90 days' service. They also demanded two pairs of uniform every year, cycle allowance at the rate of Rs. 10/- per month, Provident Fund benefit and National Holidays and other holidays allowed to the other workers. While this particular dispute was pending before the Tribunal, the appellant decided to entrust the work, which had till then been performed by these workers in the Water Works Section, to a contractor. On the employment of the C contractor by the Municipality for the self-same work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment. It is, therefore, olear that by retrenchment of the respondents even the temporary employment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status.\n\nRetrenchment may not, ordinarily, under all circumstances; amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of\n\nthe. conditions of service. In this particular case, however, the subject matter being directly connected with the conversion of the temporary E employment into permanent, tampering with the status quo ante of\n\nthese workers is a clear alteration of the conditions of their service.\n\nThey were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a con~ tractor instead of by these temporary workers, it was incumbent upon F the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their ser-\n\n- vices. The alteration of the method of work culminating in termination of the ervices by way of retrenchment in this case has a direct impact on the adjudication proceeding.\n\nThe alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of tl1e proceeding before G the Tribunal, is in regard to a matter connected with the pending industrial dispute.\n\nThe character of the temporary employment of the respondents being a direct issue before the Tribunal, that condition of employment, however insecure, must subsist during the pendency of the dispute before the Tribunal and cannot be 3'ltered to their prejudice by putting an H end to that temporary condition. This could have been done only with the express permission. of the Tribunal. It goes without saying that the\n\nrespondents were directly concerned in the pending industrial dispute.\n\nNo one also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case.\n\nTo permit rupture in employment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of section 33 which is principally directed to preserve the status quo under specified circumstances in the interest of industrial peace during the adjudication.\n\nWe are, therefore, clearly of opinion that the appellant has contravened the provisions of section 33(1) (a) of the Act and the complaint under se<'tion 33A, at the instance of the respondents, is maintainable. The submission of Mr. l'arekh to the contrary cannot be accepted.\n\nThat, however, does not conclude the matter.\n\nThe Tribunal was clearly in error in not adjudicating the complaint on the merits. It is well settled that in a complaint under section 32A, event if the employer is found to have contravened the provisions of section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties.\n\nThe order passed in an application under section 33A is an award similar to one passed in a reference under section 10 of the Act. The award passed has to be submitted to the Government and the same has to b~ published under section 17 of the Act. For the purposes of the Act the complaint under section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner. The Tribunal has committed an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the Jaw. The High Court was, therefore, not right in dismissing the writ application of the appellant in limine.\n\nWe should also observe that,, in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrenchment by the appellant was \"a g!oss act of victimisation\". ·\n\nIn the result the order of the High Court is set aside. It follows that the award of the Tribunal ordering reinstatement of the respon- F dents falls and is set aside.. We should also add that the, observations of the Tribunal wit11 regard to the question of prosecution of the appellant under sections 31 and 32 of the Act were not at all pertinent in an enquiry under section 33A and ought not to have been made.\n\nThe writ application in the High Court stands allowed to the extent indicated.\n\nThe appeal is allowed as diretted in this order. The complaint under section 33A stands restored to the file of the Tribunal for G disposal on the merits in accordance with law and in the light of this judgment. The appellant, however, shall pay the costs of the respondents as ordered at the time of granting of the Special Leave.\n\nM. ':rt.\n\nAppeal allowed.\n\n' J", "total_entities": 59, "entities": [{"text": "BHA VNAGAR MUNICIPALITY", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "BHAVNAGAR MUNICIPALITY", "offset_not_found": false}}, {"text": "ALJBHAI KARlMBHAI & OTHERS", "label": "RESPONDENT", "start_char": 25, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "ALIBHAI KARlMBHAI & OTHERS", "offset_not_found": false}}, {"text": "February 8, 1977", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "BHA VNAGAR MUNICIPALITY\n\nALJBHAI KARlMBHAI & OTHERS\n\nFebruary 8, 1977\n\n(P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 72, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "S. 33", "label": "PROVISION", "start_char": 137, "end_char": 142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 270, "end_char": 275, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 790, "end_char": 795, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 806, "end_char": 829, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 33(1 )(a)", "label": "PROVISION", "start_char": 901, "end_char": 913, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 1179, "end_char": 1184, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)(a)", "label": "PROVISION", "start_char": 1232, "end_char": 1243, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 1829, "end_char": 1839, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 2025, "end_char": 2030, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 2103, "end_char": 2113, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33A", "label": "PROVISION", "start_char": 2248, "end_char": 2254, "source": "regex", "metadata": {"statute": null}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 2809, "end_char": 2821, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh and (Miss) Manju !"}}, {"text": "Manju !", "label": "LAWYER", "start_char": 2833, "end_char": 2840, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh and (Miss) Manju !"}}, {"text": "c. Agarwal", "label": "LAWYER", "start_char": 2869, "end_char": 2879, "source": "ner", "metadata": {"in_sentence": "s. c. Agarwal, V. J. Francis and A. P. Gupta for the Respond.ents.", "canonical_name": "c. Agarwal"}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 2881, "end_char": 2894, "source": "ner", "metadata": {"in_sentence": "s. c. Agarwal, V. J. Francis and A. P. Gupta for the Respond.ents."}}, {"text": "A. P. Gupta", "label": "LAWYER", "start_char": 2899, "end_char": 2910, "source": "ner", "metadata": {"in_sentence": "s. c. Agarwal, V. J. Francis and A. P. Gupta for the Respond.ents."}}, {"text": "Go;; wAMI", "label": "JUDGE", "start_char": 2984, "end_char": 2993, "source": "ner", "metadata": {"in_sentence": "' .•\n\nThe Judgment of the Court was delivered by\n\nGo;; wAMI, J.\n\nThis appeal by special leave at the instance of the Bhavnagar Municipality is directed against the order of the Gujarat High Court dismissing in limine its writ application challenging the award of the Industrial Tribunal, Gujarat, made under section 33A of the Industrial Disputes Act (briefly the Act)."}}, {"text": "section 33A", "label": "PROVISION", "start_char": 3242, "end_char": 3253, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 3261, "end_char": 3284, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhavnagar Municipality", "label": "ORG", "start_char": 3357, "end_char": 3379, "source": "ner", "metadata": {"in_sentence": "There was an industrial dispute pending between the Bhavnagar Municipality (briefly the appellant) and its workmen before the Industrial Tribunal in Reference No."}}, {"text": "section\n\n10(1)", "label": "PROVISION", "start_char": 3500, "end_char": 3514, "source": "regex", "metadata": {"statute": null}}, {"text": "March 5, 1974", "label": "DATE", "start_char": 3533, "end_char": 3546, "source": "ner", "metadata": {"in_sentence": "37 of 1974 referred to it under section\n\n10(1) (d) of the Act on March 5, 1974."}}, {"text": "September 30, 1974", "label": "DATE", "start_char": 3847, "end_char": 3865, "source": "ner", "metadata": {"in_sentence": "While the aforesaid industrial dispute was pending before the Tribunal, the appellant, on September 30, 1974, passed orders retrenching 22 daily rated workmen (briefly the respondents) attached to the Water Works Section of the Municipality."}}, {"text": "section 25F", "label": "PROVISION", "start_char": 4056, "end_char": 4067, "source": "regex", "metadata": {"statute": null}}, {"text": "June 20, 1975", "label": "DATE", "start_char": 4149, "end_char": 4162, "source": "ner", "metadata": {"in_sentence": "On June 20, 1975, the respondents filed a complaint to the Tribunal under section 33A of the Act for contravention of secfam 3 3 of the Act by the appellant."}}, {"text": "section 33A", "label": "PROVISION", "start_char": 4220, "end_char": 4231, "source": "regex", "metadata": {"statute": null}}, {"text": "October 30, 1975", "label": "DATE", "start_char": 4420, "end_char": 4436, "source": "ner", "metadata": {"in_sentence": "On October 30, 1975, the Tdbunal made its award holding that the appellant contravened section 33(1) (a) of the Act and, therefore, directed reinstatement of the respondents."}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 4504, "end_char": 4517, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 4835, "end_char": 4845, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 5052, "end_char": 5062, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 5340, "end_char": 5351, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 5401, "end_char": 5411, "source": "regex", "metadata": {"statute": null}}, {"text": "Agarwal", "label": "LAWYER", "start_char": 5448, "end_char": 5455, "source": "ner", "metadata": {"in_sentence": "It is submitted by Mr. Agarwal, on behalf of the respondents, that the G object of section 33 should be borne in mind in considering the question about alteration of conditions of service under secton 33(1) (a) of the Act.", "canonical_name": "c. Agarwal"}}, {"text": "section 33", "label": "PROVISION", "start_char": 5508, "end_char": 5518, "source": "regex", "metadata": {"statute": null}}, {"text": "Parekh", "label": "OTHER_PERSON", "start_char": 5938, "end_char": 5944, "source": "ner", "metadata": {"in_sentence": "Mr. Parekh, on the other hand, sub- H mits that retrenchment of the respondents does not involve alteration of conditions of service and hence there is no contravention of section 33 of the Act."}}, {"text": "section 33", "label": "PROVISION", "start_char": 6106, "end_char": 6116, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28F", "label": "PROVISION", "start_char": 6227, "end_char": 6238, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 6324, "end_char": 6337, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(2)", "label": "PROVISION", "start_char": 6351, "end_char": 6364, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 6469, "end_char": 6482, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 6500, "end_char": 6510, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 7086, "end_char": 7099, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 7307, "end_char": 7317, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 11984, "end_char": 11994, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 12235, "end_char": 12248, "source": "regex", "metadata": {"statute": null}}, {"text": "l'arekh", "label": "OTHER_PERSON", "start_char": 12377, "end_char": 12384, "source": "ner", "metadata": {"in_sentence": "The submission of Mr. l'arekh to the contrary cannot be accepted."}}, {"text": "section 32A", "label": "PROVISION", "start_char": 12596, "end_char": 12607, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 12678, "end_char": 12688, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 12814, "end_char": 12825, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 12881, "end_char": 12891, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 12998, "end_char": 13008, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 13069, "end_char": 13080, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 31 and 32", "label": "PROVISION", "start_char": 13993, "end_char": 14011, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 14069, "end_char": 14080, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 14264, "end_char": 14275, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_937_943_EN", "year": 1977, "text": "A. P. M. MAYAKUTTY ETC. v.\n\nSECRETARY, PUBLIC SERVICE DEPARTMENT, ETC.\n\nFebruary 8, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.] B llllerstate senioritY, in equated posts consequent to the reorganfamion of .State.~Whether scrvtes rendered under Rule !O(a)(i)(l) of the Madras State .and Subo_rdnate Services Rules would count for the purpose of fixing the interstate se'!1or11y-Kerala Government order dated 10-5-63 based 011 the recommendatzon of the Central Government dated 16-2-1963-Va/idity of.\n\nThe three appellants, who were appointed as temporary junior engineers in .the Madras High Way Subordinate Service under mle !O(a)(i) (!) of the C Madras State and Subordinate Services Rules on 13-6-1950, 6-6-1951 and .8-6-1951 respectively, on being selected by the Public Service Commission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15-3-1953, -4th July, 1954 and 18th July 1954 respectively.\n\nOn 1-11-1956, on the re- .organisation of States, they were allotted as junior engineers in the Kerala State\n\nwhich was formed by .inclusion therein of parts of the States of Madras and Travancore-Cochin. For the purpose of fixing the interstate seniority, several .orders were passed, from time tOI time, both by the Central Government and D the Government of Kerala.\n\nA provisional integrated gradation list of junior engineers was prepared by the State Government in October 1962 giving the .appellants ranks therein at serial Nos. 123, 132 and 145 respectively.\n\nOn a representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Government on 16-2-1963. They were : (!) The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towardi seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would E have been counted for interstate seniority on November !, 1956 had these .officers remained in Madras. (2) The principles. laid down by the Governmenu -0f Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop-gap or emergency arrangements and that on! y short periods for which appointment was held under such arrangements should be excluded.\n\nThe Government of Kerala passed an order on May 10, 1963 F adopting the first two alternatives but not the third.\n\nThe writ petition filed by the appellants in the Kerala High Court challenging he said orders dated , 10-5-1963 was rejected.\n\nJn appeal by special leave, the appellants contended :\n\n( 1) The emergency service rendered under Rnle !O(a) (i) (1) of the Rules .ongbt to be taken into account because snch service can be taken into account under Rnle 23 (a) ibid (ii) Such service is not liable to be excluded by reason G\n\n~ ·Of the directives issued earlier by the Government of India on 3rd April 1957 and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary sernce rendered by them would have been taken into account for fixing their seniority and (iv) Such, service should conn! in view of the grant of increments to them from the date of their initial appointments in view of the temporary service rendered by them having been counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, they beinJ! duly qualified to hold the posts of Junior Engineers, they having been permitted to appear for departmental tests which are open only to the probationers, their H service books having been opened from the date of their appointmfnt and the concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and again after the .expiry of ooe year of their emergency service.\n\nA Dismissing the appeals, the Comt,\n\nHEID : ( 1) A fact of fundamental importance which permeates every one of these considerations is that the appellants were appointed under rule !O(a) (i)(l) at the Madras State and Subordinate Services Rules.\n\nIn face of the proviiiOilll of these rules and the express terms of their appointment, to the effect, \"that appointments were under rule !O(a)(i)(l) purely temporary neceiiitated on account of, the non-availability of regularly selected candidates, conferring no claim for future appointment as junior engmeers aad they were liable to be terminated at any time without previous notice\", it is clear, that the appointments were purely as a matter of stop-gap or emergency arrangement and such serrice cannot be taken into account for the purpose of seniority from the date of their initial appointment. [941 E, H, 942 A]\n\n(2) Clauses (iii) and (iv) of rule IO(a) reflect significantly on the nature of the appointment held by the appellants and show that the appellants were appointed initially on a uniquely precarious tenure. Such tenures hardly even count for seniority in any system of service jurisprudence. [942-C-D]\n\n(3) The fact that the appellants were qualified to hold the posts cannot, in view of clause (iii) of rule lO(a) entitle them to count for the purpose of seniority the period during which they served in a stop-gap or an emergency arrangement. [942 Bl\n\n(4) The contention that if the appellants had remained in Madras their entire service would have counted for the purpose of seniority is without any merit and one of speculation as to what course the appellants' destiny would have taken had they remained in Madras. The Government of Madras itself did not trellt the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent government undoubtedly assigned to them attificial dates for fixing he commencement of eir probationary periods but such dates, though antenor to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment. The services rendered by them under rule IO(a)\n\n(i) ( 1) wer-c treated by the Government which appointed them as a matter of stop-gap, emergency or fortuitous arrangement. [942 D-G]\n\n(5) Tho concurrence of the Public Service Commission. to the continuance of the appellants in the post filled by them, firs~ after the !lxp1ry ?f three monts and then after the expiry of one year was obtame~ not with a. view to regularising the appointments but for the purpose of meetmg the r<:qu!rements of. a provision under which such concurrence is necessary to obtam 1f an appomtmcn' made \\Tithout selection by the Public Service Commission is required for any F reaon to be continued beyond three months or a year. [943 E-F]\n\n(6) In !he instant case, the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appointment show that the appellants were appointed purely as a matter oJ' fortuitous or stop-gap arrangement. Their initial temporary services cannot therefore be counted for the purpose of seniority. [943 B-C]\n\nC. P. Dfll/lodaran Nayar v. State of Karn/a [1974] 2 SCR 867, distinguished and held not applicable.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 841 of 1974.\n\nAppeal by Special Leave from! the Judgment and Order dated\n\n3~-~-1970 of the Kerala High Court in Writ Appeal No. 39/70 and C1v1l Appeal No. 1575 of 1970.\n\nAppeal by Special Le-ave from the Judgment and Order dated 22-12-1969 of the Kerala High C0urt in O.P. No. 211/65,\n\n. '\n\n~·.\n\nV. Sivarama Nair and A. S. Nambiar for the Appellants in both the Appeals.\n\nM. C. Bhandare and K. M. K. Nair for Respondent No. 1 in CA 841 and R. 2 in CA 1575/70.\n\n(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1 in CA No. 1575/70.\n\nK. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B No. 45 in CA 1575/70.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-Since these two appeals involve identical questions, we propose to state the facts of one of these only.\n\nThe decision in Civil Appeal No. 1575 of 1970'will govern the other appeal.\n\nThe three appellants were -appointed as temporary Junior Engineers in the Madras High Way Subordinate Service under rule lO(a) (i) (1) of the Madras State and Subordinate Services Rules.\n\nAppellants 1 and 2 were appointed on June 6 and June 8, 1951 respectively while the thir_d appellant was •appointed on June 30, 1950.\n\nA few years later they were appointed to the very same posts after selection by the Public Service Commission and in course of time, orders were issued under rule 23(a) of the aforesaid rules permitting them to commence their probation from dates anterior to the dates of their appointments after selection by the Public Service Commission but subsequent to the dates of their initial •appointments under rule .IO( a) (i) (1). The first appellant was permitted to commence. his probationary period on July 4, 1954, the second on July 18, 1954 and the third ori March 15, 1953.\n\nOn November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to the Kerala Srate which was formed by inclusion therein of parts of the States of Madras and Travancore-Cochin.\n\nAs in other States, so in Kerala, it became necessary to fix rules of seniority governing employees drawn from different.\n\nStates, parts of which were integrated in Kerala.\n\nA conference of Chief Secretaries of various States was held on May 18 and 19, 1956, to consider problems arising out of reorganisation of States and the consequent integration of services.\n\nPursuant to the decision taken in that Conference, the Government of Kera1'a passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States. and holding posts declared to be equivalent shall be determined by considering the length of continuous service in the equated grade, whether such service is temporary or officiating, quasi permanent or permanent.\n\nThe order, however, expressly provided that in the aforesaid determination, the period for which an appointment was held \"in a purely stop-gap or emergency arrangement\" was to be excluded.\n\nOn April 3, 1957 the Government of India issued a directive under section 117 of the States Reorganisation Act stating that it was agreed that in determining the relative seniority as between two persons holding posts declared as equivalent to ea.ch other and drawn from different States the length\n\n12--206SCT /77\n\nA of continuous service, whether temporary or persnanent, in the particular grade should be taken into account, excluding \"periods for wllich an appointment is held in a purely stop-gap or fortuitous arrangement.\" On April 2, 1958 the Government of Kerala issued a clarificatory order stating that for computing length of continuous service \"only short periods for which an appointment was held in purely stop gap or emergency appointment will be excluded.\" It issued B another order on August 16, 1961 stating &at one year of temporary service of Junior Engineers allotted from Madras would be excluded for the purposes of fixing their interstate seniority.\n\nRepresentations were made against this order to the Government of India which direlcted by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore-Cochin or Madras personnel prior to November 1, 1956 before regularisation -1 C of their 'appointments should be taken into account for the purposes of deciding. interstate seniority, only if such service is either regularised, or it is in a time-scale of pay and is reckoned for grant of increments in the time-scale. and is continuous.\n\nO'n May 16, 1962 the Government of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequ'ently, in October 1962 a provisional integ- D rated grad_ation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos. 145, 137 and 123 respectively.\n\nEmployees d_rawn froni. the Travancore-Cochin area being evidently p~_ejudiced by the decision of the Kemla Government made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government.\n\nThe first alternative thus recommended was that the officers allocated to Kerala from the former Madras St'ate may be allowed the benefit of emergency service towards seniority in the equated category if such service would h'ave been regularised from the date of their emergency appointment and if it would have been counted for interstate seniority on November 1, 1956, had these officers remained in M'adras.\n\nThe second alternative was that the principles laid down by the Government of Madras in their order dated July 17, 1957 be accepted.\n\nBy the third alternative it was stated that the Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop-gap or emergency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.\n\nOn May 10, 1963 the Government of Kerala passed, an order adopting the first two alternatives but not the third.\n\nThe appellants thereafter field a writ petition in the Kerala High Court which wa~ disposed of in December 1964 by directing them to file representations to the Government of India on the basis of a certain decision rendered by the High Court earlier. The appellants accordingly made representations and on those being rejected, they filed a writ petition in the High Court in August 1965. That writ petition having been dismissed, they have filed this appeal by SIJecial leave ..\n\nThe question which arises for decision is whether the serviCes rendilred by the appellants under rule lO(a) (i) (1) of the Madras State and Subordinate Services Rules must be taken into account for the purpose of fixing their seniority in the service of the Kerala Government as from November 1, 1956.\n\nIt is urged on behalf of the appellants th•at the aforesaid service ought to be taken into account because such service can be taken into account under rule 23, econdly because such service is not liable to be excluded by reason of the directives issued earlier by the Government of India and thirdly because if the appellants had remained in Madras, the temporary service rendered by them would have been taken into account for fixing. their seniority.\n\nCounsel for the appellants says that they were granted increments from the date of their initial appointments, that the temporary service rendered by them was counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, that they were duly qualified to hold the post of Junior Engineei:s, that they were entitled and permitted to appear for departmental tests which are open only to the probationers, that their service Qooks were opened from the data of their initial appointments, and that the concurrence of the Public Service Commission was obtained for continuing them in service after the expiry of three months and then again after the expiry of one year.\n\nThese facts and circumstances, according to the appellants, would justify the counting of temporary service rendered by them for the purpose of fixing their seniority.\n\nHaving given every consideratio11 to these matters we think it impossible to accept the appeal.\n\nA fact of fundamental importance which permeates every one of these considerations is that the appellants were appointed under ru)e lO(a) (i) (1) of the Madras State E and Subordinate Services Rules which runs thus :\n\n\"10. Temporary appointments.-(a) (i) (1) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be\n\nundue delay in making .such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, otherwise than in accordance with the said rules.\"\n\nThis provision contemplates the making of temporary appointments when it is necessary in the .public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.\n\nSuch appointments, in terms, are permitted to made otherwise than in accordance with the rules. The letters of appointment issued to the appellants mention expressely that they were appointed under rule lO(a)\n\n(i )( 1), that the appointments were \"purely temporary necessitated on account of the non-availability of regularly selected candidates conferring no claim for future appointmerit as Junior Engineers .... and that the appointment is liable to be terminated at any time .without previous notice.\" In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since\n\nA such service cannot be t•aken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority.\n\nClause (iii) of rule. lO(a) makes this position clearer by providmg that a person appomted under clause (i) shall, whether or not he possesses the qualifications prescribed for the service, be repl'aced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules.\n\nThe fact that the appellants were qualified to hold the posts cannot, therefore, entitle them to count for: the purposes of seniority the period during which they served in a stop-gap or emergency arrangement.\n\nClause\n\n(v) of rule lO(a) provides that a person appointed under clause (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service •and that the services shall be liable to be terminated at any time without notice and without assigning any reason.\n\nThese provisions reflect significantly on the nature of the appointment held by the appellants and show that the appellants wete appointed initially on •a uniquely precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudence.\n\nIt is now only necessary to consider the appellant's argument that had they remained in_ ¥adras, their entire service would have counted for purposes of seniority.\n\nIn support of this argument reliance was placed on the correspondence between the Governments of Keral'a and Madras, but neither that correspondence nor a certain order dated June 11, 1960, which is at Ex. P-17 in the record, can avail the appellants.\n\nIn a way of saying, the proof of pudding is in the eating.\n\nIt is needless to specurate as to what course the appellants' destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.\n\nThat parent government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment.\n\nAs stated earlier, the appellants were •appointed initially in June 1951 and June 1950, but the Government of Maaras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and March 1953.\n\nThis shows th•at the services rendered by the appellants under rule lO(a) (i) (1) were treated by the Government which appointed them as a matter of stop-gap, emergency or fortuitous arrangement.\n\nThe decision in C. P. Damodaran Nayar v. State of Kerala(I) on which the -appellants' counsel has placed reliance for showing that temporary service of the kind rendered initially by the appellants can\n\n(I) [1974] 2 S.C.R. 867.\n\n.....\n\nA.P.M. MAYAKUTTY v. SECRETARY, P. s. DEPTT. (Cha11drachud, !.) 943\n\nbe counted for the purposes of seniority has no application to the instant case.\n\nOne of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951.\n\nHe was in continuous service in than post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing \"that the said date was assigned to him as the date of conunencement of his continuous service.\n\nDealing with the appeal arising out of the dismissal of his writ petition, this Court held that the service rendered by the appellant after his initial appointment was neither emergency service nor was it a purely stop gap or fortuitous arrangement.\n\nThe distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was \"appointed in a regular manner through the Public Service Commission\" and therefore his appointment could not \"by any stretch of imagination\" be described as having been made to fill a purely stop-gap or fortuitous vacuum (p. 876). In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants' appointment to which we have dmwn attention show that the appellants were appointed purely as a matter of fortuitous or stop-gap arrangement.\n\nThe concurrence of the Public Service Commission to the continuance of the appellants in the posts filled by them, first after the expiry of three months and then after the i;; xpiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.\n\nFor these reasons we confirm the judgment of the High Court and dismiss this appeal.\n\nThere will be no order as to costs.\n\nCivil Appeal No. 841 of 1974 will also stand dismissed but without an order of costs.\n\nS.R.\n\nAppeals dismissed.", "total_entities": 61, "entities": [{"text": "A. P. M. MAYAKUTTY ETC", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "A. P. M. MAYAKUTTY ETC", "offset_not_found": false}}, {"text": "SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC", "label": "RESPONDENT", "start_char": 28, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "SECRETARY, PUBLIC SERVICE DEPARTMENT, ETC", "offset_not_found": false}}, {"text": "February 8, 1977", "label": "DATE", "start_char": 72, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "February 8, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 91, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 110, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Madras State and Subordinate Services Rules", "label": "STATUTE", "start_char": 668, "end_char": 711, "source": "regex", "metadata": {}}, {"text": "13-6-1950", "label": "DATE", "start_char": 715, "end_char": 724, "source": "ner", "metadata": {"in_sentence": "of the C Madras State and Subordinate Services Rules on 13-6-1950, 6-6-1951 and .8-6-1951 respectively, on being selected by the Public Service Commission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15-3-1953, -4th July, 1954 and 18th July 1954 respectively."}}, {"text": "15-3-1953", "label": "DATE", "start_char": 963, "end_char": 972, "source": "ner", "metadata": {"in_sentence": "of the C Madras State and Subordinate Services Rules on 13-6-1950, 6-6-1951 and .8-6-1951 respectively, on being selected by the Public Service Commission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15-3-1953, -4th July, 1954 and 18th July 1954 respectively."}}, {"text": "1-11-1956", "label": "DATE", "start_char": 1027, "end_char": 1036, "source": "ner", "metadata": {"in_sentence": "On 1-11-1956, on the re- .organisation of States, they were allotted as junior engineers in the Kerala State\n\nwhich was formed by .inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "Kerala", "label": "GPE", "start_char": 1120, "end_char": 1126, "source": "ner", "metadata": {"in_sentence": "On 1-11-1956, on the re- .organisation of States, they were allotted as junior engineers in the Kerala State\n\nwhich was formed by .inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "Madras", "label": "GPE", "start_char": 1199, "end_char": 1205, "source": "ner", "metadata": {"in_sentence": "On 1-11-1956, on the re- .organisation of States, they were allotted as junior engineers in the Kerala State\n\nwhich was formed by .inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "Travancore", "label": "GPE", "start_char": 1210, "end_char": 1220, "source": "ner", "metadata": {"in_sentence": "On 1-11-1956, on the re- .organisation of States, they were allotted as junior engineers in the Kerala State\n\nwhich was formed by .inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "Central Government", "label": "ORG", "start_char": 1342, "end_char": 1360, "source": "ner", "metadata": {"in_sentence": "For the purpose of fixing the interstate seniority, several .orders were passed, from time tOI time, both by the Central Government and D the Government of Kerala."}}, {"text": "Government of Kerala", "label": "ORG", "start_char": 1371, "end_char": 1391, "source": "ner", "metadata": {"in_sentence": "For the purpose of fixing the interstate seniority, several .orders were passed, from time tOI time, both by the Central Government and D the Government of Kerala."}}, {"text": "Cochin", "label": "GPE", "start_char": 1646, "end_char": 1652, "source": "ner", "metadata": {"in_sentence": "On a representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Government on 16-2-1963."}}, {"text": "Government of India", "label": "ORG", "start_char": 1663, "end_char": 1682, "source": "ner", "metadata": {"in_sentence": "On a representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Government on 16-2-1963."}}, {"text": "Kerala Government", "label": "ORG", "start_char": 1740, "end_char": 1757, "source": "ner", "metadata": {"in_sentence": "On a representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Government on 16-2-1963."}}, {"text": "16-2-1963", "label": "DATE", "start_char": 1761, "end_char": 1770, "source": "ner", "metadata": {"in_sentence": "On a representation by the employees of the Travancore-Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Government on 16-2-1963."}}, {"text": "November !, 1956", "label": "DATE", "start_char": 2093, "end_char": 2109, "source": "ner", "metadata": {"in_sentence": "The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towardi seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would E have been counted for interstate seniority on November !,"}}, {"text": "July 17, 1957", "label": "DATE", "start_char": 2230, "end_char": 2243, "source": "ner", "metadata": {"in_sentence": "laid down by the Governmenu -0f Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop-gap or emergency arrangements and that on!"}}, {"text": "May 10, 1963", "label": "DATE", "start_char": 2718, "end_char": 2730, "source": "ner", "metadata": {"in_sentence": "The Government of Kerala passed an order on May 10, 1963 F adopting the first two alternatives but not the third."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 2838, "end_char": 2855, "source": "ner", "metadata": {"in_sentence": "The writ petition filed by the appellants in the Kerala High Court challenging he said orders dated , 10-5-1963 was rejected."}}, {"text": "10-5-1963", "label": "DATE", "start_char": 2891, "end_char": 2900, "source": "ner", "metadata": {"in_sentence": "The writ petition filed by the appellants in the Kerala High Court challenging he said orders dated , 10-5-1963 was rejected."}}, {"text": "Government of Madras", "label": "ORG", "start_char": 5879, "end_char": 5899, "source": "ner", "metadata": {"in_sentence": "The Government of Madras itself did not trellt the entire service of the appellants as regular when they were selected by the Public Service Commission."}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 6229, "end_char": 6254, "source": "ner", "metadata": {"in_sentence": "That parent government undoubtedly assigned to them attificial dates for fixing he commencement of eir probationary periods but such dates, though antenor to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment."}}, {"text": "[1974] 2 SCR 867", "label": "CASE_CITATION", "start_char": 7459, "end_char": 7475, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 7517, "end_char": 7545, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "V. Sivarama Nair", "label": "LAWYER", "start_char": 7861, "end_char": 7877, "source": "ner", "metadata": {"in_sentence": "V. Sivarama Nair and A. S. Nambiar for the Appellants in both the Appeals."}}, {"text": "A. S. Nambiar", "label": "LAWYER", "start_char": 7882, "end_char": 7895, "source": "ner", "metadata": {"in_sentence": "V. Sivarama Nair and A. S. Nambiar for the Appellants in both the Appeals."}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 7937, "end_char": 7951, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare and K. M. K. Nair for Respondent No."}}, {"text": "K. M. K. Nair", "label": "LAWYER", "start_char": 7956, "end_char": 7969, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare and K. M. K. Nair for Respondent No."}}, {"text": "Shyamla Pappu", "label": "LAWYER", "start_char": 8033, "end_char": 8046, "source": "ner", "metadata": {"in_sentence": "(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 8051, "end_char": 8065, "source": "ner", "metadata": {"in_sentence": "(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No."}}, {"text": "K. S. Ramamurthi", "label": "LAWYER", "start_char": 8107, "end_char": 8123, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B No."}}, {"text": "N. Sudhakaran", "label": "LAWYER", "start_char": 8125, "end_char": 8138, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B No."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 8143, "end_char": 8155, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi, N. Sudhakaran and P. K. Pillai for Respondent B No."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 8240, "end_char": 8251, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-Since these two appeals involve identical questions, we propose to state the facts of one of these only."}}, {"text": "July 18, 1954", "label": "DATE", "start_char": 9291, "end_char": 9304, "source": "ner", "metadata": {"in_sentence": "his probationary period on July 4, 1954, the second on July 18, 1954 and the third ori March 15, 1953."}}, {"text": "March 15, 1953", "label": "DATE", "start_char": 9323, "end_char": 9337, "source": "ner", "metadata": {"in_sentence": "his probationary period on July 4, 1954, the second on July 18, 1954 and the third ori March 15, 1953."}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 9343, "end_char": 9359, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to the Kerala Srate which was formed by inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "Travancore-Cochin", "label": "GPE", "start_char": 9534, "end_char": 9551, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to the Kerala Srate which was formed by inclusion therein of parts of the States of Madras and Travancore-Cochin."}}, {"text": "May 18 and 19, 1956", "label": "DATE", "start_char": 9792, "end_char": 9811, "source": "ner", "metadata": {"in_sentence": "A conference of Chief Secretaries of various States was held on May 18 and 19, 1956, to consider problems arising out of reorganisation of States and the consequent integration of services."}}, {"text": "Government of Kera1'a", "label": "ORG", "start_char": 9974, "end_char": 9995, "source": "ner", "metadata": {"in_sentence": "Pursuant to the decision taken in that Conference, the Government of Kera1'a passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States."}}, {"text": "December 29, 1956", "label": "DATE", "start_char": 10015, "end_char": 10032, "source": "ner", "metadata": {"in_sentence": "Pursuant to the decision taken in that Conference, the Government of Kera1'a passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States."}}, {"text": "April 3, 1957", "label": "DATE", "start_char": 10527, "end_char": 10540, "source": "ner", "metadata": {"in_sentence": "On April 3, 1957 the Government of India issued a directive under section 117 of the States Reorganisation Act stating that it was agreed that in determining the relative seniority as between two persons holding posts declared as equivalent to ea.ch other and drawn from different States the length\n\n12--206SCT /77\n\nA of continuous service, whether temporary or persnanent, in the particular grade should be taken into account, excluding \"periods for wllich an appointment is held in a purely stop-gap or fortuitous arrangement.\""}}, {"text": "section 117", "label": "PROVISION", "start_char": 10590, "end_char": 10601, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 10609, "end_char": 10634, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 2, 1958", "label": "DATE", "start_char": 11057, "end_char": 11070, "source": "ner", "metadata": {"in_sentence": "On April 2, 1958 the Government of Kerala issued a clarificatory order stating that for computing length of continuous service \"only short periods for which an appointment was held in purely stop gap or emergency appointment will be excluded.\""}}, {"text": "August 16, 1961", "label": "DATE", "start_char": 11327, "end_char": 11342, "source": "ner", "metadata": {"in_sentence": "It issued B another order on August 16, 1961 stating &at one year of temporary service of Junior Engineers allotted from Madras would be excluded for the purposes of fixing their interstate seniority."}}, {"text": "March 1, 1962", "label": "DATE", "start_char": 11606, "end_char": 11619, "source": "ner", "metadata": {"in_sentence": "Representations were made against this order to the Government of India which direlcted by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore-Cochin or Madras personnel prior to November 1, 1956 before regularisation -1 C of their 'appointments should be taken into account for the purposes of deciding."}}, {"text": "Travancore-Cochin", "label": "ORG", "start_char": 11694, "end_char": 11711, "source": "ner", "metadata": {"in_sentence": "Representations were made against this order to the Government of India which direlcted by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore-Cochin or Madras personnel prior to November 1, 1956 before regularisation -1 C of their 'appointments should be taken into account for the purposes of deciding."}}, {"text": "May 16, 1962", "label": "DATE", "start_char": 12048, "end_char": 12060, "source": "ner", "metadata": {"in_sentence": "O'n May 16, 1962 the Government of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequ'ently, in October 1962 a provisional integ- D rated grad_ation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos."}}, {"text": "March 1, Consequ'ently", "label": "DATE", "start_char": 12200, "end_char": 12222, "source": "ner", "metadata": {"in_sentence": "O'n May 16, 1962 the Government of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequ'ently, in October 1962 a provisional integ- D rated grad_ation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos."}}, {"text": "Kemla Government", "label": "ORG", "start_char": 12530, "end_char": 12546, "source": "ner", "metadata": {"in_sentence": "the Travancore-Cochin area being evidently p~ejudiced by the decision of the Kemla Government made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government."}}, {"text": "February 16, 1963", "label": "DATE", "start_char": 12605, "end_char": 12622, "source": "ner", "metadata": {"in_sentence": "the Travancore-Cochin area being evidently p~ejudiced by the decision of the Kemla Government made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government."}}, {"text": "M'adras", "label": "GPE", "start_char": 13098, "end_char": 13105, "source": "ner", "metadata": {"in_sentence": "The first alternative thus recommended was that the officers allocated to Kerala from the former Madras St'ate may be allowed the benefit of emergency service towards seniority in the equated category if such service would h'ave been regularised from the date of their emergency appointment and if it would have been counted for interstate seniority on November 1, 1956, had these officers remained in M'adras."}}, {"text": "June 11, 1960", "label": "DATE", "start_char": 19294, "end_char": 19307, "source": "ner", "metadata": {"in_sentence": "In support of this argument reliance was placed on the correspondence between the Governments of Keral'a and Madras, but neither that correspondence nor a certain order dated June 11, 1960, which is at Ex."}}, {"text": "Government of Maaras", "label": "ORG", "start_char": 20103, "end_char": 20123, "source": "ner", "metadata": {"in_sentence": "As stated earlier, the appellants were •appointed initially in June 1951 and June 1950, but the Government of Maaras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and March 1953."}}, {"text": "[1974] 2 S.C.R. 867", "label": "CASE_CITATION", "start_char": 20676, "end_char": 20695, "source": "regex", "metadata": {}}, {"text": "Madras Public Service Commission", "label": "ORG", "start_char": 20931, "end_char": 20963, "source": "ner", "metadata": {"in_sentence": "One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951."}}, {"text": "State of Kerala", "label": "ORG", "start_char": 21098, "end_char": 21113, "source": "ner", "metadata": {"in_sentence": "He was in continuous service in than post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing \"that the said date was assigned to him as the date of conunencement of his continuous service."}}]}
{"document_id": "1977_2_944_951_EN", "year": 1977, "text": "'~ -··· JJL.\n\nMANJUSRI RAHA & ORS ETC. v.\n\nB. L. GUl'TA & ORS. ETC.\n\nFebruary 9, 1977\n\n[V. R. KRISHNA IYER AND S. MURTAZA ALI, JJ.]\n\nMotor Vehicles Act 1939-Sec. 95(2)(d)--Sec. l IOA:..__Principles to determine compensation payable for death in a bus accident-Increments and pensionary benefits, whether to be taken into account.\n\nSatindra Nath Raha and Uma Shankar Shastri were travelling by a bus owned by Gupta of M. P. Speedways Company. They were travelling from Bhind to Gwalior. On the' high way, a bus owned by Bhuta came from the opposite direction. On account of negligence of drivers of both the buses. there was a head-on collision of the two buses, as a consequence of which Raha and Shastri sustained fatal injuries to which they succumbed on the same day in the hospital. Widow of Rahal claimed a compensation of Rs. 3,00,000/- under s. llOA of the Motor Vehicles Act and Mrs. Shastri claimed a sum of Rs. 1,20,000 /- as compensation.\n\nThe Claims Tribunal decreed the claim of Mrs. Raha to the extent of Rs. 60,000/- and of Mrs. Shastri to the extent of Rs. 40,000/-. The compensation awarded to Mrs. Raha is on the basis of the salary _which Mr. Raha would have earned upto the age of 55 yars after dednctmg half the salary. The quantum awarded by the Tribunal was upheld by the High Conrt.\n\nGupta and Mrs. Raha field the present appeals in this Court.\n\nGupta contended that the compensatim1 awarded -was very excessive and Mrs. Raha contended that the compensation granted was grossly inadequate and should be enhanced.\n\nAllowing the appeal filed by Mrs. Raha and dismissing the appeal filed by Gupta,\n\nHELD : l. The contention of Gupta that he should not be made liable to pay the compensation since no negligence was alleged against the driver Ram\n\nSwa.rup negatived. Although the plaint is loosely_ drafted but it clearly contains the relief of compensation against Gupta and Ram Swamp, the driver.\n\nPleadings• have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. The Claims Tribunal and the High Court overlooked two important and vital considerations.\n\nFirstly the increments which Mr. Raha would have earned while reaching the maximum of his grade long before his retirement and secondly the pensionary benefits which he would have obtained had he retired. It wonld be reasonable to expect that if the deceased had not died due to the accident he would have lived at least upto the age of 65 years. The Court, therefore, enhanced the compensation of Rs. 60,000/- to Rs. 1.00,000/-. [948 F, G, 949 A-B, 950 A-BJ\n\n2. It is unfortunate that section: 95(2) (d) of the Motor Vehicles Act restricts the liability of the Insurance Companies to Rs. 2,000/- only in case of a third party. The court suggested that the Legislature should increase the li:1hility of the Jnsnrance company. The court observed that it was anamolous that if a passenger dies in a pl:>ne accident he gets the compensation of Rs. l lac and a person who dies in the road accident should get only Rs. 2,000/-.\n\n[946 D-E]\n\n3. Expressing its concern for the need for creating no fa\\Jlt liability by a suitable legisl:>tion, the Conrt observed :\n\nThe time is ripe for serious consideration of creating no-fault liability.\n\nHaving regard to the directive princioles of State policy, the 1JOVerty of the ordinary run of victims of automobile accidents, the compulsory nature .of insurance of motor vehicles, the nationalisation of general insurance comparnes and the expanding trend towards nationalisation of bus transport, the law of\n\n' \"\n\ntorts based on no-fault needs reforms. Where the social need of the hour re- 11.uires that precious human lives lost in motor accidents leaving a trial of .economic disaster in the shape of their unprovided for families caU for special attention of the law makers to meet this social need by providing for heavY\n\nand adequate compensation particularly through Insurance Companies.\n\nOur country can ill-afford the loss of a precious life when we are building a progressive society and if a-ny person engaged in industry, office, business or any other occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind.\n\nIn these circumstances it is only just and fair tha-t the Legislature should make a suitable provision so as to pay adequate compensation by property eva.Juating the precious life of a citizen in its true perspective rather than devaluating human lives on the basis of an artificial mathematical formula. [916 C-950 D-F]\n\nC1v1L APPELLATE JURISDICTION : Civil Appeal Nos. 2310 & 1826 of 1968.\n\n(From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh High Court in Misc. First Appeals Nos. 219 and 220 of 1965) and\n\nCivil Appeal No. 132 of 1969\n\n- (From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh High Court in Misc. First Appeal No. 203 of 1965).\n\nG. L. Sanghi, Talat! Ansari, R. K. Sanghi and K. J. John.-Irn E CAs. Nos. 132/69 & 1826168 for the Appellant in 132 & in 1826/ 68.\n\nG. S. Chatterjee & D. P. Mukherjee.-for Respondents 1-3.\n\nI. N. Shroff & H. S. Parihar-for Respondent No. 8.\n\nH. K. Puri and A. G. Ratnaparkhi.-for Respondent No. 6 for Respondents 9 to 11. ·\n\nG. S. Chatterjee & D. P. Mukherjee, in CA No. 2310 of 1968 :for the appellants. ·\n\nG. S. Sanghi, Talat Ansari, R. K. Sanghi and K. J. Joh11 fur respoµdent No. 1.\n\nH. S. Parihar & I. N. Shroff for respondent No. 3.\n\nH. K. Puri for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\n. FAZAL ALI, J.-'-ith the emergence of an ultra-modern age wh_1ch has led to stndes of progress in all spheres of iife; we have H switched from fast to faster vehicular traffic which has come as a boon to many, though some times in the case of some it has also\n\n946 SUP}lEME COURT REPORTS [1977] 2 s.c.R.\n\nA proved to be a misfortune.\n\nSuch are the cases of the victims of motor accidents resulting from rash and negligent driving which take away quite a number of precious lives of the people of our country.\n\nAt a time when we are on the way to progress and prosperity, our country can ill-afford to lose so many precious lives every year, for though the percentage of deaths caused by motor accidents in other countries is high, in our own country the ame is not by B any means negligible, but is a factor to be reckor.ed with.\n\nOur lawmakers being fully conscious of the expanding needs of our nation have passed laws and statutes to minimise motor accidents and to provide for adequate compensation to the families who face serious socio-economic problems if the main bread-earner los..s:s his life in the motor accident.\n\nThe time is ripe for serious consideration of creating no-fault liability.\n\nHaving regard to the directive principles C of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the ex-· panding trend toward's nationalisation of bus transport, the law of torts based on no-fault needs reform.\n\nWhile s. 110 of rhe Motor Vehicles Act provides for the constitution of Claims Tribunals for determining the compensation payable, s. 110-A provides for the D procedure and circumstances under which the family of a victim of a.\n\nmotor accident can get compensation and lays down the various norms, though not as exhau'stively as it should have. The Courts, however, have spelt out and enunciated valuable principles from time to time which guide the determination of compensation in a particular situation.\n\nUnfortunately, however, s. 95(2) (d) of the Motor Vehicles Act limits the compensation to be paid by an Insurance Com- E pany to Rs. 2,000/- only in respect of death to any third party and this is one disconcerting aspect on which we shall have to say something in a later part of our judgment. ,\n\nWith this little preface we now take up the facts in the appeals by certificate filed by B. L. Gupta and Smt. Manjushri Raha in this Court, and which after being consolidated have been disposed of by one common judgment both by the Claims Tribunal as also by the High Court.\n\nManjushri Raha, the main appellant in Civil Appeal No. 2310 of 1968 will, in short, be referred to hereafter as \"Raha\",\n\nwhereas respondentS Oriental Fire & General Insurance Company would be referred to as \"Oriental Company\" and the New India Insurance Company as \"New India Company\".\n\nSmt. Manjula Devi Bhuta representing the owner of vehicle No. MPG-4515 will be referred to as \"Bhuta\", whereas B. L. Gupta the owner of vehicle No.\n\nMPG-4307 belonging to the M. P. Speedways Company would be referred to as \"Gupta\". Padmavati Shastri, the respondent in one of the appeals, would be referred to as \"Shastri\". The appeals arise in the following circumstances.\n\nH Claim Case No. 6 of 1962 was filed by Raha along with her two minor children against Bhuta, Sushil Kumar driver of vehicle No.\n\nMPG-4615, Orienfal Company, New India Company, Gupta owner of the M. P. Speedways Company and Ram Swaroop driver of vehicle No. MPG-4307.\n\nThe applicant Raha claimed compenation for a\n\nsum of Rs. 3,00,000/- against the respondents under s. 110-A of the Motor Vehicles Act.\n\nSimilarly Shastri filed Claim Case No. 5 of 1962 against the respondents mentioned above claiming Rs. 1,20,0001as compensation from the aforesaid respondents.\n\nBoth these claims were consolidated and heard and decided by one common judgment by the Claims Tribunal, Gwalior.\n\nTh~ acts giving rise to the claims of Raha and Shastri were that on Apnl 10, 19_62 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No.\n\nMPG-4307 (owned by Gupta of the M. P. Speedways Company) from Bhind to Gwalior.\n\nWhen the bus travelled a distance of about 26 miles on the Bhind-Gwalior road another bus bearing No. MPG-4615 belonging to Bhuta was seen coming from the opposite direction.\n\nThe driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushi! Kumar.\n\nWhen the two buses were approaching in opposite directions, both the driver's being negligent and having failed to take the necessary precautions of keeping to theii; left led to a head-on collision of the two buses as a consequence of which the two persons, namely, Satyendra Nath Raha and L'ma Shanker Shastri sustained fatal injuries to which they succumbed on the same day in the Gohad Hospital. _ The facts and circumstances under which the accident took place have not been disputed by counsel for the parties, nor have the essential findings of fact given by the Claims Tribunal and the High Cour! been challenged before us.\n\nThe appeal, therefore, lies within a very narrow compass.\n\nBut before dealing with the appeals, it m_ay be necessary to indicate the reliefs granted by the Claims Tribunal to the parties concerned.\n\nThe Claims Tribunal decreed the claim of Raha to the extent of R'§. 60,0001only against all the respondents holding that the drivers of both the buses were negligent.\n\nThe claim of Shastri was decreed only to the extent of Rs. 40,000/- against Bhuta, Sushi!\n\nKumar driver and Oriental Company.\n\nNo decree was passed against Ram Swaroop driver of the M.P. Speedways Company and New India Company because there was no allegation of negligence against these persons in the claim filed by Shastri.\n\nAgainst the decision of the Claims Tribunal, Gupta field Miscellaneous First Appeal No. 203 of 1965 against Bhuta, Raha and others which was dismissed by the High Court.\n\nCivil Appeals Nos. 1826 of 1968 and 132 of 1969 in this Court arise out of the aforesaid appeal before the High Court.\n\nMiscellaneous First Appeal No. 219 of 1965 was filed by Bhuta against Raha, Gupta and others which was also dismissed by the High Court, but Bhuta has not filed any appeal to this Court against the decision of the Tribunal and the High Court in that appeal. But Bhuta had filed an appeal in the High Court being Miscellaneous First Appeal No. 220 of 1965 against Shastri which was allowed by the High Court to this extent that the decree against Gupta and Ram Swaroop was made joint and several along with the appellant Bhuta.\n\nMiscellaneous First Appeal No. 222 of 19'65 was filed before the High Court by Oriental Company against Shastri but that was also dismissed.\n\nSimilarly Miscellaneous First . .App€al No. 223 of 1965 was filed before the High Court by Oriental Company against Raha which was also dismissed along with the cross objection\n\nA which was filed by Raha for enhancement of the compensation. The High Court, however, held in Miscellaneous First Appeal No. 223 of 1965 that Oriental Company was to pay a total compensation of Rs. 20,000/- out of which Rs. 8,0001was to be paid to Shastri and Rs. 12,0001to Raha.\n\nThe present appeals in this Court have been filed by Gupta and B Raha.\n\nNeither Shastri, nor Bhuta, nor any of the Insurance Companies have filed any appeal before this Court.\n\nThe short point raised by Mr. Sanghi appearing for Gupta was that in the c; ircumstances the compensation awarded by the Claims Tribunal to Raha was too high and at any rate the High Court ought not to hve made the appellant Gupta liable jointly and severally with others. In the appeal filed by Raha it is claimed that the compensation granted by C the Claims Tribunal was grossly inadequate and shoulq be enhanced.\n\nIt has been stated before us by Mr. Sanghi, though not admitted by the other 'side, that Gupta and the Insurance Companies have paid a total amount of Rs. 29,000/- (Rs. 15,0001by Gupta and Rs. 14,000 by Insurance Companies) in full and final settlement of the claim of Raha and, therefore, the appeal should be decreed in terms of the compromise.\n\nIt was further contended that even if the amount D awarded by the Claims Tribunal to Raha is enhanced that should be payable by Bhuta alone and not by the appellant Gupta, who has\n\nsettled the claim with the appellant Raha.\n\nThere can be no doubt that if really a settlement has been reached between Gupta and Raha then no further decree can be passed as against Gupta. The appellant further undertook to pay Rs. 10,000 /- to Shastri in fulfilment of her claim.\n\nAs Rs. 10,000/- has already been paid to Shastri with the B result that Bhuta has yet to pay Rs. 20,000 /- being her share to Shastri.\n\nFtnally, it was contended that as there was no allegation of negligence agains! Ram Swaroop the driver of the M. P. Speedways Company the High Court ought not to have decreed the claim of Raha against the appellant Gupta.\n\nWe have perused the plaint before the Claims Tribunal, which is rather loosely drafted, but it clearly contains the relief of compensation even against Gupta and Ram Swaroop driver.\n\nThe High Court has pointed out that even though there is no clear plea of negligence in the claim of Raha, the facts alleged and proved in the case clearly show that Ram Swaroop the driver of the M.P. Speedways Company was both rash and negligent. Pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal .literacy of poor people.\n\nWe fully agree with the finding of the High Court and see no reason to disturb it.\n\nWe also agree with the order of the High Court by which it makes Gupta and Bhuta jointly and se'-:erally liable.\n\nThat was the only decree which could have been pas'sed in the circumstances.\n\nComing now to the appeal filed by Raha, counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is grossly inadequate and certain important factors have not been taken into consideration.\n\nOn a perusal of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Saty, en-\n\n<Ira Nath Raha would have got upto the age of 55 years which has been taken at Rs. 1,20,000/- and after deducting half which would normally have been spent, the actual income lost to the family was Rs. 60,0001-. It seems to us, however, that in makiug the calculation,. the Claims Tribunal and the High Court overlooked two important and vital considerations.\n\nIn the first place, while tpe admitted position was that the deceased Satyendra Nath Raha was workiRg in the grade of Rs 590-30-830-35-900 and was getting a salary of Rs. 620/- p.m. at the time of his death, the Courts below have not taken into account the salary which he would have earned while reaching the maximum of his grade long before his retirement.\n\nIt is admitted that the deceas\\!d Satyendra Nath Raha was 37 years of age at the time of the accident and at this rate he •.vould. have reached the maximum of the grade of Rs. 900/- at the age of 46 years i.e. full 9 years before his superannulltion.\n\nThe claimant ha~ produced a certificate Ext. P-4 from the office of the Accountaut General, Madhya Pradesh, Gwalior, which shows that from April 11. 1962 (i.e. the date next to the date of the death of Satyendn! Nath Raha) to October 15, 1980 which would be the last working day of the deceased Raha, the deceased Raha would have drawn Rs. 1,89,402/- including the increments earned and the maximum grade drawn.\n\nThis figure may be rounded off to Rs. 1,88,000/-. Even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of income.. tax and other charges, the actual income lost to the family including the value of the estate and the loss to the dependents would be Rs. 94,000/-. This will be a fair estimate which does not take into account the economic value of the deprivation to the wife of her husband's company fon ever and the shock felt by the children.\n\nIt was suggested by the High Court that as the deceased Raha was not a permanent employ~, the amount taken into account by the Compensation Tribunal was correct.\n\nThis is, however, not a consideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent.\n\nOn the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount.\n\nIn these circumstances, therefore, we think that the amount of Rs. 90,000/- would represent the correct compensation so far as the salary part of the deceased Raha is concerned. . ·\n\nThe Courts below have also not considered the effect of the pensionary benefits which the deceased Raha would u-ridoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of superannuation, whereas in the present economic conditions the life of an average Indian has increased more than two-fold. It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so a's to earn the pensionary benefits for 10 years after retirement. According to the certificate Ext. P-4 the deceased Raha would have been entitled to a monthly pension of Rs. 337c50 which\n\n-:~\n\nwould mea~ about Rs. 4,050/- per year. There can be no doubt that whole of this amount wouldi have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certificate Ext. P-4 further shows that the deceased Raha would have got death-cum-retirement gratuity to the extent of Rs. 13,500/- calculated on the basis of the presumptive average emoluments and presumptive last emoluments.\n\nIf the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13,500/- to Rs. 90,000 the total amount would come to Rs. 1,03,500/- which mav be rounded off to roughly Rs. 1,00,000/-. In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1,00,000/-, and the Courts below erred in completely overlooking these two important aspects which we hav~ discussed.\n\nIt appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insurance Companies, but unfortunately the Motor Vehicles Act has taken~ very narrew view by limiting the liability of the Insurance Companies under s. 95\n\n(2) ( d) to Rs. 2,000/- only in case of a third party.\n\nWhile our Legislature has made laws to cover every possible situation, yet it is well nigh impossible to make provisions for all kinds of situations.\n\nNevertheless where the social need of the hour re-· quires that precious human lives lost in motor accidents leaving a trail of economic disaster in the shape of their unprovided for families call for special attention of the law makers to meet this social need by providing for heavy am! adequate compensation particularly through Insurance Companies. It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Oui country can ill-afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any othet occupation dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the previous life 0£ a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula.\n\nIt is common knowledge that where a passenger travelling by a plane: dies in an accident, he gets a compensation of Rs. 1,00,000/- or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2,000 /-. Does it indicate that the life of. a passenger travellin.g by plane becomes more precious merely because he has chosen a particular conveyance and the value of his life is consi<lerably reduced if he happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience - and yet S: .95(2) (d) of the Motor Vehicles Act seems to suggest such a d1stmctton. We hope and trust that our law-makers will give serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2) (d) of the Motor\n\n< ...\n\n-~--4-{\n\nVehicles Act. We would also like to suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case.\n\nWe further hope our suggestions will be duly implemented and the observations of the highe_st Court of the country do not become a mere pious wish.\n\nIn M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transponers Insurance Co. Ltd.('1) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/- upto a maximum of Rs. 20,000/- on the plain words of s. 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor accidents.\n\nIn P. B.' Kader & Ors. v. Thatchamma and Ors.(2 ) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows :\n\n\"It is sad that an; Indian life should be so devalued by an Indian law as to cost only Rs. 2,000/-, apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in\n\nthe Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/- per individual, involved in an accident, to make 'it more realistic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice.\" We find ourselves in complete agreement with the observations made by the Kerala High Court in the aforesaid case and we would like to remind the law-makers that the time has come to take a more humane and practical view of things while passing statute like the Motor Vehicles Act in regulating compensation payable by Insurance Companies to victims of motor accidents.\n\nWe have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time.\n\nThe result is that Civil Appeals Nos. 1826 of 1968 and 132 of 1969 are dismissed and Civil Appeal No. 2310 of 1968 is allowed to this extent that the claim preferred by Raha is enhanced from Rs. 60,000/- to Rs. 1,00,000/-. As no authentic proof of any settlement between Gupta and Raha has been produced before us, the decree passed by us will be jointly and severally recoverable from Gupta and Bhuta after giving credit for the amounts received by Raha.\n\nIt will, however, be open to the executing court on proof of any full and final settlement of the claims of Raha with Gupta or any other Judgment debtor to adjust the claims accordingly under 0.23 r. 3 of the Code of Civil Procedure. In the circumstances of the case, the parties will bear their own costs in this Court.\n\nP.H.P.\n\nC.A. 1826 of 1968 and 132 of 1969 dismissed.\n\n(I) A.J.R. 1971 S.C. 1624.\n\n(2) A.LR. 1970 Kera]a 241.\n\nC.A. No. 2310 of 1968 allowed.", "total_entities": 83, "entities": [{"text": "MANJUSRI RAHA & ORS ETC", "label": "PETITIONER", "start_char": 14, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "MANJUSRI RAHA & ORS ETC", "offset_not_found": false}}, {"text": "B. L. GUl'TA & ORS. ETC", "label": "RESPONDENT", "start_char": 43, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "B. L. GUPTA & ORS. ETC", "offset_not_found": false}}, {"text": "February 9, 1977", "label": "DATE", "start_char": 69, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "February 9, 1977\n\n[V. R. KRISHNA IYER AND S. MURTAZA ALI, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 88, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "S. MURTAZA ALI, JJ.", "label": "JUDGE", "start_char": 111, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Motor Vehicles Act 1939", "label": "STATUTE", "start_char": 133, "end_char": 156, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 95(2)(d)", "label": "PROVISION", "start_char": 157, "end_char": 170, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act 1939", "statute": "Motor Vehicles Act 1939"}}, {"text": "Satindra Nath Raha", "label": "OTHER_PERSON", "start_char": 331, "end_char": 349, "source": "ner", "metadata": {"in_sentence": "Satindra Nath Raha and Uma Shankar Shastri were travelling by a bus owned by Gupta of M. P. Speedways Company.", "canonical_name": "Satyendra Nath Raha"}}, {"text": "Uma Shankar Shastri", "label": "OTHER_PERSON", "start_char": 354, "end_char": 373, "source": "ner", "metadata": {"in_sentence": "Satindra Nath Raha and Uma Shankar Shastri were travelling by a bus owned by Gupta of M. P. Speedways Company.", "canonical_name": "L'ma Shanker Shastri"}}, {"text": "Gupta", "label": "PETITIONER", "start_char": 408, "end_char": 413, "source": "ner", "metadata": {"in_sentence": "Satindra Nath Raha and Uma Shankar Shastri were travelling by a bus owned by Gupta of M. P. Speedways Company.", "canonical_name": "Gupta"}}, {"text": "M. P. Speedways Company", "label": "ORG", "start_char": 417, "end_char": 440, "source": "ner", "metadata": {"in_sentence": "Satindra Nath Raha and Uma Shankar Shastri were travelling by a bus owned by Gupta of M. P. Speedways Company."}}, {"text": "Bhind", "label": "GPE", "start_char": 468, "end_char": 473, "source": "ner", "metadata": {"in_sentence": "They were travelling from Bhind to Gwalior."}}, {"text": "Gwalior", "label": "GPE", "start_char": 477, "end_char": 484, "source": "ner", "metadata": {"in_sentence": "They were travelling from Bhind to Gwalior."}}, {"text": "Bhuta", "label": "PETITIONER", "start_char": 519, "end_char": 524, "source": "ner", "metadata": {"in_sentence": "On the' high way, a bus owned by Bhuta came from the opposite direction.", "canonical_name": "Bhuta"}}, {"text": "Raha", "label": "PETITIONER", "start_char": 688, "end_char": 692, "source": "ner", "metadata": {"in_sentence": "there was a head-on collision of the two buses, as a consequence of which Raha and Shastri sustained fatal injuries to which they succumbed on the same day in the hospital.", "canonical_name": "Rahal"}}, {"text": "Shastri", "label": "PETITIONER", "start_char": 697, "end_char": 704, "source": "ner", "metadata": {"in_sentence": "there was a head-on collision of the two buses, as a consequence of which Raha and Shastri sustained fatal injuries to which they succumbed on the same day in the hospital.", "canonical_name": "Shastri"}}, {"text": "Rahal", "label": "PETITIONER", "start_char": 796, "end_char": 801, "source": "ner", "metadata": {"in_sentence": "Widow of Rahal claimed a compensation of Rs.", "canonical_name": "Rahal"}}, {"text": "OA of the Motor Vehicles Act", "label": "STATUTE", "start_char": 854, "end_char": 882, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram\n\nSwa.rup negatived", "label": "LAWYER", "start_char": 1763, "end_char": 1785, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal filed by Mrs. Raha and dismissing the appeal filed by Gupta,\n\nHELD : l. The contention of Gupta that he should not be made liable to pay the compensation since no negligence was alleged against the driver Ram\n\nSwa.rup negatived."}}, {"text": "Ram Swamp", "label": "OTHER_PERSON", "start_char": 1896, "end_char": 1905, "source": "ner", "metadata": {"in_sentence": "Although the plaint is loosely_ drafted but it clearly contains the relief of compensation against Gupta and Ram Swamp, the driver.", "canonical_name": "Ram Swaroop"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 2654, "end_char": 2672, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 5080, "end_char": 5092, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Talat!", "canonical_name": "G. L. Sanghi"}}, {"text": "Talat! Ansari", "label": "LAWYER", "start_char": 5094, "end_char": 5107, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Talat!", "canonical_name": "Talat! Ansari"}}, {"text": "R. K. Sanghi", "label": "LAWYER", "start_char": 5109, "end_char": 5121, "source": "ner", "metadata": {"in_sentence": "Ansari, R. K. Sanghi and K. J. John.-Irn E CAs.", "canonical_name": "R. K. Sanghi"}}, {"text": "K. J. John.-Irn", "label": "OTHER_PERSON", "start_char": 5126, "end_char": 5141, "source": "ner", "metadata": {"in_sentence": "Ansari, R. K. Sanghi and K. J. John.-Irn E CAs."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5212, "end_char": 5228, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee & D. P. Mukherjee.-for Respondents 1-3."}}, {"text": "D. P. Mukherjee.-for", "label": "LAWYER", "start_char": 5231, "end_char": 5251, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee & D. P. Mukherjee.-for Respondents 1-3.", "canonical_name": "D. P. Mukherjee.-for"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5270, "end_char": 5282, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff & H. S. Parihar-for Respondent No."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 5285, "end_char": 5298, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff & H. S. Parihar-for Respondent No."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 5322, "end_char": 5332, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and A. G. Ratnaparkhi.-for Respondent No."}}, {"text": "A. G. Ratnaparkhi.-for", "label": "LAWYER", "start_char": 5337, "end_char": 5359, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and A. G. Ratnaparkhi.-for Respondent No."}}, {"text": "D. P. Mukherjee", "label": "LAWYER", "start_char": 5424, "end_char": 5439, "source": "ner", "metadata": {"in_sentence": "G. S. Chatterjee & D. P. Mukherjee, in CA No.", "canonical_name": "D. P. Mukherjee.-for"}}, {"text": "G. S. Sanghi", "label": "LAWYER", "start_char": 5488, "end_char": 5500, "source": "ner", "metadata": {"in_sentence": "G. S. Sanghi, Talat Ansari, R. K. Sanghi and K. J. Joh11 fur respoµdent No.", "canonical_name": "G. L. Sanghi"}}, {"text": "Talat Ansari", "label": "LAWYER", "start_char": 5502, "end_char": 5514, "source": "ner", "metadata": {"in_sentence": "G. S. Sanghi, Talat Ansari, R. K. Sanghi and K. J. Joh11 fur respoµdent No.", "canonical_name": "Talat! Ansari"}}, {"text": "R. K. Sanghi", "label": "LAWYER", "start_char": 5516, "end_char": 5528, "source": "ner", "metadata": {"in_sentence": "G. S. Sanghi, Talat Ansari, R. K. Sanghi and K. J. Joh11 fur respoµdent No.", "canonical_name": "R. K. Sanghi"}}, {"text": "K. J. Joh11", "label": "LAWYER", "start_char": 5533, "end_char": 5544, "source": "ner", "metadata": {"in_sentence": "G. S. Sanghi, Talat Ansari, R. K. Sanghi and K. J. Joh11 fur respoµdent No."}}, {"text": "FAZAL ALI", "label": "JUDGE", "start_char": 5700, "end_char": 5709, "source": "ner", "metadata": {"in_sentence": "FAZAL ALI, J.-'-ith the emergence of an ultra-modern age wh_1ch has led to stndes of progress in all spheres of iife; we have H switched from fast to faster vehicular traffic which has come as a boon to many, though some times in the case of some it has also\n\n946 SUP}lEME COURT REPORTS [1977] 2 s.c."}}, {"text": "s. 110", "label": "PROVISION", "start_char": 7262, "end_char": 7268, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 7276, "end_char": 7294, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 110", "label": "PROVISION", "start_char": 7387, "end_char": 7393, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "s. 95(2)", "label": "PROVISION", "start_char": 7788, "end_char": 7796, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act", "statute": "Motor Vehicles Act"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 7808, "end_char": 7826, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "B. L. Gupta", "label": "OTHER_PERSON", "start_char": 8151, "end_char": 8162, "source": "ner", "metadata": {"in_sentence": "With this little preface we now take up the facts in the appeals by certificate filed by B. L. Gupta and Smt."}}, {"text": "Manjushri Raha", "label": "PETITIONER", "start_char": 8172, "end_char": 8186, "source": "ner", "metadata": {"in_sentence": "Manjushri Raha in this Court, and which after being consolidated have been disposed of by one common judgment both by the Claims Tribunal as also by the High Court.", "canonical_name": "Manjushri Raha"}}, {"text": "Manjushri Raha", "label": "PETITIONER", "start_char": 8338, "end_char": 8352, "source": "ner", "metadata": {"in_sentence": "Manjushri Raha, the main appellant in Civil Appeal No.", "canonical_name": "Manjushri Raha"}}, {"text": "Oriental Fire & General Insurance Company", "label": "ORG", "start_char": 8479, "end_char": 8520, "source": "ner", "metadata": {"in_sentence": "2310 of 1968 will, in short, be referred to hereafter as \"Raha\",\n\nwhereas respondentS Oriental Fire & General Insurance Company would be referred to as \"Oriental Company\" and the New India Insurance Company as \"New India Company\"."}}, {"text": "New India Insurance Company", "label": "ORG", "start_char": 8572, "end_char": 8599, "source": "ner", "metadata": {"in_sentence": "2310 of 1968 will, in short, be referred to hereafter as \"Raha\",\n\nwhereas respondentS Oriental Fire & General Insurance Company would be referred to as \"Oriental Company\" and the New India Insurance Company as \"New India Company\"."}}, {"text": "Manjula Devi Bhuta", "label": "OTHER_PERSON", "start_char": 8630, "end_char": 8648, "source": "ner", "metadata": {"in_sentence": "Manjula Devi Bhuta representing the owner of vehicle No."}}, {"text": "Padmavati Shastri", "label": "RESPONDENT", "start_char": 8857, "end_char": 8874, "source": "ner", "metadata": {"in_sentence": "Padmavati Shastri, the respondent in one of the appeals, would be referred to as \"Shastri\".", "canonical_name": "Padmavati Shastri"}}, {"text": "Sushil Kumar", "label": "OTHER_PERSON", "start_char": 9094, "end_char": 9106, "source": "ner", "metadata": {"in_sentence": "6 of 1962 was filed by Raha along with her two minor children against Bhuta, Sushil Kumar driver of vehicle No.", "canonical_name": "Sushil Kumar"}}, {"text": "Orienfal Company", "label": "ORG", "start_char": 9140, "end_char": 9156, "source": "ner", "metadata": {"in_sentence": "MPG-4615, Orienfal Company, New India Company, Gupta owner of the M. P. Speedways Company and Ram Swaroop driver of vehicle No."}}, {"text": "New India Company", "label": "ORG", "start_char": 9158, "end_char": 9175, "source": "ner", "metadata": {"in_sentence": "MPG-4615, Orienfal Company, New India Company, Gupta owner of the M. P. Speedways Company and Ram Swaroop driver of vehicle No."}}, {"text": "Gupta", "label": "PETITIONER", "start_char": 9177, "end_char": 9182, "source": "ner", "metadata": {"in_sentence": "MPG-4615, Orienfal Company, New India Company, Gupta owner of the M. P. Speedways Company and Ram Swaroop driver of vehicle No.", "canonical_name": "Gupta"}}, {"text": "Ram Swaroop", "label": "OTHER_PERSON", "start_char": 9224, "end_char": 9235, "source": "ner", "metadata": {"in_sentence": "MPG-4615, Orienfal Company, New India Company, Gupta owner of the M. P. Speedways Company and Ram Swaroop driver of vehicle No.", "canonical_name": "Ram Swaroop"}}, {"text": "Raha", "label": "PETITIONER", "start_char": 9283, "end_char": 9287, "source": "ner", "metadata": {"in_sentence": "The applicant Raha claimed compenation for a\n\nsum of Rs.", "canonical_name": "Rahal"}}, {"text": "s. 110", "label": "PROVISION", "start_char": 9367, "end_char": 9373, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 9383, "end_char": 9401, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Claims Tribunal, Gwalior", "label": "COURT", "start_char": 9652, "end_char": 9676, "source": "ner", "metadata": {"in_sentence": "Both these claims were consolidated and heard and decided by one common judgment by the Claims Tribunal, Gwalior."}}, {"text": "Apnl 10, 19_62", "label": "DATE", "start_char": 9747, "end_char": 9761, "source": "ner", "metadata": {"in_sentence": "Th~ acts giving rise to the claims of Raha and Shastri were that on Apnl 10, 19_62 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No."}}, {"text": "Satyendra Nath Raha", "label": "OTHER_PERSON", "start_char": 9762, "end_char": 9781, "source": "ner", "metadata": {"in_sentence": "Th~ acts giving rise to the claims of Raha and Shastri were that on Apnl 10, 19_62 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No.", "canonical_name": "Satyendra Nath Raha"}}, {"text": "Uma Shanker Shastri", "label": "OTHER_PERSON", "start_char": 9806, "end_char": 9825, "source": "ner", "metadata": {"in_sentence": "Th~ acts giving rise to the claims of Raha and Shastri were that on Apnl 10, 19_62 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No.", "canonical_name": "L'ma Shanker Shastri"}}, {"text": "M.P. Speedways Company", "label": "ORG", "start_char": 10156, "end_char": 10178, "source": "ner", "metadata": {"in_sentence": "The driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushi!"}}, {"text": "Sushi! Kumar", "label": "OTHER_PERSON", "start_char": 10240, "end_char": 10252, "source": "ner", "metadata": {"in_sentence": "The driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushi!", "canonical_name": "Sushil Kumar"}}, {"text": "L'ma Shanker Shastri", "label": "OTHER_PERSON", "start_char": 10546, "end_char": 10566, "source": "ner", "metadata": {"in_sentence": "When the two buses were approaching in opposite directions, both the driver's being negligent and having failed to take the necessary precautions of keeping to theii; left led to a head-on collision of the two buses as a consequence of which the two persons, namely, Satyendra Nath Raha and L'ma Shanker Shastri sustained fatal injuries to which they succumbed on the same day in the Gohad Hospital. _", "canonical_name": "L'ma Shanker Shastri"}}, {"text": "Gohad Hospital", "label": "ORG", "start_char": 10639, "end_char": 10653, "source": "ner", "metadata": {"in_sentence": "When the two buses were approaching in opposite directions, both the driver's being negligent and having failed to take the necessary precautions of keeping to theii; left led to a head-on collision of the two buses as a consequence of which the two persons, namely, Satyendra Nath Raha and L'ma Shanker Shastri sustained fatal injuries to which they succumbed on the same day in the Gohad Hospital. _"}}, {"text": "Claims Tribunal, Gupta", "label": "COURT", "start_char": 11610, "end_char": 11632, "source": "ner", "metadata": {"in_sentence": "Against the decision of the Claims Tribunal, Gupta field Miscellaneous First Appeal No."}}, {"text": "Bhuta", "label": "PETITIONER", "start_char": 11690, "end_char": 11695, "source": "ner", "metadata": {"in_sentence": "203 of 1965 against Bhuta, Raha and others which was dismissed by the High Court.", "canonical_name": "Bhuta"}}, {"text": "Shastri", "label": "PETITIONER", "start_char": 12236, "end_char": 12243, "source": "ner", "metadata": {"in_sentence": "220 of 1965 against Shastri which was allowed by the High Court to this extent that the decree against Gupta and Ram Swaroop was made joint and several along with the appellant Bhuta.", "canonical_name": "Shastri"}}, {"text": "Oriental Company", "label": "ORG", "start_char": 12634, "end_char": 12650, "source": "ner", "metadata": {"in_sentence": "223 of 1965 was filed before the High Court by Oriental Company against Raha which was also dismissed along with the cross objection\n\nA which was filed by Raha for enhancement of the compensation."}}, {"text": "Sanghi", "label": "OTHER_PERSON", "start_char": 13211, "end_char": 13217, "source": "ner", "metadata": {"in_sentence": "The short point raised by Mr. Sanghi appearing for Gupta was that in the c; ircumstances the compensation awarded by the Claims Tribunal to Raha was too high and at any rate the High Court ought not to hve made the appellant Gupta liable jointly and severally with others."}}, {"text": "Saty", "label": "OTHER_PERSON", "start_char": 16000, "end_char": 16004, "source": "ner", "metadata": {"in_sentence": "On a perusal of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Saty, en-\n\n<Ira Nath Raha would have got upto the age of 55 years which has been taken at Rs."}}, {"text": "Nath Raha", "label": "OTHER_PERSON", "start_char": 16016, "end_char": 16025, "source": "ner", "metadata": {"in_sentence": "On a perusal of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Saty, en-\n\n<Ira Nath Raha would have got upto the age of 55 years which has been taken at Rs."}}, {"text": "Satyendn! Nath Raha", "label": "OTHER_PERSON", "start_char": 17186, "end_char": 17205, "source": "ner", "metadata": {"in_sentence": "1962 (i.e. the date next to the date of the death of Satyendn!"}}, {"text": "Padmavati Shastri", "label": "PETITIONER", "start_char": 20400, "end_char": 20417, "source": "ner", "metadata": {"in_sentence": "It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insurance Companies, but unfortunately the Motor Vehicles Act has taken~ very narrew view by limiting the liability of the Insurance Companies under s. 95\n\n(2) ( d) to Rs.", "canonical_name": "Padmavati Shastri"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 20506, "end_char": 20524, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 95", "label": "PROVISION", "start_char": 20612, "end_char": 20617, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 22737, "end_char": 22755, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 95(2)", "label": "PROVISION", "start_char": 22921, "end_char": 22929, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 95", "label": "PROVISION", "start_char": 23640, "end_char": 23645, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 23661, "end_char": 23679, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 23942, "end_char": 23959, "source": "ner", "metadata": {"in_sentence": "v. Thatchamma and Ors.(2 ) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows :\n\n\"It is sad that an; Indian life should be so devalued by an Indian law as to cost only Rs."}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 24944, "end_char": 24962, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25842, "end_char": 25869, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1977_2_952_955_EN", "year": 1977, "text": "UNION OF INDIA AND ANOTHER\n\nVIJA Y CHAND JAIN\n\nFebruary 9, 1977\n\n[V. R. KRISHNA IYER AND A. c. GUPTA, JJ.]\n\n. Foreign Exchange Regulation Act, 1947-s. 23(18)-Foreign Currency-- Sale proceeds in Indian c11rrency seized and confiscated-Government. if competent to confiscate.\n\nWords a'nd Phrases-\"in respect of\"-Meaning of.\n\nUnder s. 2(d) of the Foreign Exchange Regulation Act, 1947 foreign exchange means foreign currency.\n\nSection 4(1) prohibits the sale or purchase of foreign exchange by a person other than an authorised dealer except with the Permission of the Reserve Bank. Section 23(1)(a) prescribes a penalty for contravention of s. 4. Section 23 (lB) provides that, in addition to the penalty which may be imposed for such contravention, a court may direct that any curren.cy or any ot!J, er money or. property in respect of which the contravention has taken place shall be confiscated to the Central Government. The explanation to this sub-section provides that for the purpose of the sub-section property in respect of which contravention has taken place shall include deposits in a bank where the said property is converted into such deposits.\n\nA large sum of Indian currency, _which was the sale proceeds of foreign currency, was recovered from the respondent. . In addition to imposing a penalty, the Director of Enforcement confiscated the Indian currency seized from the respondent. In . a petition under art. 226 of the Constitution, the High .Court held that the Director of Enforcement had no competence to order confiscation of Indian currency because the contravention had taken place in respect of some foreign currency and not in respect of the Indian currency seized.\n\nAl)owing the a.ppeal,\n\nHELD : The currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under s. 4(1). [954HJ\n\nThe High Court was wrong in quashing the order of confiscation.\n\nThe intention of the legislature is clear from the Explanation to s. 23(1B). If, for F this sub-section any property in respect of which a contravention has taken pl, ilce includes deposits into which the property may be converted and can be reached, even where the deposits are in a bank, it is not reasonable to hold that the sale proceeds in Indian currency of foreign exchange would be outside the scope of s. 23(1B) and, therefore not liable to be confiscated. [955 A]\n\nThe words \"in respect of\" admit of a wide connotation. In the context of s. 23(1B) \"in respect of\" has been used in the sense of being \"connected with\". [954 GJ\n\nCuperd's Trustees v. Inland Revenue Commissioners 174 L.T. Rep. 133 and S. S. Li ii ht Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. & A nr fl960) 2 S.C.R. 926 referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2081 of 1968.\n\nAppeal from the Judgment and Order dated the 30-3-1967 of the Delhi High Court in Civil Appl. No. 112 .of 1966.\n\nG. L. Sa11ghi and Girish Chandra for the Appellant.\n\nY. S. Chitley and Ashok Grover for Respondent.\n\nThe Judgment of the Court was delivered by\n\nGuPTA, J.-This appeal on certificate of fitness turns on the meaning of the words \"in respect of\" occurring in section 23(1B) of_ he Fmeign Exchange Regulation Act, 1947. For a proper appreciatton ;1 of the question, it is necessary to refer to two other sections of he\n\nAct, section 4(1) and section 23(1) (a), before we turn to section\n\n23(1B).\n\nSection 4(1) lays down :\n\n\"Exliept with the previous general or special permision of the Reserve Bank, no person other than an atithonsed dealer shall in India and no pers'on resident in India other than an authorised dealer shall outside India, puy or otberwise acquire m borrow from, or sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer, any foreign exchange.\"\n\nSection 23(1) (a) provides:\n\n\"If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18A or section 18B or any rule, direction or order made thereunder, he shall -\n\n(a) be liable to such penalty not exceeding thi; ee times the value of the foreign exchange in respect of which . the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or\n\n(b) x x x\"\n\nThe part of section 23 (1 B) material for the present purpose reads :\n\n\"Any Court trying a contravention under sub-section (1) or sub-sction ( lA) and the authority adjudging any contravention under clause (a) of sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in. respect of which the contravention has taken place, shall be confiscated to the Central Government .... \"\n\nThere is an explanation to this sub-section which says : \"Explanation.-For the purposes of this sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where the said property is converted into such deposits.\"\n\nThese are the facts on which the question of construction or sec tion 23(1B) arises.\n\nOn the morning of January 28, 1966 the respondent who resides and carries on business in Delhi arrived at Palam Aifport by I.A.C. Flight No. 181.\n\nA customs officer recoverc\n\nSUPREME COURT REPORTS [1977] 2 s.C.R.\n\ned from his possession Indian currency amounting to Rs. 78,481/- which sum, the respondent admitted, was the sale proceeds of the foreign currency entrusted to him for sale by someone else.\n\nOn February 14, 1966 the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency, should not be confiscated.\n\nThe second appellant was the authority adjudging under section 23(1) (a) an alleged contravention of the provisions of cction 4.\n\nOn October 14, 1966 the second appellant held on the evidence before him that the respondent was guiliy of contravening the pro.visions of section 4(1) apd imposed a penalty of Rs. 50,000/- under section 23(1)(a). He further directed the sum of 78,481/- seized from the ,\" respondent to be confiscated under section 23 (lB). The respondent moved the High Court of Delhi under Article 226 of the Constitution 5eeking an appropriate writ quashing the order of confiscation.\n\nThe High Court viewed the matter as follows :\n\n\"What has happened is that foreign currency had been sold for Indian currency.\n\nIn other words, a contravention under section 23 (1 )(a) had taken place in respect of some foreign currency and not in respect of the Indian currency seized.\"\n\nAccordingly, the High Court held that the Director of Enforcement \"had no competence to order the confiscation of the Indian currency in question\" and quashed the impugned order.\n\nThe contravention alleged is of section 4 ( 1) which prohibits, inter alia, sale of any foreign exchange.\n\nForeign exchange as defined in section 2(d) means foreign currency.\n\nUnder section 23(1B) any currency, security, gold or silver, or goods or any other money or property \"in respect of which\" the contravention has taken place is liable to be confiscated to the Central Government. The currency .confiscated in this case was Indian currency.\n\nThe question is whether the Indian currency constituting the sale proceeds of foreign exchange seized from the respondent was currency in respect of which the contravention had taken place.\n\nThe words \"ill respect of\" admit of a wide connotation; Lord Greene M.R. in Cuperd's Trustees v. Ill/and Revenue Commissioner, C) calls them colourless words. This Court in S. S. Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. & Anr.( 2), construction these words in section 3(14) of the Indian Railways Act, 1890 has held that they are very wide. It seems to us that in the context of section 23 ( lB) in respect of has been used in the sense of being \"connected with' and we have no difficulty in holding that the currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under section 4 ( 1). The intention of the legislature is clear from the explanation to sub-section (lB) of section 23 which provides that \"for\n\n(1) 174 L.T. Rep. 133.\n\n(2) (1960] 2 S.C.R. 926.\n\nthe purpo.ses of the sub-section property 'in respect of which contra vention has taken place shall include deposits in a bank, where such property is converted into such deposits.\" If for this sub-section any pro- . perty in respct of which a c_ontravention has taken place includes deposits into which the property may be converted and can reached even where the deposits are in a bank, it is not reasonable to think that the sale proceeds in Indian currency of any forign exchange would be outside. the scope of section 23 ( 1B) and therefore not liable to be confiscated. In our opinion the High Court was wrong in quashing the order of confiscation which we consider valid and lawful.\n\nThe appeal is accordingly allowed with costs.\n\nP.B.R.\n\nAppeal allowed.\n\n13-206SCI/77", "total_entities": 64, "entities": [{"text": "UNION OF INDIA AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA AND ANOTHER", "offset_not_found": false}}, {"text": "VIJA Y CHAND JAIN", "label": "RESPONDENT", "start_char": 28, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "VIJAY CHAND JAIN", "offset_not_found": false}}, {"text": "February 9, 1977", "label": "DATE", "start_char": 47, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA AND ANOTHER\n\nVIJA Y CHAND JAIN\n\nFebruary 9, 1977\n\n[V. R. KRISHNA IYER AND A. c. GUPTA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 66, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. c. GUPTA, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 110, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "s. 23(18)", "label": "PROVISION", "start_char": 148, "end_char": 157, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act, 1947", "statute": "Foreign Exchange Regulation Act, 1947"}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 329, "end_char": 336, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act, 1947", "statute": "Foreign Exchange Regulation Act, 1947"}}, {"text": "Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 344, "end_char": 381, "source": "regex", "metadata": {}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 424, "end_char": 436, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Section 23(1)(a)", "label": "PROVISION", "start_char": 580, "end_char": 596, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 639, "end_char": 643, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 645, "end_char": 655, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Central Government", "label": "ORG", "start_char": 903, "end_char": 921, "source": "ner", "metadata": {"in_sentence": "property in respect of which the contravention has taken place shall be confiscated to the Central Government."}}, {"text": "art. 226", "label": "PROVISION", "start_char": 1422, "end_char": 1430, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 1866, "end_char": 1873, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1B)", "label": "PROVISION", "start_char": 2014, "end_char": 2023, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1B)", "label": "PROVISION", "start_char": 2359, "end_char": 2368, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(1B)", "label": "PROVISION", "start_char": 2496, "end_char": 2505, "source": "regex", "metadata": {"statute": null}}, {"text": "Cuperd", "label": "JUDGE", "start_char": 2585, "end_char": 2591, "source": "ner", "metadata": {"in_sentence": "954 GJ\n\nCuperd's Trustees v. Inland Revenue Commissioners 174 L.T. Rep. 133 and S. S. Li ii ht Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. & A nr fl960) 2 S.C.R. 926 referred to."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 2955, "end_char": 2969, "source": "ner", "metadata": {"in_sentence": "G. L. Sa11ghi and Girish Chandra for the Appellant."}}, {"text": "Y. S. Chitley", "label": "LAWYER", "start_char": 2990, "end_char": 3003, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitley and Ashok Grover for Respondent."}}, {"text": "Ashok Grover", "label": "LAWYER", "start_char": 3008, "end_char": 3020, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitley and Ashok Grover for Respondent."}}, {"text": "GuPTA", "label": "JUDGE", "start_char": 3082, "end_char": 3087, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGuPTA, J.-This appeal on certificate of fitness turns on the meaning of the words \"in respect of\" occurring in section 23(1B) of_ he Fmeign Exchange Regulation Act, 1947."}}, {"text": "section 23(1B)", "label": "PROVISION", "start_char": 3193, "end_char": 3207, "source": "regex", "metadata": {"statute": null}}, {"text": "Fmeign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 3215, "end_char": 3251, "source": "regex", "metadata": {}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 3358, "end_char": 3370, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 23(1)", "label": "PROVISION", "start_char": 3375, "end_char": 3388, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section\n\n23(1B)", "label": "PROVISION", "start_char": 3412, "end_char": 3427, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "Section 4(1)", "label": "PROVISION", "start_char": 3430, "end_char": 3442, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "India", "label": "GPE", "start_char": 3584, "end_char": 3589, "source": "ner", "metadata": {"in_sentence": "Section 4(1) lays down :\n\n\"Exliept with the previous general or special permision of the Reserve Bank, no person other than an atithonsed dealer shall in India and no pers'on resident in India other than an authorised dealer shall outside India, puy or otberwise acquire m borrow from, or sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer, any foreign exchange.\""}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 3843, "end_char": 3856, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 4", "label": "PROVISION", "start_char": 3917, "end_char": 3926, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 5", "label": "PROVISION", "start_char": 3928, "end_char": 3937, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 9", "label": "PROVISION", "start_char": 3939, "end_char": 3948, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 10", "label": "PROVISION", "start_char": 3950, "end_char": 3960, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 12", "label": "PROVISION", "start_char": 3981, "end_char": 3991, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 17", "label": "PROVISION", "start_char": 3993, "end_char": 4003, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 18A", "label": "PROVISION", "start_char": 4005, "end_char": 4016, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 18B", "label": "PROVISION", "start_char": 4020, "end_char": 4031, "source": "regex", "metadata": {"linked_statute_text": "Fmeign Exchange Regulation Act, 1947", "statute": "Fmeign Exchange Regulation Act, 1947"}}, {"text": "section 23", "label": "PROVISION", "start_char": 4400, "end_char": 4410, "source": "regex", "metadata": {"statute": null}}, {"text": "January 28, 1966", "label": "DATE", "start_char": 5296, "end_char": 5312, "source": "ner", "metadata": {"in_sentence": "On the morning of January 28, 1966 the respondent who resides and carries on business in Delhi arrived at Palam Aifport by I.A.C. Flight No."}}, {"text": "Delhi", "label": "GPE", "start_char": 5367, "end_char": 5372, "source": "ner", "metadata": {"in_sentence": "On the morning of January 28, 1966 the respondent who resides and carries on business in Delhi arrived at Palam Aifport by I.A.C. Flight No."}}, {"text": "February 14, 1966", "label": "DATE", "start_char": 5686, "end_char": 5703, "source": "ner", "metadata": {"in_sentence": "On February 14, 1966 the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency, should not be confiscated."}}, {"text": "Enforcement Directorate, Ministry of Finance", "label": "ORG", "start_char": 5736, "end_char": 5780, "source": "ner", "metadata": {"in_sentence": "On February 14, 1966 the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency, should not be confiscated."}}, {"text": "section 23(1)", "label": "PROVISION", "start_char": 6015, "end_char": 6028, "source": "regex", "metadata": {"statute": null}}, {"text": "October 14, 1966", "label": "DATE", "start_char": 6093, "end_char": 6109, "source": "ner", "metadata": {"in_sentence": "On October 14, 1966 the second appellant held on the evidence before him that the respondent was guiliy of contravening the pro.visions of section 4(1) apd imposed a penalty of Rs."}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 6229, "end_char": 6241, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23(1)(a)", "label": "PROVISION", "start_char": 6286, "end_char": 6302, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 6398, "end_char": 6408, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Delhi", "label": "COURT", "start_char": 6440, "end_char": 6459, "source": "ner", "metadata": {"in_sentence": "The respondent moved the High Court of Delhi under Article 226 of the Constitution 5eeking an appropriate writ quashing the order of confiscation."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 6466, "end_char": 6477, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 6728, "end_char": 6738, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7063, "end_char": 7072, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 7169, "end_char": 7181, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23(1B)", "label": "PROVISION", "start_char": 7213, "end_char": 7227, "source": "regex", "metadata": {"statute": null}}, {"text": "Greene", "label": "OTHER_PERSON", "start_char": 7732, "end_char": 7738, "source": "ner", "metadata": {"in_sentence": "The words \"ill respect of\" admit of a wide connotation; Lord Greene M.R. in Cuperd's Trustees v. Ill/and Revenue Commissioner, C) calls them colourless words."}}, {"text": "section 3(14)", "label": "PROVISION", "start_char": 7944, "end_char": 7957, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railways Act, 1890", "label": "STATUTE", "start_char": 7965, "end_char": 7990, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 23", "label": "PROVISION", "start_char": 8063, "end_char": 8073, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "section 4", "label": "PROVISION", "start_char": 8331, "end_char": 8340, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "section 23", "label": "PROVISION", "start_char": 8433, "end_char": 8443, "source": "regex", "metadata": {"linked_statute_text": "the Indian Railways Act, 1890", "statute": "the Indian Railways Act, 1890"}}, {"text": "(1960] 2 S.C.R. 926", "label": "CASE_CITATION", "start_char": 8498, "end_char": 8517, "source": "regex", "metadata": {}}, {"text": "section 23", "label": "PROVISION", "start_char": 9035, "end_char": 9045, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_956_963_EN", "year": 1977, "text": "KRISHAN MURARI LAL SEHGAL\n\nSTATE OF Pl.JNJAB\n\nFebruary 9, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nConstitutio11 of 111dia-A rticle 311 (1), dismissal by a person subordinate to appointing authority-States Reorganisation Act, 1956-Sec. 115(7), 116(1) -Varying conditions of service of an allocated Gol'emmelll servaiit to llis disadvantage-Effect of reorganisation-Different a111hority i11 state before and after reorganisation-Patiala & East Puniab States Unio11 Civil Serl'ices (P1111ish- 111ent & Appeals) Rules, 1953-Pepsu General Clauses Act-Sec. 2(41 )- Meaning of State r.ovemment-Punjab Financial Commissioner's Office (State Service Class Ill) Rules, 1957-Central Government Circular dated 11-5-1957 issued under States Reorga11isatio11 A ct, 1956.\n\nThe appellant was appointed as a clerk in the Patiala State in 1948.\n\nOn the formation of the new State of Punjab in 1956, the appellant was integrated in the service of the new State of Punjab as permanent Assistant.\n\nThe appellant overstayed leave and, therefore, after holding an enquiry the Financial Commissioner. Punjab dismissed him from service in October, 1959.\n\nAppellant filed two suits. one for a declaration that his dismissal order was void and illegal second for arrears of salary on the basis that the dismissal was illegal.\n\nThe trial Court decreed both the suits.\n\nThe High Court in appeal reversed the decrees of the trial Court and dismissed the suits.\n\nIn the appeals by certificate the appellant contended that the aopellant was confirmed in the State of Patiala bv the order of the Raj Pram1ikh.\n\nBefore its integraiion he was governed by the Patiala and East Punjab States Union Civil Services (Punishment and Appeal) Rules 1953 which were made in exercise of powers conferred by proviso to Art. 309 of the Constitution.\n\nBy a notification of the Punjab Government dated 9-2-1957 the said 1953 Rules were made applicable to the corresponding services from !st November, 1956 onwards till further orders in the new State of Punjab.\n\nUnder the 1953 Rules, the State Government was tlie appropriate authority for dismissing members of Class III and IV.\n\nUnder section 2(46) of the Pepsu General Clauses Act,\n\n1953. state Government means the Rai Pramukh. The appellant. therefore, contended that he cannot he removed from service by any authority subordinate to the Governor of Punjab and since the Financial Commissioner is an authority subordinate to the Governor. he was not competent to pass the order of dismissal.\n\nThe respondent contended that the appointing authority for the post held by the appellant in the State of Punjab is the Financial Commissioner and, therefore. he is the appropriate authority under s. 116 (I) of the States Reorganisation Act, 1956 to impose the penalty of dismissal.\n\nSecondly, in the present case the Punjab Financial Commissioner's Office (State Services Class Ill) Rnles. 1957. applv.\n\nAlthough the said rules are more disadvantageous to the appellant since they have received the approval of the Central Government by the General Circular dated 11-5-1957, the appellant was rightly dismissed bv the Financial Commissioner.\n\nAllowing the apDeals,\n\nHELD: I. Section 116(1) merely provides that the appellant shall continue to hold the same post in the new State of Punjab and shall be d.eemed to have been duly appointed to such post by the Government of Pun1ab.\n\nThe\n\nfct that in the new State of Punjab the Financial Comm!ssioner is the appropriate authority for appointing Assistants is abs?]utely meleyant. 1:, Jnder s. 115(7) of the States Reorganisation Act the cond1hons of service apphcaole to\n\n• •\n\n-KRrSHAN ~MURARILAL v. PUNJA_B (Goswami., !.) 957\n\n.a civil servant immediately before the appointed day cannot be varied to his A disadvantage except with the previous approval of the Central Government. One of the condition of service of the apellant on the appointed day was tha-t since he was appointed by 1'.he State Government of Pepsu he could only be\n\n.. dismissed by the State Go\\!ernment of Pepsu if he had contin.ued there.\n\n[961 H, 962 A]\n\n2. The Memorandum of 11-5-1957 cannot be called in aid as previous approval :because the Punjab Financial Commissioner's Office Rules 1957 were . B promulgated on \"28'2C1957 before the Circular dated 11-5-1957 was issued. No approval of the Central Government has been produced.\n\nTherefore, authority subordinate to the Governor of Punjab was not competent'to pass an order of ·dismissed of the apellant. T962 D-El\n\n~' The Court set aside the judgment and decrees of the High Court and res- ' -tored those of the trial Court. (963 El\n\nTakhatray Shivdatray Mankad v. Stale of Gujarat [1970] (1) SCR 244 a0nd C 8/10/anath J. Thaker v. The State of Snurashtra AIR 1'.l54 SC 680, followed.\n\nN. Raghavendra Rao v. Deputy Commissioner, South Kamara, Mnngalore ·(1964] (7) SCR 549 and Mohammad Shujat Ali & Ors. etc. v. Union of Ti1dia .& Ors. etc. f19751 (1) SCR 449, distinguished. ·\n\nRaji-i Amar Singh v. The State of Rajasthan, [1958] SCR 1013, distinguished.\n\nMysore State and Road Transport Corporation etc. v. Miria Khasim Ali, D Beg & Anr., C. As. 'Nos. 1601-1609 and 2402-2405 of 1968 dt. 1-12-1976 •followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1298 and 1299 of 1969.\n\nAppeal from the Judgment and Decree dated the 9th August, 1966 of the Punjab and Haryana High Court in Regular First Appeals Nos. 134 and 120 of 1963.\n\nN. H. Hingorani for the Appellant.\n\n0. P. Sharma for Respondent.\n\nThe Judgment of the Court was delivered\n\nGoswAMI, J.-These appeals are by certificate of the High Court F -of Punjab and Haryana. Civil Appeal No. 1299 of 1969 is concerned with the appellant's suit for declaration of his dismissal order dated October 21, 1959, as void and illegal.\n\nCivil Appeal No. 1298 of 1969 arises out of his suit for arrears of salary.\n\nBoth the matters were heard together in the High Court and the judgment out of which Civil Appeal No. 1299 of 1969 arises is the principal judgment following which a short order was passed by the High Court dismissing the G other suit of the appellant for arrears of salary.\n\nThe High Court granted certificates in both the appeals.\n\nIt will be sufficient to deal with Civil Appeal No. 1299 of 1969 in this judgment as the decision therein will govern the other appeal.\n\nThe facts may now be briefly stated :\n\nThe appellant who was the plaintiff in the court below was appoint- H ed as a Clerk in the Pa ti ala State some time in July 1948. On the formation of the new State of Punjab on November 1, 1956, with the\n\nSUPREME EOURT REPORTS [1977] 2 s.c.R.\n\nmerger of the erstwhile Pepsu and Punjab States the appellant was integrated in the service of the new State of Punjab as permanent Assistant in the grade of Rs. 150-10-300/- and was actually getting Rs. 170/- per month on October 21, 1959, the date of his dismissal in the office of the Financial Commissioner, Punjab.\n\nThe appe.llnt instituted a suit in March 1962 challenging his order of dismissal dated October 21, 1959, as VIQid and unconstitutional praying for a declaration that he continued to be in service of the Punjab St(lt~.\n\nIn June 1962 he instituted a second suit .as pauper claiming a decree for about Rs. 8,689/- as arrears of his salary and allowances and also a further decree for Rs. 278/12/- per mensem from 5.6.1962 to 4.7.1962 and Rs. 290/- per mensem from -\n\n5. 7.1962 upto the date of the decree.\n\nBoth the suits were decreed by the trial court.\n\nAccording to the plaint, the appellant, due to rious illness of .his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the sanction of the competent authority.\n\nHe obtained extension of leave on account of illness of his mother, wife and daughter.\n\nMeanwhile the appellant himself became seriously ill and prayed for leave from 1.11.1958 to 28.2.1959 on the basis of a medical certificate granted by Dr. lnder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala.\n\nThe authoriti, es declined to sanction the leave.\n\nThe appellant also continued to be seriously ill and was unable to attend his duties.\n\nWhen he recovered he reported for duty at Simla on March 2, 1959 and he was permited to resume his duty on furnishing a certificate. of fitness granted by the aforesaid Retired Civil Surgeon.\n\nOn January 27, 1959, the appellant was served with a chargesheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his wilfol absence from duty after the expiry of the earned\n\nleave sanctioned to him upto October 31, 1958, which was described F as \"misbehaviour\". The chargesheet, inter alia, stated :\n\n\"(1) ...... You deliberately deed the orders and again applied for extension of leave upto he 31st December, 1958 feigning yourself to be ill, and also threatened that iii case leave was not allowed, you might be granted interview with the Rev\\!nue Minister .... \"\n\nx x x x\n\n(2) That on the one hand you have bf:en applying for grant of extension of leave on account of your own illness and on the other, you have requested that you may be allowed to appear in B.A. Examination to be held in April, 1959.\n\nThis, therefore, clearly shows that you are not actually ill but are malingering;. and have knowingly defi11d Government orders..\n\n(3) That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is a misbehaviour\".\n\nThe appellant submitted his explanation on March 11, 1959. There was an enquiry by the Deputy Secretary (Development) in May 1959.\n\nHe was served with a second show cause notice on August 14, 1959, enclosing the report of the Enquiry Officer. The appellant submitted his representation to the said notice on October 6, 1959.\n\nOn October 21, 1959, the Financial Commissioner (Revenue) passed the order of dismissal. As already stated, two suits were filed by the appellant in 1962. The Subordinate Judge, First Class, Patiala, decreed bot.h the suits on January 15, 1963. The State Government appealed to the High Court and the same was allowed on August 9, 1966 and both the suits were dismissed.\n\nThat is how these appeals came before us on certificates. ·\n\nWe are concerned in these appeals with oHly one point which, if it is held in favour of the appellant, will conclude the matter and it will not be necessary to deal with the other questions with reference to the illegalities in the course of the departmental enquiry alleged by the appellant.\n\nIt is submitted on behalf of the appellant that the order of dismissal is invalid on account of violation of Article 311 ( l) of the Constitution. The following facts are relied upon by the appellant in order to mstain his submission.\n\nIt is admitted by the respondent that the appellant initially joined i; ervice in the State of Pafiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31, 1956, of His Highness the Rajpramukh, which is the previous day of the 'appointed day' under the State Reorganisation Act, 1956.\n\nThus he was integrated in _the new State of Punjab as a confim1ed Assistant. Before hfs integration in Punjab he was governed by the Patiala and East Punjab States Union Civil Services (Pui;;_hment and\n\nAppeal) Rules, 195} (brifly th~ Pepsu Rules) which were made in exercise of the powers conferred by tM prov:~~ t0 Artie!~ 399 of !he Constitution. By a Notification of the Punjab Government No. 916'°: GII-00 /2499; dated February 9, 1957, these Pepsu Rules continue to apply asrfrom 1st Noyember, 1956, to the corresponding services, posts and personnel of the new State of Punjab till further orders .. . Rule 6 of the Pepsu Rules provides as follows :- ··\n\n\"6. Authority to impose punishment-Subject to the provisions of clause (1) of Article 311 of the Constitution\n\nof India, the authorities competent to impose any of the penalties specified in rule 4 upon the persons to whom these rules apply, shall be such as may be prescribed by Government in the rules regulating the 2ppoiritment and conditions of service of such persons\". , H\n\nDismissal is one of the penalties provided under rufo 4 (see rule 4 (vii). As provided under Rule 6 above me1itioned, ti1e Rajpramukh\n\nunder Article 309 of the Constitution by a notification in the Pepsu Gazette of June 27, 1954, made appropriate rules on 14th June, 1954, determining the authorities competent to impose penalties on. members of certain services and holders of certain posts in connection with the affairs of the State. Item No. 14 in the Schedule to these rules mentions \"Members of Class III and IV Services in Sectt.\" and. the punishing authority for dismissal of such employees is the State Government. It is, therefore, clear that under the Pepsu Rules which governed his conditions of service the State Government alone was competent to impose the punishment of dismissal.\n\nUnder the Pepsu General Clauses Act, 1953, \"State Government shall mean, in relation to anything done or to be done after the commencement of the Con-- stitution, the Rajpramukh\". (See section 2 ( 46).\n\nAs noted earlier, factually, the appellant was confirmed and neces-- sarily appointed by the Rajpramukh. Under the Pepsu Rules the Rajpramukh alone was the appointing authority.\n\nThe appellant therefore, cannot be removed from service by any authority subordinate to the Governor in Punjab. The coordinate authority in Punjab is the State Government. The Governor of Punjab alone, therefore, was competent to pass the order of dismissal of the appellant.\n\nThe Financial Commissioner (Revenue) is an authority subordinate to the Governor. He was, therefore, not competent to pass the order of dismissal.\n\nThe order of dismissal is violative of Article 311 ( 1) of the Constitution and is, therefore, invalid and is liable to be struck down.\n\nE Mr. Sharma, on behalf of the respondent, submits that there is no violation of Article 311 ( 1) of the Constitution.\n\nThe appointing authority for a post heldi by the appellant in the State of Punjab is the Financial Commissioner (Revenue).\n\nHe submits that the appointing authority of the appellant before his integration into the State of Punjab does not come into the picture. He adds that this submision of his is in consonance with the provisions of section 116 of the States F Reorganisation Act, 1956 (briefly the Act). We may, therefore, read' section 116 of the Act :\n\n\"116 (1) Every person who immediately beforo the appointed day is holding or discharging the duties of ariy post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls with- G in another existing State or a new Part A State or a Part C State shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or H office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Part C State, as the case may be\n\n(2) Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his co_!ltinuance in such post or office\".\n\nMr. Sharma submits, relying upon the provisions of section 116(1), that since the appointing authority for an Assistant in the State of Punjab is the Financial Commissioner (Revenue) it follows that he is the appropriate authority under section 116 ( 1) to impose the penalty of dismissal.\n\nThis submission follows from what the High Court accepted in the impugned judgment in the following words :\n\n\"Our attention has not been drawn on behalf of the learned counsel for the respondent to any rule according to which the Governor of Punjab, as is contended, is the proper authority for the appointment of Assistants.\n\nIndeed, it is not disputed that if the plaintiff had been appointed as Assistant in the State of Punjab, then the Financial Commissioner (Revenue) would have been the appropriate authority competent to enquire into the petitioner's conduct and impose the penalty _of dismissal; in other words, in that case, the appointing authority could not have been higher in rank than the Financial Commissioner (Revenue). It is certainly not the plaintiff's-respondent's case that appropriate authority for appointing Assistants in the State of Punjab is the Governor\".\n\nWe are unable to appreciate the above line of reasoning of the High Court. Section 116 (1) is very clear. To concretise the appellant's case in terms of section 116(1), it is sufficient to state1 that the appellant who, immediately before the appointed day, was holding the post of an Assistant in the former State of Pepsu, shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have been: duly appointed to such post by the Government of Punjab.\n\nWe are not concerned in the instant case about the appointment being deemed to be made by \"other appropriate authority\" in the State of Punjab since the appellant had been appointed by the Rajpramukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new State of Punjab is the Governor of Punjab.\n\nThe argument that in the new State of Punjab the Financial Commissioneu (Revenue) is the appropriate authority for appointing Assistants is absolutely irrelevant in the context of section 116 (1) which enables the status quo ante to continue except where the post ceases to exist under the provisions of the Act.\n\nIt is also important to bear in mind the provisions of se'ction 115 ( 7) of the Act where under the proviso thereto \"the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section ( 1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government\".\n\nOne of the conditions of service of the appellant was that having been appointed by the State Government of Pepsu he cold be only dismissed by the State Government of Pepsu if he had contmued there.\n\nUnder section 116 when he is integrated in the new State of Punjab he carries with him 'that condition of service with regard to his termi~ nation of employment and it cannot be varied to his disadvantage under section 115 (7) of the Act except with the previous approval of the Central Govermrient. (See Takhatray Shivdatray Mankad v.\n\nState of Gu; arat(') and Bholanath J.\n\nThakar v.\n\nThe State of Saurashtra('). .No such approval of the Central Government in the instant case is produced before us. It is, therefore, clear that an authority subordinate to the Governor of Punjab was not competent to pass the order of dismissal of the appellant.\n\nMr. Sharma submits that the Punjab Financial Commissioner's Office (State Service Class Ill) Rules, 1957, are ap'plicable in the instant case.\n\nTherefore, under rule 4 thereof the Financial Commissioner is the appointing authority for Assistants, the category to which the appellant belongs. He add; i that even though these Rules may be disadvantageous to the appella1 t he cannot complain on account of the approval of these Rules by the Central Government under section 115 (7) of the Act. Mr. Sharma submits that these Rules received the approval of the Central Government as will appear from the general circular dated May 11, 1957, to all the State Governments. He further submits that in N. Rag'1avendra Rao v. Deputy Commissioner, South Kanara, Mangalore( 3) ahd in a recent decision in Mohammad\n\nShujat Ali & Ors. etc. v. Union of India & Ors. etc.,(4 ) this Court referred to that circular of May 11, 1957, and held that that circular amounted to general approval under the proviso to section 115(7) of the Act.\n\nWe are, however, unable to see how this memorandum o~ May 11, 1957, can be called ip. aid as 'previous approval' under section 115(7) of the Act when tpe Punjab Financial Commissioner's Office (State Service, Class III) Rules, 1957 were already promulgated on February 28, 1957.\n\nApproval under section 115(7) is previous approval and not subsequent ratification.\n\nThe above decisions, therefore, do not come to the aid of the respondent.\n\nMr. Sharma also drew our !attention to a decision of this Court in Rajvi Amar Singh v. The State of Rajasthan(5 ) which is clearly di'stinguishable on facts. This Court was not called upon in that case to consider the provisions of the State Reorganisation Act.\n\nOur attention has been dra, wn by the appellant to an unreported judgment of this Court in Mysre State and Road Transport Corporation, etc. v. Mirja KhaS<im Ali Beg & Anr. etc. (6) pronounced on December 1, 1976. This Court had to deal with a similar question although appertaining to the \"competent authority\" under section 116(2) of the Act in the background of Article 311 (1) of the Constitution. The following passage from that decision will make the point clear :\n\n(1) [1970] 1 S.C.R. 244.\n\n(2) A.I.R. 1954 S.C. 680.\n\n\n(4) [1975] l S.C.R. 449.\n\n(5) [1958) S.C.R. ion.\n\n(6) C. A.S. Nos. 1601-1609 & 2402-2405 of 1968 dated 1-12-1976.\n\n\\ ..\n\n\"In the instant cases, the first respondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State.\n\nOn the coming into force of the States Reorganisation Act, 1956, on November 1, 1956, they were to he deemed by virtue of sub-section (1) of section 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or coordinate in rank with the aforesaid authority on the . relevant date being the General Manager of the Mysore G(wemment Road Transport Department aq::ording to the appellants' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority' in terms of sub-section (2) of section 116 of the States Reorganisation Act, 1956. The fact that there was :no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of 110 consequence. Such being the position, the first respondent could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Artile 311 of the Constitution read with section 115 ( 7) of the States Reorganisation Act, 1956 ...... \".\n\nJn the result both the judgments 0£ the High Court are set aside\n\n~ and the judgments and decrees of the Subordinate Judge, First Class, ., Patiala, stand restored. The appeals are allowed with costs. We are thankful to Mr. Hingorani for his assistance as amicus curiae in these appeals.\n\nP.H.P .\n\nAppeals allowed.", "total_entities": 96, "entities": [{"text": "KRISHAN MURARI LAL SEHGAL", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "KRISHAN MURARI LAL SEHGAL", "offset_not_found": false}}, {"text": "February 9, 1977", "label": "DATE", "start_char": 46, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "JNJAB\n\nFebruary 9, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 65, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 205, "end_char": 236, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 115(7), 116(1)", "label": "PROVISION", "start_char": 237, "end_char": 256, "source": "regex", "metadata": {"linked_statute_text": "States Reorganisation Act, 1956", "statute": "States Reorganisation Act, 1956"}}, {"text": "Pepsu General Clauses Act", "label": "STATUTE", "start_char": 527, "end_char": 552, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 2(41 )", "label": "PROVISION", "start_char": 553, "end_char": 564, "source": "regex", "metadata": {"linked_statute_text": "Pepsu General Clauses Act", "statute": "Pepsu General Clauses Act"}}, {"text": "11-5-1957", "label": "DATE", "start_char": 705, "end_char": 714, "source": "ner", "metadata": {"in_sentence": "2(41 )- Meaning of State r.ovemment-Punjab Financial Commissioner's Office (State Service Class Ill) Rules, 1957-Central Government Circular dated 11-5-1957 issued under States Reorga11isatio11 A ct, 1956."}}, {"text": "new State of Punjab", "label": "RESPONDENT", "start_char": 859, "end_char": 878, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "Patiala", "label": "GPE", "start_char": 1542, "end_char": 1549, "source": "ner", "metadata": {"in_sentence": "In the appeals by certificate the appellant contended that the aopellant was confirmed in the State of Patiala bv the order of the Raj Pram1ikh."}}, {"text": "Raj Pram1ikh", "label": "OTHER_PERSON", "start_char": 1570, "end_char": 1582, "source": "ner", "metadata": {"in_sentence": "In the appeals by certificate the appellant contended that the aopellant was confirmed in the State of Patiala bv the order of the Raj Pram1ikh.", "canonical_name": "Raj Pram1ikh"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 1780, "end_char": 1788, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Government", "label": "ORG", "start_char": 1836, "end_char": 1853, "source": "ner", "metadata": {"in_sentence": "By a notification of the Punjab Government dated 9-2-1957 the said 1953 Rules were made applicable to the corresponding services from !"}}, {"text": "9-2-1957", "label": "DATE", "start_char": 1860, "end_char": 1868, "source": "ner", "metadata": {"in_sentence": "By a notification of the Punjab Government dated 9-2-1957 the said 1953 Rules were made applicable to the corresponding services from !"}}, {"text": "Punjab", "label": "GPE", "start_char": 2012, "end_char": 2018, "source": "ner", "metadata": {"in_sentence": "st November, 1956 onwards till further orders in the new State of Punjab."}}, {"text": "section 2(46)", "label": "PROVISION", "start_char": 2146, "end_char": 2159, "source": "regex", "metadata": {"statute": null}}, {"text": "Pepsu General Clauses Act", "label": "STATUTE", "start_char": 2167, "end_char": 2192, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 116", "label": "PROVISION", "start_char": 2704, "end_char": 2710, "source": "regex", "metadata": {"linked_statute_text": "the Pepsu General Clauses Act,\n\n1953", "statute": "the Pepsu General Clauses Act,\n\n1953"}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 2722, "end_char": 2753, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Punjab Financial Commissioner's Office (State Services Class Ill) Rnles. 1957", "label": "RESPONDENT", "start_char": 2825, "end_char": 2902, "source": "ner", "metadata": {"in_sentence": "Secondly, in the present case the Punjab Financial Commissioner's Office (State Services Class Ill) Rnles."}}, {"text": "Central Government", "label": "ORG", "start_char": 3023, "end_char": 3041, "source": "ner", "metadata": {"in_sentence": "Although the said rules are more disadvantageous to the appellant since they have received the approval of the Central Government by the General Circular dated 11-5-1957, the appellant was rightly dismissed bv the Financial Commissioner."}}, {"text": "Section 116(1)", "label": "PROVISION", "start_char": 3183, "end_char": 3197, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}, {"text": "s. 115(7)", "label": "PROVISION", "start_char": 3546, "end_char": 3555, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 3563, "end_char": 3588, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Office Rules 1957", "label": "STATUTE", "start_char": 4206, "end_char": 4223, "source": "regex", "metadata": {}}, {"text": "N. H. Hingorani", "label": "LAWYER", "start_char": 5423, "end_char": 5438, "source": "ner", "metadata": {"in_sentence": "N. H. Hingorani for the Appellant."}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 5462, "end_char": 5471, "source": "ner", "metadata": {"in_sentence": "P. Sharma for Respondent."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 5530, "end_char": 5537, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered\n\nGoswAMI, J.-These appeals are by certificate of the High Court F -of Punjab and Haryana."}}, {"text": "Simla", "label": "GPE", "start_char": 7571, "end_char": 7576, "source": "ner", "metadata": {"in_sentence": "According to the plaint, the appellant, due to rious illness of .his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the sanction of the competent authority."}}, {"text": "8th July, 1958", "label": "DATE", "start_char": 7628, "end_char": 7642, "source": "ner", "metadata": {"in_sentence": "According to the plaint, the appellant, due to rious illness of .his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the sanction of the competent authority."}}, {"text": "1.11.1958", "label": "DATE", "start_char": 7858, "end_char": 7867, "source": "ner", "metadata": {"in_sentence": "Meanwhile the appellant himself became seriously ill and prayed for leave from 1.11.1958 to 28.2.1959 on the basis of a medical certificate granted by Dr. lnder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala."}}, {"text": "28.2.1959", "label": "DATE", "start_char": 7871, "end_char": 7880, "source": "ner", "metadata": {"in_sentence": "Meanwhile the appellant himself became seriously ill and prayed for leave from 1.11.1958 to 28.2.1959 on the basis of a medical certificate granted by Dr. lnder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala."}}, {"text": "lnder Singh Sodhi", "label": "OTHER_PERSON", "start_char": 7934, "end_char": 7951, "source": "ner", "metadata": {"in_sentence": "Meanwhile the appellant himself became seriously ill and prayed for leave from 1.11.1958 to 28.2.1959 on the basis of a medical certificate granted by Dr. lnder Singh Sodhi, Retired Civil Surgeon, Pepsu, Patiala."}}, {"text": "March 2, 1959", "label": "DATE", "start_char": 8182, "end_char": 8195, "source": "ner", "metadata": {"in_sentence": "When he recovered he reported for duty at Simla on March 2, 1959 and he was permited to resume his duty on furnishing a certificate."}}, {"text": "January 27, 1959", "label": "DATE", "start_char": 8327, "end_char": 8343, "source": "ner", "metadata": {"in_sentence": "On January 27, 1959, the appellant was served with a chargesheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his wilfol absence from duty after the expiry of the earned\n\nleave sanctioned to him upto October 31, 1958, which was described F as \"misbehaviour\"."}}, {"text": "31st October, 1958", "label": "DATE", "start_char": 9448, "end_char": 9466, "source": "ner", "metadata": {"in_sentence": "and have knowingly defi11d Government orders..\n\n(3) That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is a misbehaviour\"."}}, {"text": "March 11, 1959", "label": "DATE", "start_char": 9532, "end_char": 9546, "source": "ner", "metadata": {"in_sentence": "The appellant submitted his explanation on March 11, 1959."}}, {"text": "August 14, 1959", "label": "DATE", "start_char": 9670, "end_char": 9685, "source": "ner", "metadata": {"in_sentence": "He was served with a second show cause notice on August 14, 1959, enclosing the report of the Enquiry Officer."}}, {"text": "October 6, 1959", "label": "DATE", "start_char": 9797, "end_char": 9812, "source": "ner", "metadata": {"in_sentence": "The appellant submitted his representation to the said notice on October 6, 1959."}}, {"text": "October 21, 1959", "label": "DATE", "start_char": 9818, "end_char": 9834, "source": "ner", "metadata": {"in_sentence": "On October 21, 1959, the Financial Commissioner (Revenue) passed the order of dismissal."}}, {"text": "Subordinate Judge, First Class, Patiala", "label": "COURT", "start_char": 9974, "end_char": 10013, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge, First Class, Patiala, decreed bot.h the suits on January 15, 1963."}}, {"text": "January 15, 1963", "label": "DATE", "start_char": 10042, "end_char": 10058, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge, First Class, Patiala, decreed bot.h the suits on January 15, 1963."}}, {"text": "August 9, 1966", "label": "DATE", "start_char": 10136, "end_char": 10150, "source": "ner", "metadata": {"in_sentence": "The State Government appealed to the High Court and the same was allowed on August 9, 1966 and both the suits were dismissed."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 10651, "end_char": 10662, "source": "regex", "metadata": {"statute": null}}, {"text": "Pafiala", "label": "GPE", "start_char": 10873, "end_char": 10880, "source": "ner", "metadata": {"in_sentence": "It is admitted by the respondent that the appellant initially joined i; ervice in the State of Pafiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31, 1956, of His Highness the Rajpramukh, which is the previous day of the 'appointed day' under the State Reorganisation Act, 1956."}}, {"text": "Pepsu Civil Secretariat", "label": "ORG", "start_char": 10944, "end_char": 10967, "source": "ner", "metadata": {"in_sentence": "It is admitted by the respondent that the appellant initially joined i; ervice in the State of Pafiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31, 1956, of His Highness the Rajpramukh, which is the previous day of the 'appointed day' under the State Reorganisation Act, 1956."}}, {"text": "State Reorganisation Act, 1956", "label": "STATUTE", "start_char": 11095, "end_char": 11125, "source": "regex", "metadata": {}}, {"text": "Article 311", "label": "PROVISION", "start_char": 11868, "end_char": 11879, "source": "regex", "metadata": {"linked_statute_text": "the State Reorganisation Act, 1956", "statute": "the State Reorganisation Act, 1956"}}, {"text": "Constitution", "label": "STATUTE", "start_char": 11887, "end_char": 11899, "source": "regex", "metadata": {}}, {"text": "Article 309", "label": "PROVISION", "start_char": 12312, "end_char": 12323, "source": "regex", "metadata": {"linked_statute_text": "the Constitution\n\nof India", "statute": "the Constitution\n\nof India"}}, {"text": "June 27, 1954", "label": "DATE", "start_char": 12386, "end_char": 12399, "source": "ner", "metadata": {"in_sentence": "As provided under Rule 6 above me1itioned, ti1e Rajpramukh\n\nunder Article 309 of the Constitution by a notification in the Pepsu Gazette of June 27, 1954, made appropriate rules on 14th June, 1954, determining the authorities competent to impose penalties on."}}, {"text": "14th June, 1954", "label": "DATE", "start_char": 12427, "end_char": 12442, "source": "ner", "metadata": {"in_sentence": "As provided under Rule 6 above me1itioned, ti1e Rajpramukh\n\nunder Article 309 of the Constitution by a notification in the Pepsu Gazette of June 27, 1954, made appropriate rules on 14th June, 1954, determining the authorities competent to impose penalties on."}}, {"text": "Pepsu General Clauses Act, 1953", "label": "STATUTE", "start_char": 12978, "end_char": 13009, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 2", "label": "PROVISION", "start_char": 13153, "end_char": 13162, "source": "regex", "metadata": {"linked_statute_text": "Under the Pepsu General Clauses Act, 1953", "statute": "Under the Pepsu General Clauses Act, 1953"}}, {"text": "Rajpramukh", "label": "OTHER_PERSON", "start_char": 13264, "end_char": 13274, "source": "ner", "metadata": {"in_sentence": "As noted earlier, factually, the appellant was confirmed and neces-- sarily appointed by the Rajpramukh.", "canonical_name": "Raj Pram1ikh"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13814, "end_char": 13825, "source": "regex", "metadata": {"linked_statute_text": "Under the Pepsu General Clauses Act, 1953", "statute": "Under the Pepsu General Clauses Act, 1953"}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 13918, "end_char": 13924, "source": "ner", "metadata": {"in_sentence": "E Mr. Sharma, on behalf of the respondent, submits that there is no violation of Article 311 ( 1) of the Constitution."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13993, "end_char": 14004, "source": "regex", "metadata": {"linked_statute_text": "Under the Pepsu General Clauses Act, 1953", "statute": "Under the Pepsu General Clauses Act, 1953"}}, {"text": "State of Punjab", "label": "GPE", "start_char": 14246, "end_char": 14261, "source": "ner", "metadata": {"in_sentence": "He submits that the appointing authority of the appellant before his integration into the State of Punjab does not come into the picture."}}, {"text": "section 116", "label": "PROVISION", "start_char": 14369, "end_char": 14380, "source": "regex", "metadata": {"statute": null}}, {"text": "States F Reorganisation Act, 1956", "label": "STATUTE", "start_char": 14388, "end_char": 14421, "source": "regex", "metadata": {}}, {"text": "section 116", "label": "PROVISION", "start_char": 14466, "end_char": 14477, "source": "regex", "metadata": {"linked_statute_text": "the States F Reorganisation Act, 1956", "statute": "the States F Reorganisation Act, 1956"}}, {"text": "section 116(1)", "label": "PROVISION", "start_char": 15592, "end_char": 15606, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116", "label": "PROVISION", "start_char": 15778, "end_char": 15789, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 116", "label": "PROVISION", "start_char": 16794, "end_char": 16805, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116(1)", "label": "PROVISION", "start_char": 16872, "end_char": 16886, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Punjab", "label": "ORG", "start_char": 17194, "end_char": 17214, "source": "ner", "metadata": {"in_sentence": "To concretise the appellant's case in terms of section 116(1), it is sufficient to state1 that the appellant who, immediately before the appointed day, was holding the post of an Assistant in the former State of Pepsu, shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have been: duly appointed to such post by the Government of Punjab."}}, {"text": "Pepsu", "label": "GPE", "start_char": 17420, "end_char": 17425, "source": "ner", "metadata": {"in_sentence": "We are not concerned in the instant case about the appointment being deemed to be made by \"other appropriate authority\" in the State of Punjab since the appellant had been appointed by the Rajpramukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new State of Punjab is the Governor of Punjab."}}, {"text": "section 116", "label": "PROVISION", "start_char": 17743, "end_char": 17754, "source": "regex", "metadata": {"statute": null}}, {"text": "section 116", "label": "PROVISION", "start_char": 18454, "end_char": 18465, "source": "regex", "metadata": {"statute": null}}, {"text": "section 115", "label": "PROVISION", "start_char": 18659, "end_char": 18670, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Govermrient", "label": "ORG", "start_char": 18727, "end_char": 18746, "source": "ner", "metadata": {"in_sentence": "Under section 116 when he is integrated in the new State of Punjab he carries with him 'that condition of service with regard to his termi~ nation of employment and it cannot be varied to his disadvantage under section 115 (7) of the Act except with the previous approval of the Central Govermrient. ("}}, {"text": "Bholanath", "label": "JUDGE", "start_char": 18810, "end_char": 18819, "source": "ner", "metadata": {"in_sentence": "See Takhatray Shivdatray Mankad v.\n\nState of Gu; arat(') and Bholanath J.\n\nThakar v.\n\nThe State of Saurashtra(')."}}, {"text": "section 115", "label": "PROVISION", "start_char": 19563, "end_char": 19574, "source": "regex", "metadata": {"statute": null}}, {"text": "May 11, 1957", "label": "DATE", "start_char": 19722, "end_char": 19734, "source": "ner", "metadata": {"in_sentence": "Mr. Sharma submits that these Rules received the approval of the Central Government as will appear from the general circular dated May 11, 1957, to all the State Governments."}}, {"text": "section 115(7)", "label": "PROVISION", "start_char": 20093, "end_char": 20107, "source": "regex", "metadata": {"statute": null}}, {"text": "section 115(7)", "label": "PROVISION", "start_char": 20240, "end_char": 20254, "source": "regex", "metadata": {"statute": null}}, {"text": "February 28, 1957", "label": "DATE", "start_char": 20381, "end_char": 20398, "source": "ner", "metadata": {"in_sentence": "aid as 'previous approval' under section 115(7) of the Act when tpe Punjab Financial Commissioner's Office (State Service, Class III) Rules, 1957 were already promulgated on February 28, 1957."}}, {"text": "section 115(7)", "label": "PROVISION", "start_char": 20416, "end_char": 20430, "source": "regex", "metadata": {"statute": null}}, {"text": "December 1, 1976", "label": "DATE", "start_char": 21019, "end_char": 21035, "source": "ner", "metadata": {"in_sentence": "6) pronounced on December 1, 1976."}}, {"text": "section 116(2)", "label": "PROVISION", "start_char": 21141, "end_char": 21155, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 21188, "end_char": 21199, "source": "regex", "metadata": {"statute": null}}, {"text": "[1970] 1 S.C.R. 244", "label": "CASE_CITATION", "start_char": 21299, "end_char": 21318, "source": "regex", "metadata": {}}, {"text": "On the coming into force of the States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 21691, "end_char": 21754, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 116", "label": "PROVISION", "start_char": 21832, "end_char": 21843, "source": "regex", "metadata": {"linked_statute_text": "On the coming into force of the States Reorganisation Act, 1956", "statute": "On the coming into force of the States Reorganisation Act, 1956"}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 21851, "end_char": 21876, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mysore", "label": "GPE", "start_char": 22015, "end_char": 22021, "source": "ner", "metadata": {"in_sentence": "On the coming into force of the States Reorganisation Act, 1956, on November 1, 1956, they were to he deemed by virtue of sub-section (1) of section 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 22181, "end_char": 22190, "source": "ner", "metadata": {"in_sentence": "On the coming into force of the States Reorganisation Act, 1956, on November 1, 1956, they were to he deemed by virtue of sub-section (1) of section 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad."}}, {"text": "Mysore G(wemment Road Transport Department", "label": "ORG", "start_char": 22327, "end_char": 22369, "source": "ner", "metadata": {"in_sentence": "relevant date being the General Manager of the Mysore G(wemment Road Transport Department aq::ording to the appellants' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority' in terms of sub-section (2) of section 116 of the States Reorganisation Act, 1956."}}, {"text": "section 116", "label": "PROVISION", "start_char": 22603, "end_char": 22614, "source": "regex", "metadata": {"linked_statute_text": "On the coming into force of the States Reorganisation Act, 1956", "statute": "On the coming into force of the States Reorganisation Act, 1956"}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 22622, "end_char": 22653, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mysore Government Road Transport Department", "label": "ORG", "start_char": 22728, "end_char": 22771, "source": "ner", "metadata": {"in_sentence": "The fact that there was :no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of 110 consequence."}}, {"text": "section 115", "label": "PROVISION", "start_char": 23112, "end_char": 23123, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 23136, "end_char": 23167, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Subordinate Judge, First Class, ., Patiala", "label": "COURT", "start_char": 23284, "end_char": 23326, "source": "ner", "metadata": {"in_sentence": "Jn the result both the judgments 0£ the High Court are set aside\n\n~ and the judgments and decrees of the Subordinate Judge, First Class, .,"}}, {"text": "Hingorani", "label": "OTHER_PERSON", "start_char": 23403, "end_char": 23412, "source": "ner", "metadata": {"in_sentence": "We are thankful to Mr. Hingorani for his assistance as amicus curiae in these appeals."}}]}
{"document_id": "1977_2_964_972_EN", "year": 1977, "text": "_._\n\nOFFICllL LIQUIDATOR\n\nDHARTI DHAN (P) LTD.\n\nFebruary 10, 1977\n\n(M. H. BEG, C.J. AND P. S. KAILASAM, J.]\n\nI CO!.npan!es Act, 1956-:-Sections 442, 446-Power to stay proceedings whether d1scret10nary-Meamng of the word \"may\" occurring in s. 442. '\n\nConstitution of India, 1950-Article 136-Appeal bv special leave-Interference by Supreme Court-:-Scope of. ·\n\n. The Company .Juqge in tl, ie .~(>mbay High Court directed on 3-1-1970 adverllsement of the ':\"mdmg up petitmn filed by the Registrar of Companies in Maharashtra agarnst the respond t company, one of the d'ebtors of the Gotcha conwany to th~ .extent of Rs. 11 69,043/-.\n\nThe respondent company appealed agamst the dec1s10n of the Company Judge and obtained an order dated 3rd Febru1!ry, 1970, from a Division Bench staying the operation of the order of advertisement of the winding up petition. As the respondent company defaulted in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and 17th January 1967, the Official Liquidator of the Golcha company made a claim under s. 446(2) of the Companies Act for the. recovery of a sum of Rs. 5 lac before the Company Judge of the High Court of Rajasthan.\n\nThe respondent company after obtaining an ordr of stay of the proceedings against it in the Bombay High Court made. another application under s. 442(b) of the Companies Act in the Rajasthan High Court for staying of proceeding against it under s 446\n\n(2) made by the appellant on the groilnd that a compulsory wiriaing up petition was perlding against it in the Bombay High Court. The Company Judge rejected the application under s. 442(b) of the Act on 9-5-1974.\n\nBut, the Division Bench of the Rajasthan fligh Ct; mrt allowed the appeal against the stay order and. ordered a conditional stay of iproceedings u/s. 446 (2) of the Act against the respondent company.\n\nOn appeal by special leave, the Court,\n\nHELD : (I) The clear object of s. 442 is that claims in suits and proceedings pending elsewhere which have a bearing on the company's liabilities may be stayed only until the winding up order is made, because, after the winding up order has been passed, s. 446 begins to operate so as to automatically transfer with certain exceptions, proceediqgs against the company being wound up to the court exercising the jurisdiction Ito wind it up. [968 B-C]\n\n(2) Sections 442 and 446 of the Act have to be read together.\n\nIt is only where the object of the two sections, when read .together, is served by a stay order that the stay order could be justified. That object 1s to exped1t10usly decide and dispose of pending claims in the winding up proceedings.\n\nA stay is not. to. be granted if the object of applying for it al'pea_rs to be merely to delay adjudication on a claim, and, thereby, to defeat 1usllce.\n\nIn other words, a stay orer under s. 442 cannot be made me1hanically or, as a matter of course, on sho-:vm.g fulfilment of some fixed and pr scribed c.onditions. It-can <;>nly be made Judiciously upon an examination of the totality of the facts which vary from case to case It follows that the order to be passed must be discretionary and the powe'r to pass it must, therefore, be directory and not mandatory. [969 B-D]\n\n(3) The word \"may\" used before stay u/s. 442 of the Companies ct .really means \"may\" and not \"must\" or \"shall\" in such a context. In fact, 1t _1s not quite accurate to say that the word \"may\" by itself acquire~ te meanmg of \"must\" or \"shall\" sometimes.\n\nThis word, however, always stgmfies. a co.nfer,- ment of that power. That power may, having rgard to he context m which !t occurs and the requirements contemplated for its exercise have annexed to 1t\n\n' .>\n\nan obligation which compels its exercise in a certain way on facts and circum A stances from which the obligation to exercise it in that way arises.\n\nIn other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context both legal and factual may impart to the power that obligatoriness. [969 DF]\n\n( 4) Thus, the question to be determined in such cases always is whether the power conferred by -the use of the word \"may\" has annexed to it an obligation, that, on the fulfilment of certain legally prescribed conditions to be shown by \"' evidence, a particular kind of order must be made. In such a case, it is always D' the purpose of the power which has to. be examined in order to determine the scope of the discretion conferred t1pon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a statute, then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner. [969 F-970 G-H] - • '- Frederic Guilder Julius v. Tl1e Right Rev. The Lord Bishop of Oxford : The\n\nRev. Thomas Thelusson Carder 5 A.C. 214, quoted with approval.\n\nBhaiya Punja/al Bhagwandin v. Dave Blwgwatprasad Prabhuprasad [1963] 3 SCR 312 : State of Uttar Pradesh v. Jogendra Singh [1964] 2 SCR 197; Sardar Govindrao & Ors. v. State of M. P. [1965] 1 SCR 678; Shri A. C. Aggarwal, Sub- Divisional Magistrate, Delhi & Anr. v. Smt. Ram Kali etc. [1968] 1 SCR 205; Bashira ·,, State of U.P. [1969] 1 SCR 32 and Prakash Chand Agarwal & Ors. v.\n\nM/s. Hindustan Steel Ltd. [1972] 1 SCR 405, applied. ( 5) In s. 442 of the Companies Act the power to stay a proceeding is not'\n\nannexed with the obligation to nec; essarily stay on proof of certain conditions Dl although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.\n\nThe question whether it should, on the facts of a particular case, be exercised or not will have to be examined and then decided by the court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by ss. 442 and 446 of the Act can only be carried out by a stay order, it could perhaps be urged that an obligation to do so becomes annexed to it by proof of those facts. .That would be the position in case the word \"may\" itself must be equated with \"shall\", but because judicial power has necessarily to be\n\nE'. exercised justly, properly and reasonably to enforce. the principle that rights created must be enforced. [971 B-Dl\n\n(6) In such ;:ases, the only right which could be said to have been created is the right to get speedier adjudication from the court where the winding up proceeding is taking_place. That is the object of the provisions. / On facts_ disclosed, if it' be found tli.at the application has been made with the objeQ: of delaying decisions on claims made, the application should be rejected outright. [971 D-El p\n\n(7) In the instant case the object of the respondent company appears to be to obtain an indefinite stay of proceedings against it in both High Courts.\n\nThis being a correct inference, the stay application under s. 442(b) of the Companies Act could not be a bona fide one, but an abuse of tlie processes of the court.\n\n[966 F-G]\n\n(8) It is true that the Supreme Court does not, as a rule interfere with interlocutory orders. The powers of interference under Art. 136 of the Constitution by the Supreme Court are not confined to those in respect of final orders, although finality of an order is a test which the Supreme Court generaJly applies in considering whether .it shonld interfere under Art. 136 of the Constitution with it. [972 B-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 126 of 1976.\n\n(Appeal by Special leave from the Judgment and Order dated the 11th October, 1974 of the Rajasthan High Court in D.B. Special Appeal No. 111 of 1974) L. N. Sinha, Sol. Gen. and Suresh Sethi, for the appellant.\n\nC. K. Garg, S. S. Khanduja and C. L. Sahu, for respondent.\n\n966 SUPREME COURT RllPORTS\n\nThe Judgment of the Court was delivered by\n\n[1977] 2 s.c.R.\n\nBEG, C.J.-The Official Liquidator attached to the High Court of Rajasthan, in-charge of the\n\n1 liquidation of Golcha Properties (Pvt.) Ltd., (hereinafter referred to as 'Golcha Company'), has come up in appeal to this Court by special leave against a judgment and order of a Division Bench of that High Court, passed on a Special Appeal from the judgment and order: of a single Judge of that Court.\n\nOn petitions presented on 4th\n\n1July 1966 and 30th July 1966 by the creditors of Golcha Company, the High Court had made a compulsory winding up order on 10th May 1968; and, on that very date, the appellant was appointed liqtlidator of the Golcha company.\n\nThe Dharti Dhan (Pvt.) Ltd., (hereinafter referred to as the 'Dhan Company'), with its registered ofjice at Bombay, was said to be one of the debtors of the Golcha Company to the extent of Rs. 11,69 ,043 /- together with interest and commission which was said to be still due on 1st August 1969.\n\nAgreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual instalments of Rs. 2,50,0oq;- according to the appellant.\n\nAs the respondent, Dhan Company, is said to have defaulted in the payment of two of its instalments, a claim under section 446(2) of the Companies Act (hereinafter referred to as 'the Act') for the recovery of a sum of Rs. 5,00,000/- was made before the Company Judge of the High Court of Rajasthan b)! the appel!lmt.\n\nOn 20th September 1969, the Registrar of Companies in Maharashtra had to file a w1nding up petition against the respondent T)han Company in the Bombay High Court.\n\nThe Company Judge in the Bombay High Court on 3rd January, 1970, directed advertisement of the winding up petition. IThe respondent Dhan Company appealed against the decision of the Company Judge and obtained an order, dated 3rd February, 1970, from a Division Bench staying the operation of the order for advertisement of the winding up petition.\n\nAn appeal against that order is. said be still pending so that a stay of those proceedings operates. 1\n\nAfter obtaining an orde~ of stay of the proceedings against it in the Bombay High Court, tne Dhan Company made an application under s. 442(b) of the Act in the Rajasthan High Court for stay of proceedings against it u/s. 446(2) on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.\n\nThe object of the respondent Dhan Company appeared to be to obtain an indefinite stay of proceedings againsts it in both. High Courts.\n\nH this is a correct inference, as it appears to us to be, the stay application under s. 442(b) of tpe Companies Act would not be a _bona fide one.\n\nIt looks more like an abuse of the process of the Court.\n\nIt is, therefore, not surprising that the learned Company Judge of the Rajasthan High Court rejected the Dhan Company's application: under s. 442 (b) of the Act on 9th May 1974. It is, however, somewhat surprising that a Division Bench of that High Court should haw allowed an appeal from the judgment of the Company Judge and ordered stay of proceedings under s. 446(2) of the Act against the respondent Dhan Company, even though this was subjected to the\n\n--~-\n\ncondition that \"the appellant Company produces the entire docu- A; mentary evidence inclusive of account-books, vouchers, files and other documents and papers in its possession or power relatin~ to he .claim in question, as it may desire to produce or the Official _L1qut.datr\n\ndesires to summon or as the learned Company Judge may direct m his discretion and also produces a list of witnesses that the appellant company may desire, to examine in its defence in respect of the claim in question along with an affidavit of what each witness is likely to de- B: pose\".\n\nThus, the Division Bench had, while making the stay order, attempted to safeguard the interests of the Golcha Company by making an order which, in the opinion of the Division Bench, would prevent valuable evidence from being lost due to either the death or the fading memory of a witness or other causes.\n\nLearned Solicitor-General, appearing for the appellant, Official C Liquidator of the Golcha Company, gave up the objection, taken in the special leave petition, to the maintainability of an appeal to a Division Bench from the order of the Companyi Judge in view of the provision of section 483 of the Act, which lays down :\n\n\"483. Appeals from any order made or decision given in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which and subject to the same conditions under whici1, appeals lie from any order or decision of the (::ourt in cases within its ordinary jurisdiction\".\n\nThe Solicitor-General, however, submits that, on merits, the order of\n\nthe learned Company Judge, dismissing the application of the Dhan E Company for stay of proceedings under s. 442(b) of the' Act, deserves to be restored as no grounds for interference with the proper exercise of his discretion by the learned Company Judge existed at all.\n\nWe highly appreciate the brevity of this submission, after the Solicitor-General had, very rightly and properly, conceded that he could not urge that the . Division Bench had not jurisdiction to hear the appeal before it.\n\nNo effective answer could be given to the F Solicitor-General's submission by the learned counsel for the respondent.\n\nWe will, however, deal with the strenuous arguments advanced on behalf of the respondent even if it be to disclose how untenable they are.\n\nFirstly, learned counsel for the respondent contends that the power to stay proceedings, contained in s. 442 (b) of the Act, is G bound to be exercised when certain conditions, said to be found in the case before us, are fulfilled.\n\nThis submission rests on a misapprehension of the object of s. 442 which lays down :\n\n\"442. At any time after the presentation of a, winding up petition and before a winding up order has been made, the col!lpany, or: any creditor or contributory, may-\n\n (a) where any suit or proceeding against the company is pending in the Supreme Court or in any High Court, apply\n\nSUPREME COURT REPORTS\n\n(1977) 2 S.C.R.\n\nA to _!he Court in which the suit or proceeding is pending for a stay of proceedings therein; and\n\n(b) where any suit or proceeding is pending against the company in any other court, apply to the Court having jurisdiction to wind up the company, to restrain further proceedings in the suit .or proceeding;\n\nand the Court to which application is so made may stay or restrain the proceedings accordingly on such terms as it thinks fit\".\n\nThe clear object of the section is that claims in suits in and proceeding pending elsewhere which have a bearing on the company's •C liabilities, may be stayed only until the winding up order is made, because, after the winding up order has been passed, section 446 begins to operate so as to automatically transfer with certain exceptions proceedings against the company being wound up to the Court exercising the jurisdiction to , wind it up.\n\nSection 446 reads :\n\n\"446.(1) When a winding up order has been made or _D the Official Liquidator has been appointed as provisional lici, uidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with against the company, except by leave of the Court and subject to such terms as the Court may impose.\n\n(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-\n\n(a) any suit or proceeding by or against the company;\n\n(b) any claim made by or against the company (including claims by or against any of its branches in Jndi'a);\n\n(c) any application made under section 391 by or in respect of the company;\n\n(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company;\n\nwhether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.\n\n()FFICIAL LIQUIDATOR V. DHARTI DHAN (Beg, C.J.) 96 9\n\n(3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is P._roceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court.\n\n(4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court\".\n\nSections 442 and 446 of the Act have to be read together. It :is only where the object of the two sections, when read together, is served by a stay order that the stay order could be justified.\n\nThat object is to expeditiously decide and dispose of pending claims in the course of winding up proceedings.\n\nA stay is not to be granted if the object of applying for it appears to be, as it does in the cae before us, merely to delay adjudication on a claim, and, thereby to defeat justice.\n\nJn other words, a stay order, under section 442, -cannot be made mechanically, or, as a matter of course, on showing fulfilment of some fixed and prescribed conditions. It can only be made judid.:msly upon an examination of the totality of the facts which very from case to case.\n\nIt follows that the order to be passed. must be discretionary and the power to pass it must, therefore, be directory and not mandatory.\n\nJn other words, the word \"may\", used before \"stay\" in section 442 of the Act really means \"may\" and not \"must\" or \"shall\"· in such a context.\n\nIn fact, it is not quite accurate to say that the word \"may\", by itself, acquires the meaning of \"must\" or \"shall\" sometimes.\n\nThis word, however, always signifies a conferment of power.\n\nThat power may, having regard to the context in which it occurs, and the requirements contemplated for its exercise, have annexed to it an obligation which compels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises.\n\nIn other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way.\n\nThe. context, both legal and factual, may impart to the power that obligatoriness.\n\nThus, the question to be determined in such cases always is, whether the power conferred by the use of the word \"may\" has, annexed to it, an obligation that, on the fulfilment of cretai'Il legally prescribed conditions, to be shown by evidence, a particular kind of order must be made.\n\nIf the statute leaves no room for discretion the power has to be exercised in the manner indicated by the~ other legal provisions which provide the legal context.\n\nEven . then the facts must establish that the legal conditions are fulfilled.\n\nA power is exercised even when the Court rejects an application to exercise it. in the particular way in which the applicant desires it to be exercised.\n\nWhere the power is wide enough to cover both an acceptance and a refusal of an applicati'on for its exercise, depending upon facts, it is directory or discretionary.\n\nIt is not the conferment of a power whic~ the word \"may\" indicates that annexe~ any ?bligatiOJ] to its exercise but the legal and factual context of 1t.\n\nThis, as we\n\n97 0 SUPREME COURT REPO]l.TS [1977] 2 s.c.R.\n\nunderstand it, was the principal laid down in the case cited before us ~\n\nFrederic Guilder Julius v. 'fhe Right Rev. The Lord Bishop oj Oxford; The Rev. Thomas Thellusson Carter.(')\n\nDr. . Julius, in the case mentioned above, had made an application to the Bishop of Oxford against the Rector of a parish, asking the Bishop to issue a commission under the Church Discipline Act to enquire against certain unauthorised deviations from the ritual in a Church by the Rector.\n\nThe relevant statute merely conferred a power by laying down that \"it shall be lawful\" to issue a commission.\n\nThe Courts of Queens Bench and of Appeal in England had differed on the question whether a mandamus from the Court could go to the Bishop commanding him to issue a commission for !he purpose of maki•ng the enquiry.\n\nThe House of Lords held that the power to issue the commission was not ccmpled with a duty to exercise it in every case although there may be cases where duties towards members of the public to exercise a power may also be coupled with a duty to. exercise it in a particular way on fulfilment of certain specified conditions. The statute consi'clered there had not specified those conditions. Hence, it was a bare power to issue or not to issue the commission.\n\nLord Blackburn said: (at p. 241) :\n\n\"I do not think the words 'it shall be lawful' are in themselves ambiguous at all.\n\nThey are apt words to express that a power is given ; and as, prima f acie, the donee of a power may either exerdse it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf.\n\nWhere there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast on the donee of a power to exercise it, that mandamus lies to enforce it : that depends on the nature of the duty and the position of the donee\".\n\nThe principl~ laid down above has been followed consistently by this Court whenever it has been contended that the word \"may\" carries with it the obligation to exercise a power in a particular manner or direction.\n\nIn such a case, it is always the purpose of the power which has to be examined in order to determine the scope of the discretion conferred upon the donee of the power. If the conditions in which the power is to be exercised in particular cases are also specified by a statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty to exercise it in that manner.\n\nThis is the prjnciple we deduce from the cases of this Court cited before us : Bhaiya Punjalal Bhagwandin v.\n\n(1) 5 A.C. 214.\n\n' ' ·-., ._\n\n~ .>\n\nOFFICIAL LIQUIDATOR v. DHARTI OHAN (Beg, C.J.) 97 f\n\nDave Bhagwatprasad Prabhuprasad,(') State of Uttar Pradesh v.\n\nA Jogendra Singh,(2) Sardar Govindrao & Ors. v. State of M.P.,( 8 ) Shri A. C. Aggarwal, Sub-Divisional Magistrate, Delhi & Anr. v.\n\nSmt. Ram Kali etc.,(\") Bashira v. State of U.P.,(•) and Prakash\n\nChand Agarwal & Ors. v. M/s. Hindustan Steel Ltd.( 6)\n\nIn the statutory provision under consideration now before us the power to stay a proceeding is not annexed with the obligation to necessarily stay on proof of certain conditions although there are conditions prescribed for the making of the application for stay and the period during which the power to stay can be exercised.\n\nThe question whether it should, on the facts of a praticular case, be exercised or not will have to be examined and then decided by the Court to which the application is made. If the applicant can make out, on facts, that the objects of the power conferred by ss. 442 and 446 of the Act, can only be carried out by a stay order, it could perhaps be urged that an obligation to do so has become . annexed to it by proof of those facts.\n\nThat would be the position not because the word \"may\" itself must be equated with \"shall\" but because judicial power has necessarily to be exercised justly, properly, and reasonably to enforce the principle that rights created must b!l enforced.\n\nIn the case before us, the only right which could be said to have been created is the right to get speedier adjudication from the Court where the winding up proceeding is taking place.\n\nThat is the object of the provisions. On facts disclosed in this case, we find that the application seems to have been made with the object of delaying decisions on claims made. In such a case, there could be no doubt that the application should be rejected outright as the learned Company Judge did.\n\nSecondly, an attempt was made to urge that the power to grant or not to grant or to grant a stay upon certain conditions, assuming the power to be discretionary, is to be exercised by the Courts in which that discretion is vested, this Court should not interfere with the exercise of discretion by the Division Bench to which an appeal from the order of the Company Judge lay.\n\nThe effective answer to this contention is that, where the learned Company Judge had himself exercised his discretion on a correct appreciation of the object of the provisions of ss. 442 and 446 of the Act, even though he didnot state the obJect or refer to all the facts, the Appellate Court should not have interfered by granting a conditional stay without giving sufficient reasons to over-ride the discretion of the learned Company Judge to refuse stay.\n\nWe think that a question of general\n\n(1) [.1963] 3 S.C.R. 312.\n\n(2) [1964] 2 S.C.R. 197.\n\n\n14-206SCI/77\n\n972 SUPREME COUJlT REPORTS [1977] 2 §, C.'t.\n\nprinciple arises in this case which has to be clarifiled so that an interference by this Court under Article 136 of the Constitution, in order to vindicate a correct principle and to meet the. ends of justice, is called for.\n\nThirdly, learned counsel for the respondent submitted that the order under appeal before us i's not final so that we need not interfere under Art. 136 of the Constitution for this reason. It is true that, this Court does not, as a rule, interfere with interlocutory orders.\n\nIt is not necessary for us to embark on this occasion on a discussion of the meaning of a \"final\" order.\n\nThat is certainly a question fraught with difficulti+es.\n\nIt is sufficient for us to observe that our powers of interference under Art. 136 of the Constitution are not confined to those in respect of final orders, although finality of an order is a test which this Court generally applies in considering whether it should interfere under Art. 136 of the Constitution with\n\nt.\n\nWe think that we have indicated sufficiently why, despite the fact that an order staying proceedings under s. 442(b) of the Act may not, strictly speaking, be final, yet, a question of general principle of wide application, as to the circumstances in which (In app:; irently discretionary power may become annexed with a duty to exercise it in a particular way, having arisen here, we consider this to be a fit case for interference under Article' 136 of the Constitution. .\n\nConsequently, .we allow this appeal and set aside the judgment and order of the Division Bench and restore that of the learned Company Judge.\n\nThe parties will bear their own costs.\n\nS.R.\n\nAppeal allowed.\n\n• '", "total_entities": 99, "entities": [{"text": "DHARTI DHAN (P) LTD", "label": "RESPONDENT", "start_char": 26, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "DHARTI DHAN (P) LTD", "offset_not_found": false}}, {"text": "P. S. KAILASAM, J.", "label": "JUDGE", "start_char": 88, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Sections 442, 446", "label": "PROVISION", "start_char": 135, "end_char": 152, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 239, "end_char": 245, "source": "regex", "metadata": {"statute": null}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 250, "end_char": 271, "source": "regex", "metadata": {}}, {"text": "Article 136", "label": "PROVISION", "start_char": 278, "end_char": 289, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "3rd Febru1!ry, 1970", "label": "DATE", "start_char": 732, "end_char": 751, "source": "ner", "metadata": {"in_sentence": "The respondent company appealed agamst the dec1s10n of the Company Judge and obtained an order dated 3rd Febru1!ry, 1970, from a Division Bench staying the operation of the order of advertisement of the winding up petition."}}, {"text": "Golcha company", "label": "ORG", "start_char": 958, "end_char": 972, "source": "ner", "metadata": {"in_sentence": "As the respondent company defaulted in the payment of two of its instalments, as agreed to between the Golcha company and the respondent company by agreements dated 25th June 1966 and 17th January 1967, the Official Liquidator of the Golcha company made a claim under s. 446(2) of the Companies Act for the."}}, {"text": "the Official Liquidator", "label": "PETITIONER", "start_char": 1058, "end_char": 1081, "source": "metadata", "metadata": {"canonical_name": "OFFICIAL LIQUIDATOR", "offset_not_found": false}}, {"text": "s. 446(2)", "label": "PROVISION", "start_char": 1123, "end_char": 1132, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 1140, "end_char": 1153, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 1226, "end_char": 1249, "source": "ner", "metadata": {"in_sentence": "5 lac before the Company Judge of the High Court of Rajasthan."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 1344, "end_char": 1361, "source": "ner", "metadata": {"in_sentence": "The respondent company after obtaining an ordr of stay of the proceedings against it in the Bombay High Court made."}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 1394, "end_char": 1403, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 1411, "end_char": 1424, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 1432, "end_char": 1452, "source": "ner", "metadata": {"in_sentence": "another application under s. 442(b) of the Companies Act in the Rajasthan High Court for staying of proceeding against it under s 446\n\n(2) made by the appellant on the groilnd that a compulsory wiriaing up petition was perlding against it in the Bombay High Court."}}, {"text": "s 446", "label": "PROVISION", "start_char": 1496, "end_char": 1501, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 1682, "end_char": 1691, "source": "regex", "metadata": {"statute": null}}, {"text": "9-5-1974", "label": "DATE", "start_char": 1706, "end_char": 1714, "source": "ner", "metadata": {"in_sentence": "The Company Judge rejected the application under s. 442(b) of the Act on 9-5-1974."}}, {"text": "s. 446", "label": "PROVISION", "start_char": 1864, "end_char": 1870, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 1990, "end_char": 1996, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 446", "label": "PROVISION", "start_char": 2213, "end_char": 2219, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 442 and 446", "label": "PROVISION", "start_char": 2414, "end_char": 2434, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 2898, "end_char": 2904, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 3323, "end_char": 3329, "source": "regex", "metadata": {"statute": null}}, {"text": "[1963] 3 SCR 312", "label": "CASE_CITATION", "start_char": 5028, "end_char": 5044, "source": "regex", "metadata": {}}, {"text": "[1964] 2 SCR 197", "label": "CASE_CITATION", "start_char": 5088, "end_char": 5104, "source": "regex", "metadata": {}}, {"text": "[1965] 1 SCR 678", "label": "CASE_CITATION", "start_char": 5148, "end_char": 5164, "source": "regex", "metadata": {}}, {"text": "A. C. Aggarwal", "label": "JUDGE", "start_char": 5171, "end_char": 5185, "source": "ner", "metadata": {"in_sentence": "v. State of M. P. [1965] 1 SCR 678; Shri A. C. Aggarwal, Sub- Divisional Magistrate, Delhi & Anr."}}, {"text": "[1968] 1 SCR 205", "label": "CASE_CITATION", "start_char": 5250, "end_char": 5266, "source": "regex", "metadata": {}}, {"text": "[1969] 1 SCR 32", "label": "CASE_CITATION", "start_char": 5294, "end_char": 5309, "source": "regex", "metadata": {}}, {"text": "[1972] 1 SCR 405", "label": "CASE_CITATION", "start_char": 5373, "end_char": 5389, "source": "regex", "metadata": {}}, {"text": "s. 442", "label": "PROVISION", "start_char": 5408, "end_char": 5414, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5422, "end_char": 5435, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 442 and 446", "label": "PROVISION", "start_char": 5969, "end_char": 5984, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 7016, "end_char": 7025, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 7033, "end_char": 7046, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Supreme Court", "label": "COURT", "start_char": 7158, "end_char": 7171, "source": "ner", "metadata": {"in_sentence": "[966 F-G]\n\n(8) It is true that the Supreme Court does not, as a rule interfere with interlocutory orders."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7262, "end_char": 7270, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7498, "end_char": 7506, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 7547, "end_char": 7575, "source": "ner", "metadata": {"in_sentence": "972 B-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Suresh Sethi", "label": "OTHER_PERSON", "start_char": 7786, "end_char": 7798, "source": "ner", "metadata": {"in_sentence": "Gen. and Suresh Sethi, for the appellant."}}, {"text": "C. K. Garg", "label": "LAWYER", "start_char": 7820, "end_char": 7830, "source": "ner", "metadata": {"in_sentence": "C. K. Garg, S. S. Khanduja and C. L. Sahu, for respondent."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 7832, "end_char": 7846, "source": "ner", "metadata": {"in_sentence": "C. K. Garg, S. S. Khanduja and C. L. Sahu, for respondent."}}, {"text": "C. L. Sahu", "label": "LAWYER", "start_char": 7851, "end_char": 7861, "source": "ner", "metadata": {"in_sentence": "C. K. Garg, S. S. Khanduja and C. L. Sahu, for respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 7969, "end_char": 7972, "source": "ner", "metadata": {"in_sentence": "R.\n\nBEG, C.J.-The Official Liquidator attached to the High Court of Rajasthan, in-charge of the\n\n1 liquidation of Golcha Properties (Pvt.)"}}, {"text": "Golcha Properties (Pvt.) Ltd.", "label": "ORG", "start_char": 8079, "end_char": 8108, "source": "ner", "metadata": {"in_sentence": "R.\n\nBEG, C.J.-The Official Liquidator attached to the High Court of Rajasthan, in-charge of the\n\n1 liquidation of Golcha Properties (Pvt.)"}}, {"text": "4th\n\n1July 1966", "label": "DATE", "start_char": 8395, "end_char": 8410, "source": "ner", "metadata": {"in_sentence": "On petitions presented on 4th\n\n1July 1966 and 30th July 1966 by the creditors of Golcha Company, the High Court had made a compulsory winding up order on 10th May 1968; and, on that very date, the appellant was appointed liqtlidator of the Golcha company."}}, {"text": "Golcha Company", "label": "ORG", "start_char": 8450, "end_char": 8464, "source": "ner", "metadata": {"in_sentence": "On petitions presented on 4th\n\n1July 1966 and 30th July 1966 by the creditors of Golcha Company, the High Court had made a compulsory winding up order on 10th May 1968; and, on that very date, the appellant was appointed liqtlidator of the Golcha company."}}, {"text": "Dharti Dhan (Pvt.) Ltd.", "label": "ORG", "start_char": 8630, "end_char": 8653, "source": "ner", "metadata": {"in_sentence": "The Dharti Dhan (Pvt.)"}}, {"text": "Bombay", "label": "GPE", "start_char": 8734, "end_char": 8740, "source": "ner", "metadata": {"in_sentence": "Ltd., (hereinafter referred to as the 'Dhan Company'), with its registered ofjice at Bombay, was said to be one of the debtors of the Golcha Company to the extent of Rs."}}, {"text": "1st August 1969", "label": "DATE", "start_char": 8905, "end_char": 8920, "source": "ner", "metadata": {"in_sentence": "11,69 ,043 /- together with interest and commission which was said to be still due on 1st August 1969."}}, {"text": "25.6.66", "label": "DATE", "start_char": 8940, "end_char": 8947, "source": "ner", "metadata": {"in_sentence": "Agreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual instalments of Rs."}}, {"text": "17.1.67", "label": "DATE", "start_char": 8952, "end_char": 8959, "source": "ner", "metadata": {"in_sentence": "Agreements dated 25.6.66 and 17.1.67 between the two companies regulated the method of repayment by annual instalments of Rs."}}, {"text": "Dhan Company", "label": "ORG", "start_char": 9108, "end_char": 9120, "source": "ner", "metadata": {"in_sentence": "As the respondent, Dhan Company, is said to have defaulted in the payment of two of its instalments, a claim under section 446(2) of the Companies Act (hereinafter referred to as 'the Act') for the recovery of a sum of Rs."}}, {"text": "section 446(2)", "label": "PROVISION", "start_char": 9204, "end_char": 9218, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 9226, "end_char": 9239, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "20th September 1969", "label": "DATE", "start_char": 9411, "end_char": 9430, "source": "ner", "metadata": {"in_sentence": "On 20th September 1969, the Registrar of Companies in Maharashtra had to file a w1nding up petition against the respondent T)han Company in the Bombay High Court."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 9462, "end_char": 9473, "source": "ner", "metadata": {"in_sentence": "On 20th September 1969, the Registrar of Companies in Maharashtra had to file a w1nding up petition against the respondent T)han Company in the Bombay High Court."}}, {"text": "T)han Company", "label": "RESPONDENT", "start_char": 9531, "end_char": 9544, "source": "ner", "metadata": {"in_sentence": "On 20th September 1969, the Registrar of Companies in Maharashtra had to file a w1nding up petition against the respondent T)han Company in the Bombay High Court.", "canonical_name": "T)han Company"}}, {"text": "3rd January, 1970", "label": "DATE", "start_char": 9618, "end_char": 9635, "source": "ner", "metadata": {"in_sentence": "The Company Judge in the Bombay High Court on 3rd January, 1970, directed advertisement of the winding up petition."}}, {"text": "Dhan Company", "label": "PETITIONER", "start_char": 10118, "end_char": 10130, "source": "ner", "metadata": {"in_sentence": "1\n\nAfter obtaining an orde~ of stay of the proceedings against it in the Bombay High Court, tne Dhan Company made an application under s. 442(b) of the Act in the Rajasthan High Court for stay of proceedings against it u/s. 446(2) on the ground that a compulsory winding up petition was pending against it in the Bombay High Court.", "canonical_name": "T)han Company"}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 10157, "end_char": 10166, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 446(2)", "label": "PROVISION", "start_char": 10243, "end_char": 10252, "source": "regex", "metadata": {"statute": null}}, {"text": "Dhan Company", "label": "RESPONDENT", "start_char": 10384, "end_char": 10396, "source": "ner", "metadata": {"in_sentence": "The object of the respondent Dhan Company appeared to be to obtain an indefinite stay of proceedings againsts it in both.", "canonical_name": "T)han Company"}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 10576, "end_char": 10585, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 10593, "end_char": 10606, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 442", "label": "PROVISION", "start_char": 10836, "end_char": 10842, "source": "regex", "metadata": {"statute": null}}, {"text": "9th May 1974", "label": "DATE", "start_char": 10861, "end_char": 10873, "source": "ner", "metadata": {"in_sentence": "It is, therefore, not surprising that the learned Company Judge of the Rajasthan High Court rejected the Dhan Company's application: under s. 442 (b) of the Act on 9th May 1974."}}, {"text": "s. 446(2)", "label": "PROVISION", "start_char": 11058, "end_char": 11067, "source": "regex", "metadata": {"statute": null}}, {"text": "section 483", "label": "PROVISION", "start_char": 12317, "end_char": 12328, "source": "regex", "metadata": {"statute": null}}, {"text": "Dhan E Company", "label": "ORG", "start_char": 12816, "end_char": 12830, "source": "ner", "metadata": {"in_sentence": "The Solicitor-General, however, submits that, on merits, the order of\n\nthe learned Company Judge, dismissing the application of the Dhan E Company for stay of proceedings under s. 442(b) of the' Act, deserves to be restored as no grounds for interference with the proper exercise of his discretion by the learned Company Judge existed at all."}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 12861, "end_char": 12870, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 13612, "end_char": 13618, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 442", "label": "PROVISION", "start_char": 13803, "end_char": 13809, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPORTS\n\n(1977) 2 S.C.R.", "label": "COURT", "start_char": 14111, "end_char": 14149, "source": "ner", "metadata": {"in_sentence": "At any time after the presentation of a, winding up petition and before a winding up order has been made, the col!lpany, or: any creditor or contributory, may-\n\n (a) where any suit or proceeding against the company is pending in the Supreme Court or in any High Court, apply\n\nSUPREME COURT REPORTS\n\n(1977) 2 S.C.R.\n\nA to _!"}}, {"text": "section 446", "label": "PROVISION", "start_char": 14841, "end_char": 14852, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 446", "label": "PROVISION", "start_char": 15033, "end_char": 15044, "source": "regex", "metadata": {"statute": null}}, {"text": "section 391", "label": "PROVISION", "start_char": 15789, "end_char": 15800, "source": "regex", "metadata": {"statute": null}}, {"text": "()FFICIAL LIQUIDATOR V. DHARTI DHAN", "label": "JUDGE", "start_char": 16298, "end_char": 16333, "source": "ner", "metadata": {"in_sentence": "()FFICIAL LIQUIDATOR V. DHARTI DHAN (Beg, C.J.) 96 9\n\n(3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is P._roceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court."}}, {"text": "Sections 442 and 446", "label": "PROVISION", "start_char": 16784, "end_char": 16804, "source": "regex", "metadata": {"statute": null}}, {"text": "section 442", "label": "PROVISION", "start_char": 17309, "end_char": 17320, "source": "regex", "metadata": {"statute": null}}, {"text": "section 442", "label": "PROVISION", "start_char": 17745, "end_char": 17756, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPO]l.TS [1977] 2 s.c.", "label": "COURT", "start_char": 19534, "end_char": 19571, "source": "ner", "metadata": {"in_sentence": "bligatiOJ] to its exercise but the legal and factual context of 1t.\n\nThis, as we\n\n97 0 SUPREME COURT REPO]l."}}, {"text": "Thomas Thellusson Carter", "label": "OTHER_PERSON", "start_char": 19728, "end_char": 19752, "source": "ner", "metadata": {"in_sentence": "R.\n\nunderstand it, was the principal laid down in the case cited before us ~\n\nFrederic Guilder Julius v. 'fhe Right Rev. The Lord Bishop oj Oxford; The Rev. Thomas Thellusson Carter.(')"}}, {"text": "Julius", "label": "OTHER_PERSON", "start_char": 19764, "end_char": 19770, "source": "ner", "metadata": {"in_sentence": "Julius, in the case mentioned above, had made an application to the Bishop of Oxford against the Rector of a parish, asking the Bishop to issue a commission under the Church Discipline Act to enquire against certain unauthorised deviations from the ritual in a Church by the Rector."}}, {"text": "England", "label": "GPE", "start_char": 20203, "end_char": 20210, "source": "ner", "metadata": {"in_sentence": "The Courts of Queens Bench and of Appeal in England had differed on the question whether a mandamus from the Court could go to the Bishop commanding him to issue a commission for !"}}, {"text": "Blackburn", "label": "OTHER_PERSON", "start_char": 20842, "end_char": 20851, "source": "ner", "metadata": {"in_sentence": "Lord Blackburn said: (at p. 241) :\n\n\"I do not think the words 'it shall be lawful' are in themselves ambiguous at all."}}, {"text": "Dave Bhagwatprasad Prabhuprasad", "label": "PETITIONER", "start_char": 22605, "end_char": 22636, "source": "ner", "metadata": {"in_sentence": ">\n\nOFFICIAL LIQUIDATOR v. DHARTI OHAN (Beg, C.J.) 97 f\n\nDave Bhagwatprasad Prabhuprasad,(') State of Uttar Pradesh v.\n\nA Jogendra Singh,(2) Sardar Govindrao & Ors."}}, {"text": "Ram Kali", "label": "RESPONDENT", "start_char": 22806, "end_char": 22814, "source": "ner", "metadata": {"in_sentence": "Ram Kali etc.,(\")"}}, {"text": "ss. 442 and 446", "label": "PROVISION", "start_char": 23508, "end_char": 23523, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 442 and 446", "label": "PROVISION", "start_char": 24976, "end_char": 24991, "source": "regex", "metadata": {"statute": null}}, {"text": "1963] 3 S.C.R. 312", "label": "CASE_CITATION", "start_char": 25299, "end_char": 25317, "source": "regex", "metadata": {}}, {"text": "[1964] 2 S.C.R. 197", "label": "CASE_CITATION", "start_char": 25324, "end_char": 25343, "source": "regex", "metadata": {}}, {"text": "Article 136", "label": "PROVISION", "start_char": 25508, "end_char": 25519, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 25775, "end_char": 25783, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 26145, "end_char": 26153, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 26352, "end_char": 26360, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 442(b)", "label": "PROVISION", "start_char": 26498, "end_char": 26507, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_973_983_EN", "year": 1977, "text": "~-. ,_\n\n' '\n\nJASRAJ INDER SINGH\n\nHEM RAJ MULTAN CHAND\n\nFebruary 14, 1977\n\n(V. R. KRISHNA' IYER AND A. C. GUPTA, JJ.J\n\nParfllership Act-Rendition of accounts-Plaintiff had two shops at different places-Defendant had dealings at both p/aces--Plaintiff claimed account of one shop wit/1out set off from the other-If set off permissible.\n\nJurisdiction of High Court-Remand order-Na/lire of-Lower Court, if bound by directions in remand order.\n\nThe appellant (Plaintiff) had two shops, one in his village and the other in a city.\n\nThe respondent (defendant) had dealings of various kinds with the appellant at both the places.\n\nThe plaintiff filed a suit claiming a certain sum representing the net balance due to him from the respondent (defendant) on the village account.\n\nThe defendant on the other hand claimed that, had the city account been taken into account, it was he who would be entitled to a larger sum from the plaintiff.\n\nThe plaintiff claimed that the accounts of the village and city should not be mixed up.\n\nThe trial Court held that, though the shoP§ were located at different places, they were owned by the same person and iii equity and law, set off was permissible and it accordingly granted a decree.\n\nOn the plaii{tiff's appeal, the High Court held that rendition of city accounts was illegal and remanded the case to the trial Court.\n\nOn remand, the trial Court held that while the plaintiff was right in his demand vis-a-vis the villa, ge shop, the defendant was entitled to a certain sum from the city account and awarded a decree to the plaintiff in respect of the net balance.\n\nIn appeal, the High Court held that after remand the trial Court had no E jurisdiction to look into the city accounts as a whole and on account of a misapprehension of the observations of the remand order, an illegal decree had been passed in favour of the p\\aintiff.\n\nRestoring the trial Court's order,\n\nHELD : The true nature of the action in this case was a suit on account fo the sum due on striking a balance. That itself was the cause of action. [98 lE]\n\n1. The trial Court's view that the entirety of account in the two shops could be viewed as a composite one, was sound.\n\nThe parties are the same.\n\nThere was only one person who owned the two shops and it is wrong to construe the situation as if there were two juristic entities. The defendant who dealt with the plaintiff in the two shops was . the same person. The dealings were either in one or the other shop. The artificial dissection of the transactions could not square up with the reality of the situation.\n\n[981C-DJ\n\nIn the instant case there was no misapprehension on the part of the trial Court of the observations made by the High Court in its remand order.\n\nWhile directing remand, the High Court ordered that issue No. 6, namely, whether on making an account of the two shops of the plaintiff the defendants were entitled to a set off and thereafter to certain sums, should be decided by the trial Court.\n\nThe trial Court naturally tQOk the view that the High Court having ordered an adjudication of th~ issue, vested it with jurisdiction to enquire into the city accounts in toto and pass a de'cree. If the village and city accounts had to be gone into, the decree passed was correct.\n\n[980G-H]\n\n2. Order 8, !}lie 6 CPC deals with a specific situation and does not prevent the Court, where the facts call for wider relief, from looking into the accounts in both places to do ultimate justice between the parties.\n\n[981-HJ\n\n3: (a~ After rema1_1d by the High Court, the subordinate Court is bound by the direction .of the High Court, the same High Court hearing the matter on a\n\n11econd occas10n or any other Court of co-ordinate authority hearing the matter, cl!-nnot dscard the earlier holding.\n\nBoth a finding in a remand order cannot bmd a higher Court when it comes in appeal before it.\n\n(982A-BJ\n\n(b) The remand ordr by the High Court is a finding at an intermediate stage of the same litigation. When it came to the trial Court and escalated tit the Hi&h Court, it ren_iained the same litigation. The appeal before the Supreme Court is from the smt as a whole and, therefore, the entire subject matter is available for adjudication before the Supreme Court. [982C-D]\n\n( c) The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment. [982E]\n\nLonankutty v. Thomman (1976] 3 S.C.C. 528, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2208, 2209 of 1968. ·\n\nFrom the Judgment and Decree dated the 10th/11th August, 1965 of the Bombay High Court {Nagpur Bench) in First Appeal Nos. 120 and 123 of 1965. .\n\nS. T. Desai, D. N. Mishra and B. N. Mohta, for the appellant.\n\nM. N. Phadke, A. G. Ratnaparkhi, for respondnt.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-The two appeals, measured by their legal merits or factual dimensions, may not justify their longevity from une 23, 1949 to February 1977-the former being the date of birth: of the suit and the later the termination, at long last, of the cases in this Court.\n\nThe subject matter is a relatively small money claim which, perhaps, is less than the amount each side has spent on the forensic scrimmage. Before. we narrate the facts and discuss the law, we permit ourselves a pensive reflection about our processual justice. If we (law-makers and lawyers) tarry any longer to forge a speedy and radical jurisprudence of remedies-in-action, the long , quest for the fruits of rights may tempt suitor\"s into the traditional quagmire of processual legalistics where from extrication may prove an expensive futility.\n\nThe story which hopefully comes to a close .. with this judgment, among many others like this, bears testimony to the crying need for serious reform-not oblique by-pass-of the court-system by an aware legi'slature, lest the considerable social cost of usuing judicial remedies stultify and disenchant seekers of legal justice.\n\nThe facts, when unfolded, will validate this obiter intended to alert the law-maker.\n\nThe High Court, thanks to the then rule of valuation under Art, 133 (1) (a) of the Constitution, granted a certificate of fitness. -The appellant plaintiff, as kartha of a joint Hindu family, was running a business in the name and style of Jasraj Inder Singh with two shops,\n\nJASRAJ INDl!ll SINGH v. HEM llAJ (Krishna Iyer, !.) 975\n\ntme i~ Khamgaon and the other in Bombay. (The trade name for the Bembay Shop was slightly different.) The respondent-defendant had been having dealings with the plaintiff at both places between October 1947 and May 1948. The accounts between the parties fluctuated from time to time, since deposits, advances, withdrawals and entrustment of silver, castor, cotton and the like for sale as agents and credit~ ing the prices in the accounts were a running feature of the mutual dealings.\n\nThe plaintiff isolated the transactions which took place in Khamgaon and brought a suit claiming a sum of Rs. 11,401-7-9 which represented the net balance due on the Khamgaon khata to him from the defendant on May 12, 1948. Interest was also demanded on an alleged agreed rate. It is noteworthy that the plaintiff's initial folly, as Shri Desai, for the appellant frankly admitted, was in excluding\n\nfrom the suit claim the. amounts due one way or the other from the c Bombay branch of the business. The contracting parties were identi- ·\n\ncal, the dealings were similar and on any fair basis either could get from the other the net amount legally due from both the shops together.\n\nBut legal sense and commonsense were abandoned by the plaintiff out of the oblique motive of claiming a larger sum than would be due in case a joint balance was strus:k. This dubious device, as will be seen presently, has backlashed on the plaintiff whose disaster in the High Court has been largely courted by this motivated cleverness. To revert to the litigative narrative, the defendant urged in defence that the demand was untenable since he had deposited six bars of silver with the Khamgaon shop of the plaintiff to be sold through his Bombay branch and if the sale proceeds thereof were taken into account in the Khamgaon khata a larger sum would be due to him. (We bypass, for the time being, the fight over this claim being a set-off under order VIII, rule 6 C.P.C., or a counter-claim in the nature of a substantive relief for the alance.). This counter-claim was met by the plaintiff in an additional pleading wherein he urged that the sale of silver bars was a matter for the Bomb.ay shop and should not be mixed up with the Khamgaon dealings which were the basis of the action. What falls for regrettable comment is that even at this stage the plaintii'I' did not invoke the obvious argument that the Khamgaon and the Bombay shops both belonged to the same owner and since the transactions were between the same parties (in different places though) when a suit for (or on) finaJ accounts were filed, all the items in the twin places should figure in the resultant decree. If this straight-forward plea were taken the facts tend to show the plaintiff would still have got a decree, may be for a lesser sum.\n\nOftentimes, obdurate legal obscruantism of litigants, leads to protraction of proceedings, projection of intricate pro- 'Ceclural punctilios and the phyrric processual victory forensically won being a potent source of perverting truth, draining resources and un- <loing justice.\n\nThis sombre scenario of the case we are deciding proves how on account of the correct curial approach being blinded by the cantankerousness of the plaintiff, conveniently concurred in by\n\nthe other side, revision and appeal, remand and appeal, and attendant decades of delay and disproportionate litigative spending by both and: H two friendly businessmen, thanks to this feud, turning into foes, follow- . ed-at once a disaster to both and detriment to the busines~ community.\n\nAnd -some pre-trial conciliation activism by the court at an\n\nearly stage might well have sortedout the dispute, bettered their rela tions and pre-empted this cock-fight. Doing justice is a noble bche~~\n\nhich blesses all; deciding the lis within a judicative pyramid, provo- cative of appeals and revisions, bleeds both and unwittingly incites the. bitter persistence in the struggle to win (and lose !) . We are courts bf justice guided by law and the signature tune of the indicature is Fiat Justitia. . We gently suggested, in this spirit, whether the parties would be disposed to compose their quarrel. Counsel as often happens. constructively helped, but the purchase of peace at this late stage was difficult and we gave up. Of course, adjudication on the _law and the facts cannot and shall not be influenced by this extra-curial excursion.\n\nWe pick up the story of the suit where we left it. In the dog-fight that followed, a question of court-fee was raised and decided. That was taken up to the High Court and returned. A preliminary decree for accounts of the Bombay kbata was passed and that too leapt to the High Court resulting in a remand, fresh issues and so on. Then a decree was passed and both sides challenged it in appeal and crossobjections and the last lap of the tiring race is this court where the vanquished plaintiff is the appellant. We proceed to decode the justice and the law of the cause.\n\nWe may state that the plaintiff's obstinate attitude in' treating the Bombay shop and Khamgaon shop as two different persons each being entitled to sue the defendant without reference to the amounts due to the latter from the former in inter-connected business dealings is a legal fallacy and cute perversity. However we may repeat that the defendant also proceeded on that 'shop autonomy' theory but only urged that the silver bars were wrongfully omitted from the Khamgaon kbata. Shops are not persons although suits may be filed in trade names. The trial court took a commonsense view in commingling the business account of the same parties. This was good law. A plurality of shops owned by the same person does not proliferate into many shop-persons. At an intermediate stage of the many involved interlocutory skirmishes, the plaintiff did allege :\n\n\"The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop. The plaintiff, therefore in reply to the defendant's claim of Rs. 17000/- has to file the extracts of accounts of the Bombay shop to put the full picture of transactions before the court. As the Bombay shop shows the balance of Rs. 4535-12-0 as due to the defendants, the said fact has been so mentioned by the plaintiff in his statement.\"\n\n In passing, we may mention that the counter-claim led to a demand for court-fee and the High Court affirmed this order but reduced the sum on .which such fee was payable. Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay. The\n\n' ..\n\n,_--_----\n\n/ .. -:, '.fASRAJ.°iNDER SINGH\" v •. HEM 11.AJ (Krishna Iyer, J.) -ii77\n\nlearned . District Judge; not. obsessed. by. the wrong-headed pleadiIJ.\"i:s;·- A . took the view that the shops, though located at different places,· were • owned by the same family and the claims were so inter-connected that, in equity and law, set off was permissible and the net sum due to the plaintiff-'-less than what he had sued for-should be decreed. We may mention the relevant issues framed at the first round even here since we may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant. Issues 5 and 7 may be repro- B duced here : · ·\n\n\"5. Whether the Bombay & Khamgaon shops owned hy\n\nplaintiff's partners are so connected with each other that a composite account of the entries in the two shops can be made by the Defendants ? * * *· *\n\n7. Whether on making an account of the two shops of the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set-off thereafter to a sum of :-\n\n(a) Rs. 17,000/- as claimed by the Defendants or to\n\na set-of!.\n\nD .\n\n(b) Rs. 4,535-12-0 as stated by the Plaintiff ?\"\n\nLater, amended pleading's led to amended issues of which issues 4 to 6 are meaningful and are set out below with the findings _thereon;\n\nK4. Whether the Bombay and Khamgaon shops owned by plaintiff's partners are so connected with each other E that a composite account of the entries in two shops can )le made by the defendants ? - Yes\n\n5. (a) Whether a sum of Rs. 44,697 /10 is debited to the defendants in the account of the Bombay shop ?-Yes\n\n(b) Are these entries proper and correct ? -Yes.\n\n (c) And in time? -Yes.\n\nCi. Whether on making an account of the two shops of\n\n. the plaintiff of Bombay and Khamgaon the defendants are entitled to. a set-off and thereafter to a sum of-\n\n(a) Rs. 17,000/- as claimed by the defendants or to G a set off -No.\n\n(b) Rs. 4,535/12/- as stated by the plaintiff ?-Yes.\n\nThe plain fact emerges that the two parties were having de3lings with each other, that the dealings in Khamgaon and Bombay were inter-related and not totally different transactions, d; ssociated in nature and divorced in period.\n\nThe trlal judge treated the totality of tran- . sactions as a composie account and the suit as one on accounts. He granted a decree on these terms\n\nSUPREM! COURT REPORTS [1977] 2 s.c.R.\n\nA \"The Plaintiff shall render an account of the Bombay shop to the defendant, who shall be entitled to falsify and surcharge. A preliminary decree for accounts under order 20,\n\nrule 16 CPC shall be drawn up.\n\nAfter making an account and the necessary adjustment, the ev6ntual liability 1inter se shall be determined.\n\nCosts shall abide the result.\"\n\nB The plaintiff appealed and the defendant filed cross-objections. After a 'study of 0.8, r. 6 CPC, the High Court felt that the Bombay accounts should not have been gone into and the defendant's claim by way of set off alone was available for adjudication.\n\nSince it had been held that the silver bars were an item in the Khamgaon shop accounts, the direction for rendition of the Bombay account was illegal. The Court observed : c\n\n\"The learned lower Court was thus in error in converting the claim of set off into a claim for rendering accounts by the plaintiff to the defendants in respect of the dealings made in the Bombay shop. The lower Court was bound in terms of\n\nOrder 8 Rule 6, to treat this claim of set off as a money claim in respect of the ascertained amount and to find whether such D amount was due to the defendants from plaintiff. If such amount was found due to the defendants from the plaintiff, -then the defendants would be entitled to set off that amount as against the claim of the plaintiff.\n\nThe decree as passed by the learned lower Court will, therefore, have to be set aside. It is necessary for the trial Court to decide as to what amount was due to the defendants from the plaintiff. The issue was framed and parties have led\n\nevidence. The lower Court shall decide the 1ssues left undecided for final decree. The learned lower Court will decide whether it is proved on the facts that the defendants have to recover Rs. 17,000/- from the plaintiff, and if so found, will adjust the eventual liability inter se, and if it is found that any of the parties has to recover any amount from the other, a decree should be accordingly pas'sed. . .\n\nThe case is, therefore, sent back to the trial Court who will decide as to what amount is due to the defendants from the plaintiff.\n\nThereafter whatever amount is found due to the defendants shall be adjusted towards the proved claim of the plaintiff in respect of the deposits in the Khamga?n shop.\n\nThe Court shall pass a decree in favour of the party m whose favour the balance will be found due.\"\n\nIt is true that the High Court's observations inhibited the Bombay accounts being generally reopened but when the case was re.m.and.ed for fresh decision, the trial Court, apparently pressed by the miustice\n\nof amputating the composite dealins, wnt on to hold that while the plaintiff was right in his demand vrs-a-v1s the Khamgaon Khata, the defendant was cntited to a sum of Rs. 4.535/12/- from the Bombay\n\naccouts and awarded to the plaintiff a decree for the net balance of\n\nJASRAJ INDER SINGH v. HEM ll.AJ (Krishna Iyer, /.) 979\n\nRs. 7,464/4/-. This he did in purported compliance with the Hip A Court's direction. He wasi bound by it and to act contrary to a higher court's on!er is to be subversive of the discipline that the rule of law en joys in our hierarchical justice system. The trial Judge, in recording findings on all the issues, did a comprehensive investigation of the Bombay accounts since the silver bars, although entrusted to the Khamgaon 8hop, were sold in Bombay and rightly credited in the Bombay Khata.\n\nTo pick out a single true iteilJi which had been inextricably got enmeshed in the skein of entries and cross-entries was to tear up the fabric of the whole truth. In a finer sense, harmony is the beautiful totality of a whole sequence of notes and the concord of sweet sounds is .illtuned into disjointed discord if a note or two is unmusically cut and played. Truth, like song, is whole and half-truth can be noise : Justice i-: truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations.\n\nLaw's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness.\n\nThis divagation is justified by the need to remind ourselves that the grammar of justice accord'ing to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings.\n\nLet us pick up the threads of the litigation.\n\nEven the interrogatories served and the answers elicited made it clear that wh'ile there were two shops in two different venues, the dealings between the plaintiff and the defendant were closely connected-rather, integrated. That furnished the justification for the trial Judge to examine the Bombay accounts between the parties and he came to the factual conclusion : 'I see absolutely no reason to doubt the ccrrectness of any of the entries in these extracts of plaintiff's account book ( exht. P-23).\n\nI answer issues 5 (a) and (b) in the affirmative.\n\nEx. P. 23 contains on the credit side the sale proceeds of defendant's silver which was sold in Bombay. A plea had been feebly raised by the defendants that some of the items in the Bombay account were barred by limitation and the plaintiff could not claim credit for them. 11ris plea was also examined by the trial Court and negatived with the observation : 'I hold that in view of the credit and debit entries in Ex. P. 23 all the debit entries were within time at the material period. I answer issue 5(c) in the affirmative'.\n\nThus there was no denial of fairness in the trial because the Bombay accounts in their entirety were put in is'sue, and focused on by both sides in the evidence followecd by appropriate findings.\n\nThe upshot of this process was, in the language of the trial Court : 'Thus all things considered plaintiff is entitled to Rs. 12,000/- minus Rs. 4,535/12/- i.e., Rs. 7,464/4/- from the defendants'. The court denied costs to both since neither came with clean hands.\n\nBoth sides were guilty of not playing cricket and, in this game of over-reaching each other, the Court's penalty is denial of costs.\n\nThis rule was adopted by the trial Court.\n\nWhen the case went up in appeal, the High Court harked back to the order of the Nagpur Bench in the same case i'n a revision filed against the order of payment of court-fee for the counter-claim. It\n\ns true the High Court had then held that only a specific sum relatmg to the sale of silver bars was the basis of the counter-claim and the entire accounts of the Bombay shop was not at large before the Court.\n\nThe High Court referred again to the decree first passed by the trial Court to render an account of the Bombay shop to the defendant on the footing that the accounts in Bombay and Khamgaon were so interconnected as to warrant a composite understanding of the entries in the two shops.\n\nThis approach of the trial Court in passing a preliminary decree for rendition of accounts was set aside by the High Court in appeal at the first round on the score that the plea of the defendant was confined to one of set off under 0.8, r. 6\n\nCPC.\n\nTherefore, argued the High Court,\n\n\"A mere liability to account cannot be an answer by way of set off to the claim of the plaintiff.\n\nIn fact, the defendants in their written statement, claimed by way of set off such ascertained sum of money which, according to, them, was Rs. 17,000/-. It is because such ascertained sum was claimed by way of set off that the claim was entertained_ for investigation by the lower Court.\n\nTherefore, the only question that was before the learned lower Court was to find out what amount was due to the plaintiff from the defendants in respect of the deposits of amounts made in the Khamgaon shop and also to find out what amount was due to the defendants from tthe plaintiff in respect of the silver transactions made in the Bombay shop.\n\nThe question of rendering accounts by the plaintiff to the defendants could not arise on the facts of the case.\"\n\nThe remand order was undoubtedly binding on the lower , Court and had directed a limited enquiry and passing of a decree 'in favour of the party in whose favour the balance will be found due'.\n\nThe High Court held that after the remand the learned trial Judge had no jurisdiction to look into the Bombay accounts as a whole and on account of the misapprehension of the observations of the remand order an illegal decree had been passed in favour of the plaintiff.\n\nWhat was the misapprehension about? While directing a remand, the High Court ordered that issue 6 should be decided by the trial Court and this issue has been set out earlier by us.\n\nNaturally, the trial Court took the view that the High Court, having ordered an adjudication of issue no. 6, vested it with the jurisdiction to enquire into the Bombay accounts in toto and pass the decree that w0e liave\n\nalready indicated, viz., a deduction of the surplus due to the defendant from the Bombay accounts from the amount due to the plaintiff from the defendant according to the Khamgaon accounts.\n\nThe arithmetic is not in dispute and, indeed, while both the counsel have taken us through the evidence in the case we are satisfied that if both the Khamgaon and the Bombay accounts had to be gone into,\n\nf' JASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, !.) 981\n\nthe decree passed was correct both regarding the quantum and on the , issue of limitation.\n\nThis we affirm because Shri Phadke had feebly pressed before us that in. any case his client should be given a fresh . opportunity to make out his case regarding the various entries in the Bombay Khatha. We are not satisfied that the defendant has not had a full say and we are therefore disinclined to accede to this\n\nrequest.\n\nThe surviving question before us is whether it was in order for the trial Court to have investigated the accounts in t¥ two shops together as if they were transactions between the same two persons or whether the remand order of the High Court at the first round had fettered the trial Court's hands in doing justice in this comprehensive way.\n\nThe suit is for a sum due on accounts.\n\nThe parties are the same.\n\nThere are two shops belonging to the same owner.\n\nThe re~ turn of the income fro!!J. the two shops, for income-tax purposes, is a consolidated one. In sl;10rt, there was oruy one person who owned two shops and it is wrong to construe the situation as i•f there were two juristic entities or person•al. Secondly, the defendant, who dealt with the plaintiff in the two shops, was the same person. He had no dual characters t_o play.\n\nThe dealings were either in one or in the other shop.\n\nThey were business dealings between .two businessmen, during the same p_eriod, and even inter-relat_d, to such an extent that sometimes advances were made from one shop and realisations were made in h~ other shop.\n\nIn short an artificial dissectio111 of these transactions could not square up with the reality of the situation.\n\nShri Phadke urged that one contract was one transaction and a set of contracts need not be necessarily brough~ up in the S\\lme action between the same parties. We consider that the true nature of the action here is a suit on accounts for the sum due on striking a balance.\n\nThat itself is the cause of action.\n\nSuch a suit is not unfamiliar and such a cause of action may be made up of various minor transactions.\n\nViewed at the micro-level each may be a si•ngle contract.\n\nBut viewed; at the macro-level as a suit on accounts, it is a single cause of action. If the present action is one on accounts and if the various entries in the two shops at Khamgaon and Bombay involve transfusion of funds and goods, there is no reason why we should not accept as sound the approach made by the trial Court that the entirety of accounts in the two shops should be viewed as a composite one.\n\nIt reduces litigation; it promotes the final financial settlement as between the parties! it has the stamp of reality.\n\nOtherwise it would be an odd distortion to grant a decree for the plaintiff for, say Rs, 10,000/- on the strength of the Khamgaon accounts while he owesJ_he defendants Rs. 50,000/- according to the Bombay accounts.\n\nOrder 8, rule 6, CPC deals with a specific situation and does not prevent the Court, where the facts call for wider relief, from looking into the accounts in both places to do ultimate justice between the parties.\n\nProcedure is the handmaid and not the mistress of justice and, in this spirit, the trial Court's adjudication cannot be faulted.\n\nBe that as t may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have\n\nSUPREME °COURT J!.EPORTS\n\n[1977] 2 S.C.J!..\n\nheld in its remand order. n is true that a subordhiate court is bound. by the direction of the High Court.\n\nIt is equally true that tlie same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it.\n\nThis is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority.\n\nNor did Shri S T Desai, who asserted this proposition, which we regard as correct, cite any precedent of this Court in support.\n\nHowever, it transpires that in Lonankutty v. Thomman(') this proposition has been affirmed.\n\nViewed simplistically, the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial court and escalated to the High Court, it remained the same litigation.\n\nThe appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before us.\n\nIf, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded, we too are bound in the Supreme Court.\n\nOtherwise, the whole /is for the first time comes to this Court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by this Court.\n\nIntennediate stages of the litigation and orders passed at those stages have a provisional finality.\n\nAfter discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty (supra) observed: \"The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.\" The contention barred before the High Court is still available to be canvassed before this Court when it seeks to pronounce finally on the entirely of the suit.\n\nShri Desai cited before us the decision of the Bombay High Court, in Ratanlal( 2 ), as part of his argument.\n\nTherein it is laid d9wn that a remand order will not operate as res judicata and preclude the remanding court from reopening it at the subsequent stage of the same continuing proceeding when the law underlying the remand order is differently interpreted by a larger Bench or by the Supreme Court.\n\nSuch an order or finding recorded at the stage of remand happens to be interlocutory and -cannot terminate the cause finally so that when the litigation comes up before the remanding court, the previous remand order would ordinarily be conclusive and binding like any other interlocutory order.\n\nBut exceptions there are where a re--consideration of such an order is necessitated either by discovery of fresh matter or pf unforeseen development subsequent to the order or change of law having retrospective effect.\n\nWe do not make any comments on this argument of Shri Desai and leave it at that.\n\n(1) [1976] 3 s.c.c. 528.\n\n(2) (1975) Mah. L.J. 65.\n\nJASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, !.) 983.\n\n, The trial Court's judgment has therefore to be restored. It accords A. with justice and with law.\n\nThere will thus be a decree in favour of the plaintiff in a sum of Rs. 7,464/4/-. Even truthful cases urged through unveracious forensic processes must be visited with the punitive curi'al displeasure of denial of costs and discretionary interest.\n\nHere the plaintiff sued for a sum of Rs. 121000/~ and gets a decree for less than Rs. 8,000/-. We deny hi~ costs for the amount decreed in his favour but allow costs for the defendant to the extent he B: has succeeded (viz., for Rs. 4,535/12/-). The equities of the situation are such, especially having regard to the long lapse of time and the dubious attitude of the plaintiff and li•tigative prolixity, that we do not award interest on the amount decreed at all.\n\nP.B.R.\n\nAppeal allowed-", "total_entities": 36, "entities": [{"text": "JASRAJ INDER SINGH", "label": "PETITIONER", "start_char": 13, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "JASRAJ INDER SINGH", "offset_not_found": false}}, {"text": "HEM RAJ MULTAN CHAND", "label": "RESPONDENT", "start_char": 33, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "HEM RAJ MULTAN CHAND", "offset_not_found": false}}, {"text": "February 14, 1977", "label": "DATE", "start_char": 55, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "' '\n\nJASRAJ INDER SINGH\n\nHEM RAJ MULTAN CHAND\n\nFebruary 14, 1977\n\n(V. R. KRISHNA' IYER AND A. C. GUPTA, JJ.J\n\nParfllership Act-Rendition of accounts-Plaintiff had two shops at different places-Defendant had dealings at both p/aces--Plaintiff claimed account of one shop wit/1out set off from the other-If set off permissible."}}, {"text": "V. R. KRISHNA' IYER", "label": "JUDGE", "start_char": 75, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 99, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "CPC", "label": "STATUTE", "start_char": 3292, "end_char": 3295, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court", "label": "COURT", "start_char": 4100, "end_char": 4113, "source": "ner", "metadata": {"in_sentence": "The appeal before the Supreme Court is from the smt as a whole and, therefore, the entire subject matter is available for adjudication before the Supreme Court. ["}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4781, "end_char": 4792, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. N. Mishra and B. N. Mohta, for the appellant.", "canonical_name": "S. T. Desai"}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 4794, "end_char": 4806, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. N. Mishra and B. N. Mohta, for the appellant."}}, {"text": "B. N. Mohta", "label": "LAWYER", "start_char": 4811, "end_char": 4822, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. N. Mishra and B. N. Mohta, for the appellant."}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 4844, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, A. G. Ratnaparkhi, for respondnt."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 4858, "end_char": 4875, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, A. G. Ratnaparkhi, for respondnt."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 4937, "end_char": 4949, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-The two appeals, measured by their legal merits or factual dimensions, may not justify their longevity from une 23, 1949 to February 1977-the former being the date of birth: of the suit and the later the termination, at long last, of the cases in this Court."}}, {"text": "Jasraj Inder Singh", "label": "PETITIONER", "start_char": 6418, "end_char": 6436, "source": "ner", "metadata": {"in_sentence": "-The appellant plaintiff, as kartha of a joint Hindu family, was running a business in the name and style of Jasraj Inder Singh with two shops,\n\nJASRAJ INDl!ll SINGH v. HEM llAJ (Krishna Iyer, !.)", "canonical_name": "JASRAJ INDER SINGH"}}, {"text": "Bombay", "label": "GPE", "start_char": 6544, "end_char": 6550, "source": "ner", "metadata": {"in_sentence": "975\n\ntme i~ Khamgaon and the other in Bombay. ("}}, {"text": "Khamgaon", "label": "GPE", "start_char": 7058, "end_char": 7066, "source": "ner", "metadata": {"in_sentence": "The plaintiff isolated the transactions which took place in Khamgaon and brought a suit claiming a sum of Rs."}}, {"text": "May 12, 1948", "label": "DATE", "start_char": 7208, "end_char": 7220, "source": "ner", "metadata": {"in_sentence": "11,401-7-9 which represented the net balance due on the Khamgaon khata to him from the defendant on May 12, 1948."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 7337, "end_char": 7342, "source": "ner", "metadata": {"in_sentence": "It is noteworthy that the plaintiff's initial folly, as Shri Desai, for the appellant frankly admitted, was in excluding\n\nfrom the suit claim the."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 8450, "end_char": 8455, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Suwalal", "label": "OTHER_PERSON", "start_char": 12390, "end_char": 12397, "source": "ner", "metadata": {"in_sentence": "At an intermediate stage of the many involved interlocutory skirmishes, the plaintiff did allege :\n\n\"The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop."}}, {"text": "Phadke", "label": "OTHER_PERSON", "start_char": 13834, "end_char": 13840, "source": "ner", "metadata": {"in_sentence": "We may mention the relevant issues framed at the first round even here since we may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant."}}, {"text": "Bombay", "label": "PETITIONER", "start_char": 13925, "end_char": 13931, "source": "ner", "metadata": {"in_sentence": "Whether the Bombay & Khamgaon shops owned hy\n\nplaintiff's partners are so connected with each other that a composite account of the entries in the two shops can be made by the Defendants ?"}}, {"text": "order 20,\n\nrule 16", "label": "PROVISION", "start_char": 15782, "end_char": 15800, "source": "regex", "metadata": {"statute": null}}, {"text": "CPC", "label": "STATUTE", "start_char": 15801, "end_char": 15804, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "CPC", "label": "STATUTE", "start_char": 16061, "end_char": 16064, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order 8 Rule 6", "label": "PROVISION", "start_char": 16640, "end_char": 16654, "source": "regex", "metadata": {"linked_statute_text": "CPC", "statute": "Code of Civil Procedure"}}, {"text": "Khamgaon Khata", "label": "RESPONDENT", "start_char": 18365, "end_char": 18379, "source": "ner", "metadata": {"in_sentence": "It is true that the High Court's observations inhibited the Bombay accounts being generally reopened but when the case was re.m.and.ed for fresh decision, the trial Court, apparently pressed by the miustice\n\nof amputating the composite dealins, wnt on to hold that while the plaintiff was right in his demand vrs-a-v1s the Khamgaon Khata, the defendant was cntited to a sum of Rs."}}, {"text": "Nagpur", "label": "GPE", "start_char": 21798, "end_char": 21804, "source": "ner", "metadata": {"in_sentence": "When the case went up in appeal, the High Court harked back to the order of the Nagpur Bench in the same case i'n a revision filed against the order of payment of court-fee for the counter-claim."}}, {"text": "CPC", "label": "STATUTE", "start_char": 22658, "end_char": 22661, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order 8, rule 6", "label": "PROVISION", "start_char": 27739, "end_char": 27754, "source": "regex", "metadata": {"statute": null}}, {"text": "CPC", "label": "STATUTE", "start_char": 27756, "end_char": 27759, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S T Desai", "label": "LAWYER", "start_char": 28775, "end_char": 28784, "source": "ner", "metadata": {"in_sentence": "Nor did Shri S T Desai, who asserted this proposition, which we regard as correct, cite any precedent of this Court in support.", "canonical_name": "S. T. Desai"}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 29891, "end_char": 29902, "source": "ner", "metadata": {"in_sentence": "After discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty (supra) observed: \"The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.\""}}, {"text": "Lonankutty", "label": "OTHER_PERSON", "start_char": 29933, "end_char": 29943, "source": "ner", "metadata": {"in_sentence": "After discussing various aspects of the matter, Chandrachud J., speaking for the Court in Lonankutty (supra) observed: \"The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.\""}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 30418, "end_char": 30435, "source": "ner", "metadata": {"in_sentence": "Shri Desai cited before us the decision of the Bombay High Court, in Ratanlal( 2 ), as part of his argument."}}, {"text": "Ratanlal", "label": "OTHER_PERSON", "start_char": 30440, "end_char": 30448, "source": "ner", "metadata": {"in_sentence": "Shri Desai cited before us the decision of the Bombay High Court, in Ratanlal( 2 ), as part of his argument."}}]}
{"document_id": "1977_2_984_990_EN", "year": 1977, "text": "RADHA KISHAN SAO\n\nGOP AL MODI & ORS.\n\nFebruary 14, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nBihar Buildings (Lease, Rem and Eviction) Control Act, 1947, ss. 11 and llA -Scope of-Rellt of premises fixed by Rent Controller-Subsequent contract for letting out furniture-Failure to pay rent of furniture-If a ground for eviclion.\n\nSection 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified therein.\n\nUnder s. I IA, if in a suit for recovery of possession of any building the tenant contests the suit, the Court may make an order for deposit of rent and arrears, if any, and on failure to deposit the arrears within fifteen days of the date of the order, the Court shall orcfer the defence against ejectment to be struck out.\n\nThe plaintiff ( re3pondent) let out two rooms of his premises to the defendant {appellant) at a rent fixed by the Rent Controller under s. 5 of the Act.\n\nSometime later, the plaintiff let out some furniture t6 the defendant at a mutually agreed rent.\n\nThe plaintiff's suit for eviction of the defendant on the ground of non-payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under s. ll(l){d) of the Act.\n\nOn appeal, the Subordinate Judge held that non-payment of rent of furniture along with the rent of the premises was a default within the meaning of s. 11(1 ){d).\n\nThe High Court upheld the decision of the Subordinate Judge. On the question of deposit of rent under s. llA, the Subordinate Judge held that the defendant bad filed documents to show subsequent deposit in a regular way. Dn the other hand, the High Court came to the conclusion that the defendant failed to produce any material to show as to what deterred him from \"depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir.\" On this ground, it allowed the plaintiff's suit.\n\nAllowing the appeal,\n\nHELD : The High Court and the Subordinate Judge committed an error of law in a, ccepting the ground of default under s. ll(l)(d) on a wrong appreciation of the legal position on the facts found bv the first appellate Court. There was, therefore, no basis for granting a decree for eviction under s. 11 (1 )( d) of the Act. [990Cl\n\n1. (a) It is the default in the payment of rent fixed by the Rent ContrQller which will furnish a ground for eviction under s. 11 (l )(d). Section 4 of the Act provides that notwithstanding anything contained in any agreement er law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is payable for the time being, in, respect of .any building except in accordance with the provisions of the Act.\n\n[989E-F]\n\nIn the instant case, the Rent Controller having fixed the rent of the premises, the plaintiff could .not alter that rent without an order of the Ri;_nt Controller.\n\nDefault of the pavment of furniture rent agreed to by the defendant subsequent to the lease of thepremises could not be brought within the miscltief of s. 11 (I)\n\n(d) to entitle the landlord to a decree for eviction. The furniture rent remains divorced from the rent of the building under the original demise.\n\n[989D &P]\n\n(b) Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under s. 7.\n\nThere is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act. No\n\nRADHA KISHAN SAO v. GOPAL MODI,(Goswami, J.) 985,\n\nenhancement of fair rent is legally permissible except in accordance with the A provisions of the Act. Default of payment of any rent in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground\n\nfor eviction under s. 11 ( 1 )( d) of the Act.\n\n[990A-B]\n\nThe penalty of striking out the defence for noh-compliance .of an order under s. llA is district from the grounds of eviction permitted under s. 11. [988H]\n\n2. The contention of the defendant that an order under s. 1 IA could be passed only by the trial Court is without forca because an appeal is a continuation of the suit.\n\nThe advantage given to the landlord under s. llA for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation, whether in the trial Court or in appeal. [9880]\n\n~. . f 3.h Wdhefre dthe firsht apHp.elhlatCe court came to a posidtive _findingd.offf fact in favour o t e e en ant, t e tg ' ourt was wrong in a optmg a 1 erent course to reach a contrary conclusion for the first time on a vital fact. The matter would have been different if the High Court had called for additional evidence under 0.41, r. 28, C.P.C.\n\nBut the course adopted by the High Court has resulted in great prejudice to the defendant.\n\n[987E-F]\n\nIn the instant case ihe High Court itself had accepted that the amount of rent was handed over to the. Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited\n\nit. In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant D by striking out his defence agairist ejectment.\n\n[988B]\n\n1\" -------,\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 721 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal froni Appellate Decree No. 6 of 1974).\n\nHarbans Singh Marwah, for the appellant.\n\nK. K. Sinha, S. K. Sinha and Devi Prasad, for respondents.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of •a suit for eviction of the tenant.\n\nTwo rooms being shop Nos. 17 and 18 of Modi Building in Commissioner's Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the defendant (appellant herein).\n\nWe will describe them as ithe plaintiff and the defendant.\n\nIt is common ground that fair rent of Rs. 50/- per month (including water tax) was determined for the two shops by an order of the Rent Controller under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953 .\n\nLater on, certain furniture, such as five almirahs and .six racks, were also let out by the. plaintiff to the defendant on a monthly rental of Rs. 28F A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non-p•ayment of rent of the said two shops and furniture for three months from July to September 1965.\n\nA The Munsiff, Ranchi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11 (1 )( d) of the Act.\n\nThe M11nsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act.\n\nOn appeal the Second Additional Subordinate Judge, R•anchi, reversed the judgment of the trial court and decreed the suit for eviction upholding the ground of default.\n\nThe Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/- per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/- per month wa$ not a valid discharge of his rental liability and he was a defaulter within the meaning of section 11 ( 1 H d) of the Act.\n\nThe Subordinate Judge also held that there was. no proper service of the notice of eviction.\n\nWe are not concerned in this appeal with the question of service of notice.\n\nSince the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose :\n\n( l) \"I, therefore, decide that the plaintiff was entitled to realise Rs. 50/- as monthly rent.\n\n(2) In view of the evidence of the parties and Ext. 2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/- per month.\n\n(3) The subsequent supply of furniture and that of\n\nsufficient value must be construed as a quite independent contract unconnected with the original tenancy .... \".\n\nThe defendant's second appeal to the High Court failed.\n\nThe High Court agreed with the first appellate court that the rent for furniture was also lawfully tyayable under section 11 (1) (d) and hence the ground of default of payment of Rs. 78/- per month from July to September 1965 was available to the plaintiff.\n\nThe High Court also gave an additional reason for sustaining th• eviction decree.\n\nThere was an order by the Subordinate Judge, in the course of the appeal, under section l lA of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/- per month in terms of that Section. It appears there 'Yas some controversy before the Subordinate Judge as to whether this order under section 11 A was complied with or not by the defendant.\n\nThe Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non-compliance with the court's order under section 1 lA in the following terms :\n\n\"It was argued on behalf of the appellant (plaintiff) that the defendant had not deposited subsequent rent in spite of direction by, the court arfd so this court had to\n\nstrike out the defence against ejectment.\n\nThe defendant A had filed the documents to show subsequent deposit in regular way.\n\nSo this plea of plaintiff fails\".\n\nA second attempt, -and this time successfully, was made in the High Court by the plaintiff to press the ground under section llA of the Act to strike out the defendant's defence against ejectment.\n\nIt is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non-compliance with\n\nection l lA of the Act.\n\nThe High Court, therefore, allowed parties to produce some documentary evidence and relying upon the same ____ held as follows:-\n\n\"Learned Advocate appearing for the appellant (defendant) contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court, no penalty should be imposed on the appellant (defendant).\n\nLearned Advocate, however, failed to produce any material to show as to what detracted the appellant (defendant) to deposit the money himself on 15-3-1974 on the passing of the challan and what caused the handing over the money to the Nazir\".\n\n< Jn a matter where the first appellate court came to a positive finding in favour of the defendant with regard to the non-compliance with its order under section 1 lA, we do not consider that the High Court was right in adopting the course it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter's oral testimony.\n\nThere is no denial even in the written information furnished by the Nazif'that the rent was handed over to him on March 14, 1974. The matter would have been different if the High Court, in the interest of justice, had called for additional evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportunity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation.\n\nIt is true that the, High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in gret prejudice to the defendant.\n\nEven the counsel were unable to inform us about the procedure of depositing the money in compJioance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court.\n\nIn view of the fact that the first appellate court held the deposit of the amount sufficient under the law being within the statutory period laid down under section 11 A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials - produced\n\nbefore it.\n\nThis is particufarly so since the High Court itself appears H to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in the extract from the judgment quoted\n\n15-206SCT /77\n\nabove.\n\nThe only objection of the High Court was that the defendant instead of handing over the amount to the Nazir should have \"himself' deposited the amount on March 15,\n\n1974. Since the money was deposied by the Nazir on May 28, 1974, in absence of a prope~ enqwry mto the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment. The second ground relied upon by the High Court for decreeing the plaintiff's eyiction. suit, therefore, fails.\n\nFurther section 11 describes the circumstances under which evic-- tion of tenants can take place. Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein.\n\nSection 1 lA which was inserted by amendment by Bihar Act 16 of 1955 reads as. follows:-\n\n\"Deposit of rent by tenants in suits for ejectment.-If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tell'ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the_ rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment_ to be struck out and the tenant tobe placed in the ame position as if he had not defended the claim to ejectment.\n\nThe landlord may also apply for per-. mission tg withdraw the deposited rent without prejudice to his riht to claim decree for ejectment and the court may permit him to do so.\n\nT, he Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant''.\n\nIt is submitted by the defendant that an order under section 1 lA can be passed only by the trial court.\n\nWe are, however, unable to accept this position, since appeal is a continuation of the suit.\n\nThe advantage which is given to the landlord under section 1 lA for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litigation, wheth<:-r in the trial court or in appeals. The pealty of striking out defen?e _for non-compliance of an order under section 1 lA has to be kept d1stmct from the grounds of eviction permitted under section 11 of the Act.\n\nThe only ground that remains for consideration is whether the defendant defaulted 'in the payment of rent from July to September,\n\n1965. If it were merely a finding of fact by the first apl'ellate col}rt,_\n\nithere would be nothing wrbng for the High Court to dismiss the A second appeal. The question, however, assumes a legal comptexion even. on the findings of facts of the first appellate court.\n\nThe first appellate court found that rent for the premi•cs was Rs. 50/- per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs. 28jper month for the furniture was a subject matter of \"subsequent supply\" B and \"a quite independent contract unconnected with the original tenancy\".\n\nIt, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50jper month for the premises, the defendant was a defaulter --- -'- within the meaning of section 11 (1) (d) of the Act.\n\nThe High Court has accepted this legal conclusion of the Subordinate Judge.\n\nWe are, however, unable to accept the above legal position of the defendant's default in this case on the findings of facts set out above .. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953.\n\nThe parties having been already before the Rent Controller for fixation of fa'ir rent of the premises, the plaintiff could not alter that fixed rent without order of the Rent Controller.\n\nSection 4 of the Act provides that \"notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawfuL for any landlord to increase, or claim •any increase in, the rent which is payable for tpe time being, 'in respect of any building except in accordance with the provisions of this Act\".\n\nThe two shops, which are building for the purpose of section 2(aa) of the Act, were rented out as an unfurnished building.\n\nThis amount of rent of Rs. 50/- was determined by the Rent Controller as fair rent under section 5 of the Act. It is the default in the p•ayment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section ll(l)(d) of the Act.\n\nDefault of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11 ( 1) ( d) to entitle the landlord to a decree for eviction.\n\nOn the findings of the first appellate court the furniture rent remains divorced from the. rent of the building under the original demise.\n\nEven if the furniture be returned, the lease for the building in this case will not be affected.\n\nThe plaintiff submits that since the definition of building includes furniture the rent becomes consolidated 11nd the defendant was liable •to pay the total amount of Rs. 78/- and any default for two months to pay the consolidated rent will attract sections I I (1) ( d) of the Act.\n\nThe plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermination of the rent under section 7 of the Act.\n\nWe are unable to accept the above submission.\n\nAny alteration of the fair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have fo receive the_ imprimatur of the Rent Controller. Section 7, inter alia,\n\nprovides that if, at any time after the fair rent of a building has been determined, it appears to the Rent Controller that subsequent to such determination some addition or improvement has been made to the building at the landlord's expense, the Controller may redetermine the fair rent of the building.\n\nThere is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order fni)m the Controller fixing the revised rent Wf1ich is admissible under the Act.\n\nAny other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants.\n\nNo enhancement of fair rent fixed by the Rent Controlj.er is legally permissible except in accordance with the provisions of the Act.\n\nDefault of. payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail oa ground for eviction under section 11 (1 ) ( d) of the A cit.\n\nThe High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of Jaw in accepting the ground of default under section 11(1) (d) on a wrong appreciation of the legal position on the facts f9und by the first appellate court. There was, therefore, no basis. for granting a decree for eviction under section 11 ( 1 ) ( d) of the Act.\n\nIn the result the judgment of the High Court i1, set aside and the judgment and the decree of the Munsiff dismissing the suit stand restored.\n\nThe appeal is allowed with costs.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 63, "entities": [{"text": "SAO\n\nGOP AL MODI & ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "GOPAL MODI & ORS", "offset_not_found": false}}, {"text": "February 14, 1977", "label": "DATE", "start_char": 38, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "February 14, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 58, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Control Act, 1947", "label": "STATUTE", "start_char": 140, "end_char": 157, "source": "regex", "metadata": {}}, {"text": "ss. 11", "label": "PROVISION", "start_char": 159, "end_char": 165, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1947", "statute": "Control Act, 1947"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 333, "end_char": 343, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1947", "statute": "Control Act, 1947"}}, {"text": "Control Act, 1947", "label": "STATUTE", "start_char": 394, "end_char": 411, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1031, "end_char": 1035, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1947", "statute": "Control Act, 1947"}}, {"text": "s. 11(1 )", "label": "PROVISION", "start_char": 1578, "end_char": 1587, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2447, "end_char": 2452, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2606, "end_char": 2611, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 2621, "end_char": 2630, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 3267, "end_char": 3272, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3567, "end_char": 3571, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 4063, "end_char": 4068, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 4244, "end_char": 4249, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 4314, "end_char": 4318, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 4994, "end_char": 4999, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Nazir", "label": "OTHER_PERSON", "start_char": 5207, "end_char": 5212, "source": "ner", "metadata": {"in_sentence": "Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited\n\nit."}}, {"text": "Harbans Singh Marwah", "label": "LAWYER", "start_char": 5781, "end_char": 5801, "source": "ner", "metadata": {"in_sentence": "Harbans Singh Marwah, for the appellant."}}, {"text": "K. K. Sinha", "label": "LAWYER", "start_char": 5823, "end_char": 5834, "source": "ner", "metadata": {"in_sentence": "K. K. Sinha, S. K. Sinha and Devi Prasad, for respondents."}}, {"text": "S. K. Sinha", "label": "LAWYER", "start_char": 5836, "end_char": 5847, "source": "ner", "metadata": {"in_sentence": "K. K. Sinha, S. K. Sinha and Devi Prasad, for respondents."}}, {"text": "Devi Prasad", "label": "LAWYER", "start_char": 5852, "end_char": 5863, "source": "ner", "metadata": {"in_sentence": "K. K. Sinha, S. K. 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"May 30, 1953", "label": "DATE", "start_char": 6606, "end_char": 6618, "source": "ner", "metadata": {"in_sentence": "50/- per month (including water tax) was determined for the two shops by an order of the Rent Controller under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953 ."}}, {"text": "April 18, 1966", "label": "DATE", "start_char": 6815, "end_char": 6829, "source": "ner", "metadata": {"in_sentence": "28F A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non-p•ayment of rent of the said two shops and furniture for three months from July to September 1965."}}, {"text": "Ranchi", "label": "GPE", "start_char": 7005, "end_char": 7011, "source": "ner", "metadata": {"in_sentence": "A The Munsiff, Ranchi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11 (1 )( d) of the 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{"document_id": "1977_2_991_1006_EN", "year": 1977, "text": "ONKAR NATH & ORS.\n\nTHE DELHI ADMINISTRATION\n\nFebruary 15, 1977\n\n[Y. v. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.J\n\nDefence of lndia Rules 1971-Rule 118(1 )(a) r/w Notification dated 26-11-1973 prhibiting a strike \"in connection with any industrial dispute\", ingredients of-Legal evidence must Tfr led to prove the ingredients of an offence.\n\n~ Judicial notice-Whether the courts can take judicial notice of facts namely \"a railway strike was imminent\" dnd such a strike was, in fact, launched on May\n\n8, 197 4 \"in a trial for an offence of \"exciting workmen 'to go on strike\" - C Section 46 and 57 of the Evidence Act (Act 1 of 1872), 1872.\n\nIn respect of an alleged speech made, on May 5, 1974, at a meeting held in Tugblakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction reduced the D sentence to the period already undergone.\n\nIn appeal hy special leave to this Court, the appellants contended (1) There was no legal evidence to warrant the conviction; (2) The courts below were not justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to l!O on strike is outside the definition of the word \"strike\" contained E in rule 118(3)(b) of the Defence of India Rules, 1971.\n\nAllowing the appeal by special leave, the court,\n\nHELD : (1) The courts below were justified in assuming withrut formal evidence that the railway strike was imminent on May 5. 1974 and that a strike intended to paralyse the civic life of the nation was undertaken by a section of workers on May 8, 1974.\n\n[995A-B]\n\n(2) The purpose of s. 57 of the Evidence Act is to provide that the court shall take judicial notice of certain facts rather than exhaust the category of facts of which the court may in appropriate cases take judicial notice.\n\nReco.!!llition of facts without formal proof is an act of expediency.\n\nShutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wa•steful ritual. No court insists on a formal Proof by evidence of notorious facis of history-oast or present and events that have rocked the nation need no nroof and are iudicially noticed. Judicial notice in snch matters takes place of proof and is of equal force.\n\n[994F-H, 995-A]\n\n(3) The Government possesses the power to issue an appropriate orde; under rule J 18(1) orohibitinll the strike \"in connection with any industrial dispnte\" even if there is no existing industrial disnute because the nower can be exercised oroohylactically by preventing a strike in connection with an imminent strike,\n\n[995C-DJ\n\n(4) Jn order to maintain a charue under rule 118(1) of the Defence of H India Rules, 1971. the prosecution has to establish not only that a strike was imminent or had actually taken place of which indicial notice may be teken. but further that the strike was in connection with the industrial dispute which is a matter of evidence. f995E-Fl\n\nA . ( 5) What is chargeable as contravening the prohibition must under the order issued by the. Government of India under Rule 118(1) (a) is, in the. circumstances of this case, the wor_ds used by the speakers and not the gist of the speeches made by a member of the audience.\n\nA summary of speeh may broadly and generally not be inaccurate and it may' not faithfully reflect what the speaker actually said and in what context.\n\n[9940-E]\n\n. (6) Rule 118(1)(a) limits the p9wer of the Government to issue an appropnate order, general or special, for prohibiting inter alia, a strike in connection with any industrial dispute.\n\nSince the rule does not empower the Government to issue an order prohibiting strikes. generally, whether it is in connection with the industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute. In the instant case, the prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appel- ,,- ~ - !ants gave incitement to a strike in connection with any industrial dispute. ' c\n\n[995F-G] . . .\n\n(7) The contention of the prosecution that what is contemplated by rule 118 ( 1) (a) itself is a strike in connection with an industrial dispute and, therefore, it is not necessary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything contained in sub-rule (3) of rule 118 which defines expressions \"industrial dispute\" and \"strike\".\n\n[995H, 996A-BJ\n\nfln view of the finding that the evidence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought\n\nit unnecessary to consider the question whether the conduct attributed to _the appellants fall within the mischief of the order dated 26-11-1973, since inciting other workers to go on strike may be outside the definition of the words \"strike\" contained in Rule 118(3 )(b) of the Defence of India Rules, 1971.\" The court, however. pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant cae may be punished in Rule 36(6) (j) read with Rule 43(1)(a).}\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 502 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated 16-9-1975 of the Delhi High Court in Criminal Revision No. 139 0£ 1975).\n\nA. K. Gupta, for the appellants.\n\nG. Das, and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was deliverCd by\n\nCHANDRACHUD, J.-The appellants who are Railway employees, were convicted by the learned Metropolitan Magistrate, Delhi nnder rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months' rigorous imprisonment.\n\nThe order of conviction W'as upheld in appeal ?Y he learned Aditional ssions J u_dge\n\nand in revision by the Delhi High Court with the difference tht whereas the former upheld the sentence .too, the latter hs reduced it to the period already undergone.\n\nIn this appeal by special 1eave the legality of conviction is questioned by the appellants.\n\nThe case of the prosecution is that the appellants are leaders of the Northern Railwaymen's Union and that on May 5, 1974 they\n\nONKAR NATH v. DELHI ADMN. (Chandrachud, 1.) 993\n\nheld a meeting in T\\Ighlakabad Railway Yard inciting railway workers to go on strike from May 8.\n\nThis is alleged to be in breach of the order passed by the Government of India under rule 118 ( 1) of the Defence of India Rules, 1971.\n\nThat rules reads thus :\n\n'.'118.\n\nAvoidance of strikes and lock-outs.-(1) If in the opinion of the Central Government or the State qovcrnment it is necessary or expedient so to do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to any undertaking or class of undertakings, make provision-\n\n( a) for prohibiting, subject to the provisions of the order, a strike or lock-out in connection with any industrial dispute;\n\n(b) for requiring employers; workmen, or both, to D observe for such period as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order :\n\nProvided that no orcler made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to the workmen than those E which were applicable to them at any time within three months preceding the date of the order.\"\n\nBy ub-rule ( 2), if any person contravenes any order made under • sub-rule ( 1) he shall be punishable with imprisonment for a term which may extend to three years or with fine or with .both.\n\nThe order issueq under rule 118 ( 1) (b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of\n\nthe c0mmunity to prevent strikes 'in the Railway Services and that therefore \"the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of s'ix months w.e.f. the 26th November,\n\n1973.\" .\n\nIn support of its case the prosecution examined three witnesses called S. D. Sharma, Dilbagh Rai and Jasbir Singh.\n\nSharma's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him.\n\nThe witness admits that he had no personal knowledge that the appellants had held any meeting nor 11ad\n\nhe heard their speeches.\n\nThe second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Sration and wa& entrusted with the investigation of the case.\n\nIn the nature of things he too has no personal knowledge of what the appellants did or said.\n\nJasbir Singh who was in charge of the Diesel Shed at Tughlakabad! is i'11 the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under r. 118(1) (a) of the Defence of India Rules, 1971.\n\nBut even that evidence, in our opinion, fs inadequate for proving the charge levelled agai•nst the appellants.\n\nJabir Singh claims to have attended a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meeting.\n\nHe has given his own gist or summary of what the appellants meant to convey to the audience stating that they incited the workers to go on strike and threatened them with dire consequences if they did not respond to the call.\n\nSuch a broad, resume is not safe to rely upon for holding the charge proved. In view of the total absence of evidence showing what the1 appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction.\n\nWhat is chargeable as contravening the prohibition i•mposed under1 the order issued by the Government of India under r. 118 ( 1) (a) is in the circumstances of this case tJie words used by the speakers and not the gist of the speeches made by a\n\nmember of the audience.\n\nA summary of a speech may broadly and generally not be inaccurate and yet it may not faithfully reflect what the speaker actually said and in what context.\n\nTherefore, we would prefer not to rely on the gist given by the witness without knowing the data on the basis of which the gist was given.\n\nThe charge must therefore fail.\n\nOne of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike was in fact launched on May 8, 1974.\n\nSecton 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved. Section 57 enumerates facts of which the Court \"shall\" take judicial notice and states that on all matters of public history, literature, science or art the Court may resort for its aid to appropriate books or documents of reference.\n\nThe list of facts mentioned n section 57 of which the Court can take judicial notice is no_t exhaustive. and indeed the pur ... pose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in -appropriate cases take judicial notice.\n\nRecognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. (see Taylor 11th edn. pp 3-12; Wigmore sec 2571 foot-note; Stephen's Digest, notes to Art, 58; Whi:tley Stokes' Anglo-\n\nIndian Codes Vol. II p. 887). Shutting the judicial eye to the\n\nONKAR NATH v. DELHI ADMN. (Chandrachud, J.) 995\n\nexistence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless andl wasteful ritual.\n\nNo Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poH, the passing away of a man of eminence and events that have rocked the naL.'On need no proof and are judicially noticed.\n\nJudicial notice, in such, matters, takes the place of proof and is of equal force.\n\nIn fact, as a means of establishing notorious and widely known facts it is superior to formal means of proof. Accordingly, the Court~ below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike intended to paralyse the civic life of the Nation was ....... undertaken by a section of workers on May 8, 1974.\n\nBut the matter does not rest there.\n\nRule 118(l)(a) empowers the Government to issue an order prohibiting a strike \"in connection with any industrial di'spute\".\n\nThe Order issued by the Government on November 26, 1973 recites, as required by the Rule, that the Central Government prohibits a strike \"in connection with any industrial dispute\" in the Railway Services in India for a period of six months.\n\nRule 118(2) prescribes punishment for a person who contravenes any order made under th~ Rule.\n\nWe haveno doubt that the Government possesses the power to issue an appropriate order under Rule 118 ( 1 ) e\\'.en if then; is no existing industrial dispute because the power can be exercised prophylactically for preventing a strike in connection with an imminent industrial dispute.\n\nBut the prosecution must establish, in order that the conduct charged as penal may fall within the mis::hief of the Order, that the strike in rl!gard to which the i•ncitement was given was in connection with an industrial dispute.\n\nUnless that is established, there can be no contraven!ion of the order issued by the Government, because the contravention consists in doing what is prohibited by the order.\n\nAnd what is prohibited by the order is a strike in connection with an i•ndustrial dispute. Thus, the prosecution has to establish not only that a strike was imminent or had actually taken place, of which judicial notice may be taken, but further that the strike was in connection with an industr;•al dispute, which is a matter of evidence.\n\nRule 118 (I) (a) limits the power of the Government to issue an appropriate order, general or special, for prohibiting inter alia a strike i•n connection with any industrial dispute.\n\nSince the rule does not empower the Government to issue an order prohibiting strikes generally, whether they bear any connection with an industr;•al dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute.\n\nThe prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any ·;•ndustrial dispute.\n\nIt is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what i~ contemplated by rule 118 (I) (a) itself is a strike in connection wit Ii\n\nD '\n\nearly stage might well have sorted out the dispute, be1ter_ed their relations and pre-empted this cock-fight. Doing justice is a noble behest which blesses all; deciding the /is within a judicative pyramid, provocative of appeals and revisions, bleeds both and unwittingly incites the. bitter pers!stence in ihe struggle to win (and 16se !) . We are courts of justice guided by law and the signature tune of the indicature is Fiat Justitia.\n\nWe gently suggested, in this spirit, whether the parties would be disposed to compose their quarrel. Coun5el as often happens, constructively helped, but the purchase of peace at this late stage was difficult and we gave up. Of course, adjudication on the _law and the facts cannot and shall not be influenced by this extra-curial excursion.\n\nWe pick up the story of the suit where we left it. In.the dog-fight that followed, a question of court-fee was raised and decided. That was taken up to the High Court and retllrned. A preliminary decree for accounts of the Bombay khata w11s passed and that too leapt to the High Court resulting in a remand, fresh issues and so on. Then a decree was passed and both sides challenged it in appeal and cross- . objections and the last lap of the tiring race is this court where the\n\nvanquished plaintiff is the appellant. We proceed to decode the justice and the law of the cause. · '.\n\n. We may state that the plaintiff's obstinate attitude in treating the Bombay shop and Khamgaon shop as two different persons each being_ entitled to sue the defendant without reference to the amounts due to the latter from the former in inter-connected business dealings is a legal fallacy and cute perversity. However we may repeat that the defendant also proceeded on that 'shop autonomy' theory bnt only urged that the silver bars were wrongfully omitted from the Khamgaon khata.\n\nShops are not. persons although suits may be filed in trade names. The trial court took a commonsense view in commingling_ the business account of the same parties. This was good law. A plurality of shops owned by the same person does not proliferate into many shop-persons.\n\nAt an intermediate stage of the many iI)volved interlocutory skirmishes, the plaintiff did allege : ] ,:-- '\n\n\"The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop. The plaintiff, therefore in reply to the defendant's claim of Rs. 17000/- has to file the extracts of accounts of the Bombay shop to put the full picture of transactions before the court.\n\nAs the ombay shop shows the balance of Rs. 4535-12-0 as due to the defendants, the said fact has been so mentioned by the plain- . tiff iq..his statement.\"\n\nIn passing, we may mention that the counter-claim led to a demand for court-fee and the High Court affirmed this oroer but reduced the sum on which such fee was payable. Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay. The\n\nJASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, J.) 977\n\nlearned District Judge, not obsessed, by the wrong-headed pleadings, A took the view that the shops, though located at different places, were owned by the same family and the claims were so inter-connected that, in equity and law, set off was permissible and the net S\\Jm due to the plaintiff-less than what lie had sued for-should be decreed. We may\n\nmention the relevant issues framed at the first round even here since we 'may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant. Issues 5 and 7 may be repro- B duccd here:\n\n\"5. Whether the Bombay & Khamgaon shops ownicl by plaintiff's partners are so connected with each other that a composite account of the entries in the two shops can be made by the Defendants ? * * * *\n\n7. Whether on making an account of the two shops of the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set-off thereafter to a sum of :-\n\n(a) Rs. 17,000/- as claimed by the Defendants or to a set-off.\n\n D\n\n(b) Rs. 4,535-12~0 as stated by the Plaintiff ?\"\n\nLater, amended pleading's led to amended issues of which issues 4 !o .\n\n6 are meaningful and are set out below. with the findings thereon;\n\n\"4. Whether the Bombay and Khamgaon shops owned by\"\n\nplaintiff's partners are so connected with each other that a composite account of the entries in two shops can be made by the defendants? -Yes\n\n5. (a) Whether a sum of Rs. 44,697 /10 is debited to the defendants in the account of the Bombay shop ?-Yes •\n\n(b) Are these entries proper and correct?\n\n(c) And in time? ,\n\n-Yes. -Yes.\n\n6. Whether mi making an account of the two shops of the plaintiff of Bombay and Khamgaon the defendants are entitled to a set-off and thereafter to a sum of-\n\n(a) Rs. 17,000/- as claimed by the defendants or to G a set off -No.\n\n(b) Rs. 4,535/12/- as stated by the plaintiff ?-Yes.\n\nThe plain fact emerges that the two parties were having dealings with each other, that the dealings in Khamgaon and Bombay were inter-related and not totally different transactions, dissociated in nature and divorced in period. The tri'al judge treated the totality of transactions as a composie account and the suit as one on accounts.· He granted a decree on these telJllS\n\nmaes a refere_nce to s. 531 i~ passing and not for the purpose of assuming jurisdct10n under 1t. If the Magistrate, in this case, had thought of assuming jurisd1cti.on under s. 531._ he would not have proceeded to record the evidence of the\n\npares, on the ques~1on of the territorial jurisdiction, or referred to it at length m his order and arrived at the decision that he had the jurisdiction. [1002 D-G]\n\nPurushottamdas Dalmia v. The State of West Bengal [1962] 2 S.C.R. 101' followed.\n\nRadharani v. Rahim Sardar. A.LR. 1946 Calcutta 459, Sakuntala v. Thiruma/yyQ [1966] 2 M.L.J. 326, Stai!e v. Tavara Naika A.I.R. 1959 Mysore 193, Sultan Chand v. Yoi; indra Nath Baz. A.LR. 1944, Peshawar 25 and Satwanr Singh v. Smt. Jaswant Kaur, [1956] A.L.J. 134, held inapplicable.\n\nIn the instant case, the Magistrate was one of the Magistrates mentioned in s. 488(1 ). He had specifically rejected the respondent's application for confiPJing the evidence to the question of jurisdiction or to try that as a preliminary issue.\n\nIt cannot therefore be said that he had given himself jurisdiction by recourse to s. 531.\n\nThe Magistrate had set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the respondent-all of which led to the conclusion that he had the jurisdictiov to try the application.\n\nThere is therefore no reason why s. 531 should not be held' to be applicable to this case.\n\n[1005F-H]\n\n(d) The High Court erred in holding that s. 531 would not be applicable because the respondent had reserved a right to file a written teply on merits after the question of jurisdiction had been decided.\n\nThe Magistrate had specifically overruled the respondent's objection, and directed the' parties to adduce evidence, and deferred the decision on the question of jurisdiction until after the evidence had been recorded.\n\nThe respondent did not file his reply on the merits.\n\n[10030-H]\n\n( e) The High Court erred in holding that there was failure of justice be-- cause the respondent never led evidence. The Magistrate called upon the parties to lead evidence. While the appellant obeyed the order, the respondent persisted in thinking that the Magistrate had no jurisdiction, refused to examine his witnesses on merits, and chose to confine his evidence to the question of jurisdiction. rt004F-Hl\n\nCIVIL APPELLATE JURISDICTION : Cri•minal Appeal No. 447 of 1974.\n\n(Appeal by Special Leave from the Judgment and Order dated the 14th Mr, rch 1974 of the Delhi High Court in Criminal Revision Petition No. 61 of 1974.\n\nMrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant.\n\nV. C. Mahajan and S. L. Aneja, for respondent.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal by special leave is directed against the judgment of the Delhi Hi•gh Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.\n\nAppellant Raj Kumari Vijh was married to respondent Dev Raf v; jh in Delhi, in June 1950. It is the admitted case of the parties that they were living separately from 1953.\n\nThe appellant filed her\n\n\"--.,,._,.\n\nSMT. RAJ KUMAR! v. DEV RAJ. (Shinghal, J.) 999\n\nfust application for maintenance under section 488 of the CQde, in A 1955, but it was dismissed.\n\nThe respondent filed an applicatio1,1 for .divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh).\n\nIt was ultimately dismissed; on appeal on March 29, 1968.\n\nIn the meantime the appellant filed a suit against the respondent for recovery -of her \"stridhen\" in Delhi in 1956. It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6,458/-.\n\nThe appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a B deserted wife.\n\nNothing came out of i.'t and she filed the present .application under section 488 of the Code in the Court of the Delhi Magistrate on March! 18, 1969. It was stated in the application that the appellant had lived'with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S.\n\nNarela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of C the decree which she had obtained for Rs. 6,458/- on account of her \"stridhan\".\n\nIt was stated in the application that the parties lived at Lampur as husband and wife and there was cohabitation.\n\nThe .appellant prayed for an order allowing her Rs. 450/- per month for maintenance .as the respondent had sufficient means but had neglected -0r refused to maintain her.\n\nThe respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur.\n\nAn objectil)n was . however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata. An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never residecj. permanently or temporari•ly in Delhi.\n\nWe have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed.\n\nThe Magistrate passed an order for production of evidence.\n\nThe respondent thereupon prayed that the question of jurisdiction may be decided before recording the evitlence.\n\nThat was not agreed to by the magistrate.\n\nHe made an order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case.\n\nThe respondent did not challenge that order or apply for permission to file an additional reply.\n\nOn the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellant's witnesses did not even know him.\n\nBoth the parties led their evidence, although it appears that the respondent did not like to avai1 of_ the opportunity which was given to him to lead evidence on the merits.\n\nHe did not even apply for permission; to file any additional reply when the_ Magistrate recorded tthe appellant's evidence on her application for maintenance as a whole.\n\nUltimateiy the Magistrate made his final order on May 21, 1973.\n\nHe took the view that there was no specific denial of the appellant's allegation that the parties last resitled together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968.\n\nHe took notice of the fact that the plea of bar against the maintainability of the second applitation because of the dismissal of tthe first application.' was. not pessed ?Y the respondent and after referring to the entire evidence m details, he reached the conclusion that he had the jurisdiction to entertain the application, and granted maintenance allowance at the rate of Rs. 125/- per month, with effect'from\n\nMarch 18, 1969, along with an order regarding the mode of payment of the arrears. The respondent applied for a revison of that order, and the Additional Sessions Judge referred thei case, to the High Court on November 30, 1973, for dismissal of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had n0\n\njurisdiction to entertain it.\n\nAs the High Court has allowed the reference, and dismissed the revision application which was filed by\n\nthe appellant for an increase in the maintenance allowance, the appellant has come up to this Court by special leave.\n\nIn its impugned judgment dated March 14, 1974, the High Court has recorded the finding that the parties did not reside together. at village Lampur, and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant's application under section 488 of the Code.\n\nCounsel for the appellant has vehemently urged that the finding of the, High Court is incorrect, but as it is a finding of fact, we shall proceed pn the assumption that it does not call for, interference in this appeal. The question however remains whether section 531 of the Code would be applicable to the case?\n\nThe High Court has held that the section would not De applicable, and that is why it has passed the impugned order for the dismissal of the, application of the appellant under section 488 of the Code.\n\nThe High Court has taken that view for the following reasons,-\n\n(i)\n\n(iii)\n\n(iii)\n\n(iv)\n\n(v)\n\nThe objection as to juri'sdiction was raised \"right at the \\ first instance by the husband\".\n\nThe respondent \"specifically reserved his right to file a written reply on merits after the question of jurisdiction was decided\".\n\nAs the respondent had \"reserved hils right to lead evidence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on\n\nmerit~ ..... \"\n\nThere was \"obvious prejudice and failure of justice\" to the respondent as he never led evidence on the merits.\n\nIt was necessary for the appellant to prove that the respondent had refused and neglected to maintain her, and that \"obviously requires an opportunity to. be given to the husband to provo his case, if it be one, that ho has not refused or refuses or neglected to maintain his wife or what his income and means is\".\n\nSMT. RAJ KUMARI v. DEV RAJ (Shinghal, J.) 1001\n\n(vi)\n\n(vii)\n\n\"Before a deci'sion on meriti can be given the husband\n\nha:s the undoubted request (sic) to lead evidence on merits\". ·\n\nA proceeding cannot be entertained in a court w?ich has jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against\n\nits maintain; bility-, for otherwise the provision relating to jurisdiction would become nugatory. Section 531 \"can cure the infirmity after, the case has been fought on\n\nmerits.\" '\n\n-., We have examined these grounds, but we are constrained to say that they are no~ tenable in the facts and ciJt:umstances of this case.\n\nSection 531 of the Code reads an follows,-\n\n\"531. No finding, llentence or order of any Crimnal Court shall be set aside merely . on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-di!vision or other local area, unless it appears that such error has in fact occasioned a failure of justice.\"\n\nThe section therefore relates to a defect of jurisdiction.\n\nAs has been stated by this Court in Purushottamdas Dalmia v. The State of West Benga/C) those are two types; of jurisdittion of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try, particular kinds of offences, and (2) its territorial jurisdiction.\n\nWhile the former goes to the root of the matter and any transgression of it makes the entirej trial voitl, the latter is not of a peremptory character and is curable under section 531 of the Code.\n\nTerritorial jurisdiction is provided \"just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear !lefore the Court\". Sub-section (8) of section 488 in fact provides that proceedings under the section \"may be takeDJ against any person in any distritt where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.\" This therefore is ordinarily th6 requirement ae to the filing of an application under sectitm 488 within the limits of the jurisdittion of the magistrate concerned.\n\nSo where a magistrate has the \"power\" to try a particular application under section 48 8, and the controversy relates solely to his\n\nerritorial jurisdiction, there should, ordinarily, be no reason why section 531 of the Code should not be applicable to the order made by him. It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531.\n\n(!) [1962] 2 SCR. 101.\n\nThe, first reason why the High Court has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent \"right at the first instance.\" Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the impression that section 531 of the Code, would, at any rate, validate his order.\n\nThat, according to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of sectiton 531.\n\nReliance in this connection has been placed on Radharani v. Rahim Sardar('), Sakuntala v. Thirumalayya(2), State v. Tavara Naika( 3), Sultan Chand v. Yogindra Nath Baz (4), and Satwant Singh v. Smt. jaswant Kaur (\").\n\nAs is apparent, section 531 does not enti_tle a magistrate, who is not a magistrate of the class referred to in sub-section (1) of section 488, to proceed with an application for maintenance.\n\nIn , fact even a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class will not .Pe entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8) of section 488.\n\nThe true meaning of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a magistrate, wqo is otherwise duly empowered to make an order under sub-section ( l) of section 488 of the Code, cannot proceed with an application under that sub- section for the purpose of deciding whether he has the territorial juri;.>diction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction.\n\nSection 53 l cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the praceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the proceding, and the magistrate finds i1t necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. In other words, there is no reason why, in such a ca£e, section 531 should not be applicable merely because\n\nthe magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference) to section 531 in passing and not for the purpose of assuming jurisdiction under it. If the magistrate, in this case, had thought of assuming jurisdiction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at le11gth in his order and arrived at the decision that he had the jurisdiction.\n\nWe have gone through the cases which have been cited by the counsel for the respondent.\n\nRadharani and another v. Rahim Sardar (supra) was a case where the magistrate proceeded with the trial\n\n(1) A.T.R. 1946 Calcutta 459.\n\n(2) (1966) 2 M.L.J. 326. $3) A.LR. 1959 Mysore 193.\n\n(4) A.I.R. 1944 Peshawar 25.\n\n(5) (1956) A.L.J. 134.\n\nSMT. RAJ KUMARI v. DEV RAJ (Shinglzal, !.) .1003\n\nin the wrong local area with his eyes open to the fact ihat he. !rad no. territorial jurisdiction, and, the Calcutta High Court bad to observe that the section does not confer any jurisdiction.\n\nThis is however not su in the present case, because the Magistrate recorded the evidence on the question of territorial jQrisdiction, and he went to the extent of making •a reference to the entire evidence which was led on the point.\n\nMoreover he took note of the fact that the respondent had not specifically dened that he lived at village Lampur with the appellant. . This is therefore not a case where the Magistrate proceeded with the application even though. he had the knowledge that it did not fall within his jurisdiction.\n\nThe same is the position in regard to Sakunta/a v. T/zirumalayya ·(supra) and it also cannot avail the respondent. We have gone through State v .. Tavara Naika (supra).\n\nJt was not a case under section 488 of the Code.\n\nWhat has been said there is that the curative provisions of section 53 l should not be an excuse for overlooking a material irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial. It does not therefore lay down anything different from what lras been stated in Radlzarani v. Rahim Sardar (supra). It was a case where the accused .was committed to a wrong sessions division, and the mistake was corrected .because the trial had not commenced.\n\nSultan Chand & another v. Yogindra Nath Baz\n\n(supra) was also not a case under section ~88 of.the Code .. Hhas been held in that case that when the'qucstion\"of jurisdiction.has been raised before the trial magistrate, it is his duty to determine the point,· otherwise the provisions •as regards jurisdiction wuld . never : be enforced and that section 531 cannot be applied to such a case.\n\nAs has been stat.ed, the Magistrate in. the present case addressed. himself to the question of jurisdiction, recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the application was maintainable in his court. : -This -is' therefore a different case.\n\nSatwant Singh v. Smt. Jaswant Kaur (supra) wa> a case under section 488 of the Code. . It has been held , there. that where the question of jurisdiction had : been raised .before the trial magistrate, it was his duty to de.termine the point, and that he cannot proceed .. with the trial in a wrong local area with his. eyes open to the fact that he has no territorial jurisdiction. As has been shown, this was not so in the present case ... It' would thus appear that the High Court erred in taking.the view that section 531 would not be applicable to this case merely because an objection as to jurisdic- tion was raised by the respondent \"right at the first. instance.\" .\n\nThe second ground mentioned by the High .Court is that section 531 would not be. applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decided. We find that_ this .is clearly a misstatement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved. any such right to file a written reply on the merits at a later: stage, after the question of jurisdiction was decided against him.\n\nOn. the other !rand; we find . that the Magistrate specifically overruled th.e objection of the respondent, und made an order directing the parties to adduce' their evidence on the whole case and specifically rcjectcdt l 6-206SCI /77\n\nthe respondent's application for deciding the question of jurisdiction in the first instance.\n\nThe Magistrate has clearly stated that an order was made by him for the production of evidence 'in the case\", aud\n\ntha~ he decided o defer a decision of the question of jurisdiction until after. the evidence had been recorded as a whole.\n\nThe Magistrate has further stated that the respondent did not file his further or additional reply even then.\n\nThe High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on.\n\nAs has been shown, no such reservation was permitted by the 1wagistrate, and counsel for the respondent was not able to show how the respondent could unilaterally make such a .reservation for himself.\n\nIt may be that. in a given case, it may be advisable. for a magistrate to confine the evidence of the parties, in the first instance, to any .preliminary objettion .--\" relating to jurisdiction, and to decide the controversy on the merits thereafter, but as this was not so in the present case, we are unable to find any justification for the second ground mentioned by the High Court.\n\nThe third ground of the High Court is also untenable. for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not delibei•ately give up that right.\n\nHerc again, counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a prelimir, ary question :rnd had passed an order for the production of all the evidence in the case. If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that h~ had\n\nreservd the right to lead evidence at a later stage.\n\nThe High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits.\n\nBut the High Court failed to appreciate that the respondent had to thank himself for that pre- ' diC'ament.\n\nHe knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect.\n\nHe also knew that the Magistrate had called upon the parties to lead all their evidence.\n\nThe appellant obeyed that order and ex•amined her witnesses.\n\nThe respondent persisted in thinking that the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it sufftcient to confine his evidence to the question of jurisdiction.\n\nSo if he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice.\n\nAs it is, Counsel for the respondent has not been able to refer to any application of the respondent. whether oral or documentary, expressing a desire to lead his evidence on the merits.\n\nThe fact of the matter therefore is that the respondent had decided that he would not lead anv evidence on the merits, and confined his evidence to the question of jurisdiction. It may be that, as\n\nSMT. RAJ KUMAR! v. DEV RAJ (Shinglwl, !.) 1005\n\nhas been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.\n\nThe fifth ground mentioned by the High Court is that before an order could be passed under. section 48 8 (I ) it was necessary to\n\nprove that the husband had refused or neglected to maintain his wife, B and that required an opportunity to be given to the husband lo prove his ase. But the argument is futile because the respondent did not set up any defence on the merits.\n\nOn the other ha11d, the Magistrate found that there was no controversy about the facts that the appellant was the h\\wfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to C maintain her.\n\nIn its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits.\n\nIt would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magis- D tratc.\n\nLastly, ths High Court has taken the view that a proceeding cannot be ma'intained .by a court which has no jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction would become nugatory.\n\nThis point has already E been considered earlier and need not be re-examined.\n\nIt is thus quite clear that the High Court committed a serious error of law in refusing to invoke section 531 in the facts and circumstances of this case~ It is not in controversy that the Magistrate who took the proceedings, on the appellan, t's application under subsection (l) of section 488, was one of the magistrates mentioned in F that sub-section.\n\nThe respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to load all their evidence.\n\nHe specifirnlly rejected the application for confining the evidence to the question of jurisdiction, or to try that as a preliminary issue.\n\nIt is therefore futile to contend that the Magistrate gave himself jurisdictil)n by recourse to section 531 of the Code.\n\nOn the other hand in his final order, he set out the points which arose for G consideration on the question of jurisdiction, made a mention, at length, of the entire evidence on that question and took into consideration the conc; Iuct of the respondent and the case law as well as the respondent's reply.\n\nAll that led him to the conclusion that he had jurisdiction to try the application.\n\nThere is therefore no reason why section 531 should not be held to be applicable to this case.\n\nAs has been shown, it is futile for Counsel for the respondent to H raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lend his evidence on the merits. As we have pointed out, he did so deliberately and in\n\ndefiance of the order of the Magistrate calling upon him to lead his evidence on the whole case.\n\nThe respondent cannot in fact be heard to raise the question of prejudiee when on the uncontroverlcd and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and made an order that he shall make a monthly allowance of Rs. 125 /- per mensem for her maintenance.\n\nThe appeal is allowed and the impugned order of the High Court dated March 14, 197 4, is set aside, with costs.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 118, "entities": [{"text": "ONKAR NATH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "ONKAR NATH & ORS", "offset_not_found": false}}, {"text": "THE DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 19, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "THE DELHI ADMINISTRATION", "offset_not_found": false}}, {"text": "February 15, 1977", "label": "DATE", "start_char": 45, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "THE DELHI ADMINISTRATION\n\nFebruary 15, 1977\n\n[Y. v. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.J\n\nDefence of lndia Rules 1971-Rule 118(1 )(a) r/w Notification dated 26-11-1973 prhibiting a strike \"in connection with any industrial dispute\", ingredients of-Legal evidence must Tfr led to prove the ingredients of an offence."}}, {"text": "Y. v. CHANDRACHUD", "label": "JUDGE", "start_char": 65, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 84, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Defence of lndia Rules 1971", "label": "STATUTE", "start_char": 124, "end_char": 151, "source": "regex", "metadata": {}}, {"text": "May\n\n8, 197", "label": "DATE", "start_char": 505, "end_char": 516, "source": "ner", "metadata": {"in_sentence": "~ Judicial notice-Whether the courts can take judicial notice of facts namely \"a railway strike was imminent\" dnd such a strike was, in fact, launched on May\n\n8, 197 4 \"in a trial for an offence of \"exciting workmen 'to go on strike\" - C Section 46 and 57 of the Evidence Act (Act 1 of 1872), 1872."}}, {"text": "Section 46 and 57", "label": "PROVISION", "start_char": 589, "end_char": 606, "source": "regex", "metadata": {"linked_statute_text": "Defence of lndia Rules 1971", "statute": "Defence of lndia Rules 1971"}}, {"text": "May 5, 1974", "label": "DATE", "start_char": 692, "end_char": 703, "source": "ner", "metadata": {"in_sentence": "In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tugblakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment."}}, {"text": "Tugblakabad", "label": "GPE", "start_char": 726, "end_char": 737, "source": "ner", "metadata": {"in_sentence": "In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tugblakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment."}}, {"text": "May 8, 1974", "label": "DATE", "start_char": 797, "end_char": 808, "source": "ner", "metadata": {"in_sentence": "In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tugblakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment."}}, {"text": "Union were convicted by the learned Metropolitan Magistrate under Rule", "label": "STATUTE", "start_char": 871, "end_char": 941, "source": "regex", "metadata": {}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 1123, "end_char": 1139, "source": "ner", "metadata": {"in_sentence": "The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction reduced the D sentence to the period already undergone."}}, {"text": "Defence of India Rules, 1971", "label": "STATUTE", "start_char": 1813, "end_char": 1841, "source": "regex", "metadata": {}}, {"text": "May 5. 1974", "label": "DATE", "start_char": 2013, "end_char": 2024, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal by special leave, the court,\n\nHELD : (1) The courts below were justified in assuming withrut formal evidence that the railway strike was imminent on May 5."}}, {"text": "s. 57", "label": "PROVISION", "start_char": 2178, "end_char": 2183, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1971", "statute": "the Defence of India Rules, 1971"}}, {"text": "Defence of H India Rules, 1971", "label": "STATUTE", "start_char": 3306, "end_char": 3336, "source": "regex", "metadata": {}}, {"text": "Government of India under Rule", "label": "STATUTE", "start_char": 3685, "end_char": 3715, "source": "regex", "metadata": {}}, {"text": "26-11-1973", "label": "DATE", "start_char": 5570, "end_char": 5580, "source": "ner", "metadata": {"in_sentence": "[995H, 996A-BJ\n\nfln view of the finding that the evidence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought\n\nit unnecessary to consider the question whether the conduct attributed to _the appellants fall within the mischief of the order dated 26-11-1973, since inciting other workers to go on strike may be outside the definition of the words \"strike\" contained in Rule 118(3 )(b) of the Defence of India Rules, 1971.\""}}, {"text": "Defence of India Rules, 1971", "label": "STATUTE", "start_char": 5715, "end_char": 5743, "source": "regex", "metadata": {}}, {"text": "A. K. Gupta", "label": "LAWYER", "start_char": 6159, "end_char": 6170, "source": "ner", "metadata": {"in_sentence": "A. K. Gupta, for the appellants."}}, {"text": "G. Das", "label": "LAWYER", "start_char": 6193, "end_char": 6199, "source": "ner", "metadata": {"in_sentence": "G. Das, and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6205, "end_char": 6219, "source": "ner", "metadata": {"in_sentence": "G. Das, and R. N. Sachthey, for the respondent."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 6286, "end_char": 6297, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was deliverCd by\n\nCHANDRACHUD, J.-The appellants who are Railway employees, were convicted by the learned Metropolitan Magistrate, Delhi nnder rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months' rigorous imprisonment.", "canonical_name": "CHANDRACHUD"}}, {"text": "Defence of India Rules, 1971", "label": "STATUTE", "start_char": 6436, "end_char": 6464, "source": "regex", "metadata": {}}, {"text": "Defence of India Rules, 1971", "label": "STATUTE", "start_char": 7251, "end_char": 7279, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 7381, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "Avoidance of strikes and lock-outs.-(1) If in the opinion of the Central Government or the State qovcrnment it is necessary or expedient so to do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to any undertaking or class of undertakings, make provision-\n\n( a) for prohibiting, subject to the provisions of the order, a strike or lock-out in connection with any industrial dispute;\n\n(b) for requiring employers; workmen, or both, to D observe for such period as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order :\n\nProvided that no orcler made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to the workmen than those E which were applicable to them at any time within three months preceding the date of the order.\""}}, {"text": "November 26, 1973", "label": "DATE", "start_char": 8817, "end_char": 8834, "source": "ner", "metadata": {"in_sentence": "The order issueq under rule 118 ( 1) (b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of\n\nthe c0mmunity to prevent strikes 'in the Railway Services and that therefore \"the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of s'ix months w.e.f."}}, {"text": "India", "label": "GPE", "start_char": 9194, "end_char": 9199, "source": "ner", "metadata": {"in_sentence": "The order issueq under rule 118 ( 1) (b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of\n\nthe c0mmunity to prevent strikes 'in the Railway Services and that therefore \"the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of s'ix months w.e.f."}}, {"text": "26th November,\n\n1973", "label": "DATE", "start_char": 9239, "end_char": 9259, "source": "ner", "metadata": {"in_sentence": "the 26th November,\n\n1973.\" ."}}, {"text": "S. D. Sharma", "label": "WITNESS", "start_char": 9336, "end_char": 9348, "source": "ner", "metadata": {"in_sentence": "In support of its case the prosecution examined three witnesses called S. D. Sharma, Dilbagh Rai and Jasbir Singh."}}, {"text": "Dilbagh Rai", "label": "WITNESS", "start_char": 9350, "end_char": 9361, "source": "ner", "metadata": {"in_sentence": "In support of its case the prosecution examined three witnesses called S. D. Sharma, Dilbagh Rai and Jasbir Singh."}}, {"text": "Jasbir Singh", "label": "WITNESS", "start_char": 9366, "end_char": 9378, "source": "ner", "metadata": {"in_sentence": "In support of its case the prosecution examined three witnesses called S. D. Sharma, Dilbagh Rai and Jasbir Singh."}}, {"text": "Sharma", "label": "WITNESS", "start_char": 9381, "end_char": 9387, "source": "ner", "metadata": {"in_sentence": "Sharma's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him."}}, {"text": "Tughlakabad", "label": "GPE", "start_char": 9823, "end_char": 9834, "source": "ner", "metadata": {"in_sentence": "The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Sration and wa& entrusted with the investigation of the case."}}, {"text": "Jasbir Singh", "label": "RESPONDENT", "start_char": 10000, "end_char": 10012, "source": "ner", "metadata": {"in_sentence": "Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad!", "canonical_name": "Jasbir Singh"}}, {"text": "Defence of India Rules, 1971", "label": "STATUTE", "start_char": 10294, "end_char": 10322, "source": "regex", "metadata": {}}, {"text": "Jabir Singh", "label": "RESPONDENT", "start_char": 10437, "end_char": 10448, "source": "ner", "metadata": {"in_sentence": "Jabir Singh claims to have attended a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meeting.", "canonical_name": "Jasbir Singh"}}, {"text": "Jasbir Singh", "label": "RESPONDENT", "start_char": 11014, "end_char": 11026, "source": "ner", "metadata": {"in_sentence": "In view of the total absence of evidence showing what the1 appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction.", "canonical_name": "Jasbir Singh"}}, {"text": "Section 57", "label": "PROVISION", "start_char": 12080, "end_char": 12090, "source": "regex", "metadata": {"statute": null}}, {"text": "section 57", "label": "PROVISION", "start_char": 12345, "end_char": 12355, "source": "regex", "metadata": {"statute": null}}, {"text": "sec 2571", "label": "PROVISION", "start_char": 12892, "end_char": 12900, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Code", "label": "STATUTE", "start_char": 12973, "end_char": 12984, "source": "regex", "metadata": {}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 13064, "end_char": 13075, "source": "ner", "metadata": {"in_sentence": "Chandrachud, J.) 995\n\nexistence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless andl wasteful ritual.", "canonical_name": "CHANDRACHUD"}}, {"text": "haveno doubt that the Government possesses the power to issue an appropriate order under Rule", "label": "STATUTE", "start_char": 14454, "end_char": 14547, "source": "regex", "metadata": {}}, {"text": "Delhi Administration", "label": "ORG", "start_char": 16313, "end_char": 16333, "source": "ner", "metadata": {"in_sentence": "It is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what i~ contemplated by rule 118 (I) (a) itself is a strike in connection wit Ii\n\nD '\n\nearly stage might well have sorted out the dispute, be1ter_ed their relations and pre-empted this cock-fight."}}, {"text": "Suwalal", "label": "RESPONDENT", "start_char": 18755, "end_char": 18762, "source": "ner", "metadata": {"in_sentence": "At an intermediate stage of the many iI)volved interlocutory skirmishes, the plaintiff did allege : ] ,:-- '\n\n\"The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop."}}, {"text": "Khamgaon", "label": "GPE", "start_char": 19565, "end_char": 19573, "source": "ner", "metadata": {"in_sentence": "Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay."}}, {"text": "Bombay", "label": "GPE", "start_char": 19578, "end_char": 19584, "source": "ner", "metadata": {"in_sentence": "Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay."}}, {"text": "Phadke", "label": "OTHER_PERSON", "start_char": 20153, "end_char": 20159, "source": "ner", "metadata": {"in_sentence": "We may\n\nmention the relevant issues framed at the first round even here since we 'may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant."}}, {"text": "s. 531", "label": "PROVISION", "start_char": 21905, "end_char": 21911, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 531", "label": "PROVISION", "start_char": 22058, "end_char": 22064, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962] 2 S.C.R. 101", "label": "CASE_CITATION", "start_char": 22342, "end_char": 22361, "source": "regex", "metadata": {}}, {"text": "s. 488(1 )", "label": "PROVISION", "start_char": 22735, "end_char": 22745, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 531", "label": "PROVISION", "start_char": 22987, "end_char": 22993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 531", "label": "PROVISION", "start_char": 23274, "end_char": 23280, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 531", "label": "PROVISION", "start_char": 23385, "end_char": 23391, "source": "regex", "metadata": {"statute": null}}, {"text": "Urmila Kapoor", "label": "LAWYER", "start_char": 24467, "end_char": 24480, "source": "ner", "metadata": {"in_sentence": "Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant."}}, {"text": "Kamlesh Bansal", "label": "LAWYER", "start_char": 24490, "end_char": 24504, "source": "ner", "metadata": {"in_sentence": "Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant."}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 24525, "end_char": 24538, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and S. L. Aneja, for respondent."}}, {"text": "S. L. Aneja", "label": "LAWYER", "start_char": 24543, "end_char": 24554, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and S. L. Aneja, for respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 24617, "end_char": 24625, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal by special leave is directed against the judgment of the Delhi Hi•gh Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code."}}, {"text": "Dev Raj Vijh", "label": "RESPONDENT", "start_char": 24787, "end_char": 24799, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal by special leave is directed against the judgment of the Delhi Hi•gh Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code."}}, {"text": "section 488", "label": "PROVISION", "start_char": 24871, "end_char": 24882, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 24890, "end_char": 24922, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Raj Kumari Vijh", "label": "PETITIONER", "start_char": 24972, "end_char": 24987, "source": "ner", "metadata": {"in_sentence": "Appellant Raj Kumari Vijh was married to respondent Dev Raf v; jh in Delhi, in June 1950."}}, {"text": "section 488", "label": "PROVISION", "start_char": 25260, "end_char": 25271, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Aligarh", "label": "GPE", "start_char": 25406, "end_char": 25413, "source": "ner", "metadata": {"in_sentence": "The respondent filed an applicatio1,1 for .divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh)."}}, {"text": "section 488", "label": "PROVISION", "start_char": 25861, "end_char": 25872, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "March! 18, 1969", "label": "DATE", "start_char": 25925, "end_char": 25940, "source": "ner", "metadata": {"in_sentence": "Nothing came out of i.'t and she filed the present .application under section 488 of the Code in the Court of the Delhi Magistrate on March!"}}, {"text": "Delhi", "label": "GPE", "start_char": 26027, "end_char": 26032, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the appellant had lived'with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S.\n\nNarela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of C the decree which she had obtained for Rs."}}, {"text": "Lampur", "label": "GPE", "start_char": 26099, "end_char": 26105, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the appellant had lived'with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S.\n\nNarela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of C the decree which she had obtained for Rs."}}, {"text": "April 29, 1969", "label": "DATE", "start_char": 26648, "end_char": 26662, "source": "ner", "metadata": {"in_sentence": "The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur."}}, {"text": "February 2, 1956", "label": "DATE", "start_char": 26881, "end_char": 26897, "source": "ner", "metadata": {"in_sentence": "however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata."}}, {"text": "November 19, 1969", "label": "DATE", "start_char": 27509, "end_char": 27526, "source": "ner", "metadata": {"in_sentence": "He made an order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case."}}, {"text": "May 21, 1973", "label": "DATE", "start_char": 28278, "end_char": 28290, "source": "ner", "metadata": {"in_sentence": "Ultimateiy the Magistrate made his final order on May 21, 1973."}}, {"text": "March 18, 1969", "label": "DATE", "start_char": 28919, "end_char": 28933, "source": "ner", "metadata": {"in_sentence": "125/- per month, with effect'from\n\nMarch 18, 1969, along with an order regarding the mode of payment of the arrears."}}, {"text": "November 30, 1973", "label": "DATE", "start_char": 29128, "end_char": 29145, "source": "ner", "metadata": {"in_sentence": "The respondent applied for a revison of that order, and the Additional Sessions Judge referred thei case, to the High Court on November 30, 1973, for dismissal of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had n0\n\njurisdiction to entertain it."}}, {"text": "section 488", "label": "PROVISION", "start_char": 29187, "end_char": 29198, "source": "regex", "metadata": {"statute": null}}, {"text": "March 14, 1974", "label": "DATE", "start_char": 29545, "end_char": 29559, "source": "ner", "metadata": {"in_sentence": "In its impugned judgment dated March 14, 1974, the High Court has recorded the finding that the parties did not reside together."}}, {"text": "section 488", "label": "PROVISION", "start_char": 29787, "end_char": 29798, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 30070, "end_char": 30081, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 30304, "end_char": 30315, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 31532, "end_char": 31543, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 531", "label": "PROVISION", "start_char": 31697, "end_char": 31708, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 531", "label": "PROVISION", "start_char": 31920, "end_char": 31931, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 32850, "end_char": 32861, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 33224, "end_char": 33235, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 33706, "end_char": 33716, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 33831, "end_char": 33842, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 34070, "end_char": 34081, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962] 2 SCR. 101", "label": "CASE_CITATION", "start_char": 34088, "end_char": 34105, "source": "regex", "metadata": {}}, {"text": "section 531", "label": "PROVISION", "start_char": 34174, "end_char": 34185, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 34552, "end_char": 34563, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 34986, "end_char": 34997, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 35101, "end_char": 35112, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 35416, "end_char": 35427, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 35450, "end_char": 35461, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 35776, "end_char": 35787, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 53", "label": "PROVISION", "start_char": 36062, "end_char": 36072, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 36546, "end_char": 36557, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 36706, "end_char": 36717, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 36864, "end_char": 36875, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 37583, "end_char": 37602, "source": "ner", "metadata": {"in_sentence": "territorial jurisdiction, and, the Calcutta High Court bad to observe that the section does not confer any jurisdiction."}}, {"text": "section 488", "label": "PROVISION", "start_char": 38396, "end_char": 38407, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 38482, "end_char": 38492, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 39276, "end_char": 39287, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 39684, "end_char": 39695, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 40137, "end_char": 40148, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 40354, "end_char": 40365, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 42354, "end_char": 42365, "source": "regex", "metadata": {"statute": null}}, {"text": "section 48", "label": "PROVISION", "start_char": 44819, "end_char": 44829, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 45911, "end_char": 45922, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 46247, "end_char": 46258, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 46432, "end_char": 46443, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 46877, "end_char": 46888, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 47327, "end_char": 47338, "source": "regex", "metadata": {"statute": null}}, {"text": "March 14, 197 4", "label": "DATE", "start_char": 48175, "end_char": 48190, "source": "ner", "metadata": {"in_sentence": "The appeal is allowed and the impugned order of the High Court dated March 14, 197 4, is set aside, with costs."}}]}
{"document_id": "1977_2_997_1006_EN", "year": 1977, "text": "é i\n\nRA] KUMARI VIJH\n\nDEV RAJ VIJH\n\nFebruary 15, 1977\n\n[P. N. BHAGWATI, A. C. GUPTA AND P. N. SHINGHAL, JJ.]\n\nCode of Criminal Procedure. 1898---Ss. 488 and 531-Scope of.\n\nSection 531 of the Criminal Procedure Code, 1898 provides that no finding, sentence or order of any criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, snb-division or (éth'ertlocal\n\narea, unless it appears that such error has in fact occasioned a failure 0 1115 we.\n\nIn her claim for maintenance from the respondent, who was her husband, the appellant filed a petition under s. 488 Cr.P.C. in the Court of a Magistrate. The respondent took objection to the Court's jurisdiction to try the case on the ground that the parties did not reside within its jurisdiction.\n\nThe Magistrate passed an order. that the dec1sion on the question of jurisdiction must await the recording of eVidence on the whole case.\n\nThe respondent did not challenge that order.\n\nUltimately the Magistrate held that he had the jurisdiction to entertain the application and decided it on the merits.\n\nThe Sessions Judge referred the respondent's revision application to the High Court.\n\nThe High Court he'fd that by taking recourse to s. 531, proceedings could not be entertained in a Court which had no jurisdiction-anew so when an objection had been taken against its maintainability-and that s. 531-could cure the infirmity only if the case had been fought on merits.\n\nAllowing the appeal,\n\nHELD: The High Court' erred in taking the View that s. 531 would not be applicable to this case merely because the objection as to the jurisdiction was raised by the respondent right at the first instance.\n\n[1003 F]\n\nl. (a) Territorial jurisdiction is provided as a matter of convenience for the Court, the accused and the witnesses.\n\nUnder s. 488(8) a proceeding may be taken against any person in any district where he resides or is or where he last resided with his wife.\n\n[1001 F-G]\n\n(b) Where a Magistrate has the power to try a particular application under s. 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why 5. 531 should not be applicable to the order made by him.\n\n[1001 H]\n\n(c) The true meaning of s. 531 is that while it will not uphold an order passed in proceedings wilfiilly taken in a wrong place, or enable a Magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a Magistrate, who is otherwise duly empowered to make an order under s. 488(1), cannot proceed with an application under that sub- section for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction.\n\nSection 531 cannot be said to be inapplicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead eVidence in support of their respective contentions about the correct place of the proceeding, and the~ Magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities.\n\nThere is no reason why, in'such a case, s. 531 should not be applicable merely because the Magistrate, while considering the evidence relating to jurisdiction, unWittingly\n\nrnakes a reference to s. 531 in passing and not for the purpose of assuming juris- diction under it.\n\nIf the Magistrate, in this case, had thought of assuming juris- diction under s. 531,_he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length 111 his order and arrived at the decision that he had the jurisdiction. [1002 D-G]\n\nPurushottamdas Da/miu v.\n\nThe State of West Bengal [1962]\n\n2 S.C.R. 101 followed.\n\nRad/tarani\n\nv. Ra/lim Sarah/r.\n\nA.I.R. 1946 Calcutta 459.\n\nSaktlnz'ala v.\n\nThim- malyya [1966]\n\n2 M.L.J.\n\n326. Slate V. Tamra Naika A.I.R. 1959 Mysore 193.\n\nSultan Clland V.\n\nYogindra Natl: Baz. A.I.R. 1944, Peshawar 25 and Satwam Sing/1 v. sz'. Jarwanr Kaur, [1956] A.L.J. 134, held inapplicable.\n\nIn the instant case, the Magistrate was one of the Magistrates mentioned in s. 488(1).\n\nHe had specifically rejected the respondent's application for confining the evidence to the question of jurisdiction or to try that as a preliminary issue.\n\nIt cannot therefore be said that he had given himself jurisdiction by recourse to\n\ns. 531.\n\nThe Magistrate had set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the respondent-4111 of which led to the conclusion that he had the jurisdiction to trv the application.\n\nThere is therefore no reason why 3. 531 should not be held to be applicable to this case.\n\n[1005F-H]\n\n(d) The High Court erred in holding that s. 531 would not be applicable because the respondent had reserved a right to file a written reply on merits after the question of jurisdiction had been decided.\n\nThe Magistrate had specifically overruled the respondent's objection, and directed the' parties to adduce evidence. and deferred the decision on the question of jurisdiction until after the evidence had been recorded.\n\nThe respondent did not file his reply on the merits. [lOOSG-H]\n\n(e) The High Court erred in holding that there was failure of justice because the respondent never led evidence.\n\nThe Magistrate called upon the parties to lead evidence.\n\nWhile the appellant obeyed the order, the respondent persisted in thinking that the Magistrate had no jurisdiction, refused to examine his wit- nesses on merits, and chose to confine his evidence to the question of jurisdiction. [1004F-Hl\n\nCIVIL\n\nAPPELLATE\n\nJURISDICTION : Criminal Appeal No. 447 of 1.974. . .\n\n(Appeal by Special Leave from the Judgment and Order dated the 14th March 1974 of the Delhi High Court in Criminal Revision Petition No. 61 of 1974.\n\nMrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant.\n\nC. Mahajan and S. L. Anéja, for respondent.\n\n\" The Judgment of the Court was delivered by\n\nSHINGHAL, \"Jr-This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14. 1974, allowing the revision application of respondent Dev Raj Viih and dis- missing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.\n\n. Appellant Raj Kumari Vijh was married to respondent Dev Raj Vrjh in Delhi, in June 1950.\n\nIt is the admitted case of the parties that they were living separately from 1953.\n\nThe appellant filed her\n\nan.\n\n\"W\"mfiwu-m.\n\n\"--..,.__\n\ngsmr. RAJ KUMARI v. DEV RAJ (Siting/ml, J.) 999\n\nfirst application for maintenance under section 488 of the Code, in 1955, but it was dismissed.\n\nThe respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh).\n\nIt was ultimately dismissed} on appeal on March 29, 1968.\n\nIn the meantime the appellant filed a suit against the respondent for recovery of her \"st-ridhen\" in Delhi in 1956.\n\nIt was decreed on appeal by the Delhi, High Court in_1967, for Rs. 6,458 /'-.\n\nThe appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife.\n\nNothing came out of it and she filed the present ,.application_under section 48-8 of the Code in the Court of the Delhi Magistrate on March 18, 1969.\n\nIt was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at Village Lampur, P. S.\n\nNarela, Delhi, towards the endof December 1968, because the res- pondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs. 6,458 /- on account of her \"stridhan\".\n\nIt was stated in the application that the parties lived at Lamlpur as husband and wife and there was cohabitation.\n\nThe appellant prayed for an order allowing her Rs. 450/- per month for maintenance as the respondent had sufficient means but had neglected or refused to maintain her.\n\nThe respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur.\n\nAn objection was however taken that as the earlier application was dismissed on Feb- ruary 2, 1956, the second application was barred on the principle of res judicata. An objection was taken to the jurisdiction of the Delhi Court onthe ground. that the respondent never resided permanently or temporarily in Delhi.\n\nWe have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed.\n\nThe Magistrate passed an order for production of evidence.\n\nThe respondent thereupon prayed that the question of jurisdiction may be decided before recording the evi- denge.\n\nThat was not agreed to by the magistrate.\n\nHe made an order on November 19, 1969 that. the question of jurisdiction must await the recording of the evidence on the whole case.\n\nThe res- pondent did not challenge that order or apply for permission to file an additional reply.\n\nOn the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellant's witnesses did not even know him.\n\nBoth the parties led their evidence, although it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits.\n\nHe did not even apply for permission to file any additional reply when theMagistrate recorded tthe appellant's evidence on her' application for maintenance as a whole.\n\nUltimately the Magistrate made his final order on May 21, 1973.\n\nHe took the View that there was no specific denial of the appellant's allegation that the parties last resided together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968.\n\nHe took notice of the fact that the plea of bar against the maintain- ability of the second application because of the dismissal of the first application, was not pressed by the respondent and after referring to the entire evidence in details, he reached the conclusion that he had the jurisdiction to entertain the application, and granted main- tenance allowance at the rate of Rs. 125/- per menth, with effect from March 18, 1969, along with an order regarding the mode of payment of the arrears.\n\nThe respondent applied for a revision of that order, and the Additional Sessions Judge referred the case to the High Court\n\non November 30, 1973, for dismissal, of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had no jurisdiction to entertain it.\n\nAs the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the maintenance allowance, the appellant has come up to this Court by special leave.\n\nIn its impugned judgment dated March 14, 1974, the High Court has \"recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the View that the Delhi Court had no jurisdiction to entertain the appellant's application under section 488 of the Code.\n\nCounsel for the appellant has vehemently urged that the finding of the, High Court is incorrect, but\n\nas it is a finding of fact, we shall proceed on the assumption that it does not call fort interference in this appeal.\n\nThe question however remains whether section 531 of the Code would be applicable to the case?\n\nThe High Court has held that the section would not\n\nbe applicable, and that is why it has passed the impugned order for the dismissal of the application of the appellant under section 488 of the Code.\n\nThe High Court has taken that view for the following reasons,-\n\n(i) The objection as to jurisdiction was raised \"right at the first instance by the husband\".\n\n(ii) The respondent \"specifically reserved his right to file a written reply on merits after the question of jurisdiction was decided\".\n\n(iii) As the respondent had \"reserved his right to lead evi- dence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on merits .....\n\n(iv) There was \"obvious prejudice and failure of justice\" to the respondent as he never led evidence on the merits.\n\n(v) It Was necessary for the appellant to prove that the respondent had refused and neglected to maintain her. and that \"obviously requires an opportunity to be given to the husband to prove his case, if it be one, that he has\n\nnot refused or refuses or neglected to maintain his wife or what his income and means is\".\n\n\"mm-u.\n\ndim\n\n7 SMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, L) 1001\n\n' um\n\n\"W,\n\n(vi) \"Before a decision on merits can be given the husband has the undoubted request (sic) to lead evidence on merits\".\n\n(vii) A proceeding cannot be entertained in a court which has\n\njurisdiction by simply taking recourse to section 531 of the Code, when an objection has been taken against its maintainability, for otherwise the provision relating to jurisdiction would become nugatory.\n\nSection 5 31 \"can cure the infirmity after, the case has been fought on merits.\" \"\n\nWe have examined these grounds, but we are constrained to say that they are not tenable in the facts and} circumstances of this case.\n\nSection 531 of the Code reads an follows,-\n\n\"531. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.\"\n\nThe section therefore relates to a defect of jurisdiction.\n\nAs has been stated by this Court in Purushottamdas Dalmia v. The State of West Bengal(') those are two types' of jurisdiction of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try! particular kinds of offences, and (2) its territorial jurisdiction.\n\nWhile the former goes to the root oh the matter and any transgression of it makes the entire trial voiid, the latter is not of a perempfOry character and is curable under section 531 of the Code.\n\nTerritorial jurisdiction is provided \"just as a matter of convenience, keeping in mind the administrative point of View with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court\".\n\nSub-section (8) of section 488 in fact provides that proceedings under the section \"may be takem against any person in any distribt where he resides or is, or where be last resided with his wife or, as the case may be, the mother of the illegitimate child.\" This therefore is ordinarily the require- ment as to the filing of an application under secti0n 488 within the limits of the jurisdiction of the magistrate concerned.\n\n'So where a magistrate has the \"power\" to try a particular_appli- cation under section 488, and the controversy relates solely to his terntorial jurisdiction, there should, ordinaril , be no reason why section 531 of the Code should not be applicable to the order made by him.\n\nIt has therefore to be examined whether there were any such circumstances in this case for which the High Court could justi- fiably refuse to apply the provisions of section 531-\n\n(1) [1962] 2 SCR. 101.\n\n[1977] 2 S.C.R.\n\nThe first reason why the High Court has not given the benefit of section,53l to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent \"right at the first instance.\" Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the\" impression that section '531 of the Code, would, at any rate, validate his order.\n\nThat, accOrding to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531.\n\nReliance in this connection has been placed on Radharam' v. Rahim SardarG), Sakuntalat v. Thirumalayya(2), State v. Tavam Naika(3), Sultan Chand v.\n\nYogindra Nat/z Baz (4), and Satwant'Singh v. Smt. jaswam Kaur (5).\n\nAs is apparent, section 531 does not entitle a magistrate, who is not a magistrate of the class referred to in sub-section (1) of section 488, to proceed with an application for maintenance.\n\nIn fact even a DistriCt Magistrate, a Sub-Divisional Magistrate or a. Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8) of section 488.\n\nThe true meaning of section 531 is. that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when. he knows that he has no such jurisdiction, there is no reason why a magistrate, who is otherwise duly empowered to make an order under sub-section (1) of section 488 of the Code, cannon proceed with an application under that subsection .for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application\n\non the merits if he finds that he has the territorial jurisdiction.\n\nSection 531 cannot thus be said to be inapplicable to a case Where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the proceeding. and the magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities.\n\nIn other words, there is no reason why. in such a case, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it.\n\nIf the magistrate. in this case, had thought of assuming jurisdiction under section 531. he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdiction.\n\nWe have gone through the cases which have been cited by the counsel for the respondent.\n\nRadharani and another v. Rahim Saidar (supra) was a case where the magistrate proceeded with the trial\n\n(1) A.t.RIT§467:Zicutta 459.\n\n(2) (1966)\n\n2 M.L.J. 326.\n\nG3) A.I.R. 1959 Mysore 193.\n\n(4) A-I-R- 1944 Peshawar 25.\n\n(5) (1956) A.L.J. 134.\n\nSMT. RAJ KUMARI v. DEV RAJ (Sizing/ml, J.) 1003\n\nin the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction.\n\nThis is however not So in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making a reference to the entire evidence which was led on the point.\n\nMoreover he took note of the fact that the respondent had not, speci- fically dened that he lived at village Lampur with the appellant.\n\nThis is therefore not a case. where the Magistrate proceeded with the application even though he had the knowledge that it did not fall within his jurisdiction.\n\nThe same is the position in regard to Sakuntala v. Thirumalayya (supra) and it also cannot avail the respondent.\n\nWe have gone through State v.\n\nTavara Naika (supra).\n\nIt was not a case under section 488 of the Code.\n\nWhat has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a material irregularity pertaining to jurisdic- tion when it is brought to the notice of the Court before the cornmencement of the trial.\n\nIt does not therefore lay down anything different from what has been stated in Rad/761111111.\n\nv. Rahim Sardar (supra).\n\nIt was a case where the accused was committed to a wrong sessions division, and the mistake was corrected because the trial had not commenced.\n\nSultan Chand & another v.\n\nYogindra Nat/z Ba; (supra) was also not a case under section 488 of the Code.\n\nIt has een held in that case that when the question of jurisdiction has been raised before the trial magistrate, it is his duty to determine the point, otherwise the provisions as regards jurisdiction would never be en~ forced and that section 531 cannot be applied to such a case.\n\nAs has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, con- sidered the evidence in his order and reached the conclusion that the\n\napplication was maintainable in his court.\n\nThis is therefore a difierent case.\n\nSatwant Singh\n\nv. Smt; Jaswant Kaur (supra) was a case under section 488 of the Code.\n\nIt has been held there that where the question of jurisdiction had been raised before the trial magistrate, it was his duty to determine the point, and that he can~ not proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction.\n\nAs has been shown, this was not so in the present case.\n\nIt would thus appear that the High Court erred in taking the View that section 531 would not be applicable tothis case merely because an objection as to jurisdiction was raised by the respondent \"right at the first instance.\"\n\nThe second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decided.\n\nWe find that this is clearly a mis- statement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved any such right to file a written reply on the merits at a later stage, after the question of jurisdiction was decidedagainst him.\n\nOn the other hand, we find that the Magistrate specifically overruled the objection of the respondent, and made an order directing the parties to addutre their evidence on the whole case and specifically rejected\n\n16-206SCI/77\n\nthe respondent's application for deciding the question of jurisdiction in the first instance.\n\nThe Magistrate has clearly stated that an order was made by him for the production of evidence \"in the case\", and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole.\n\nThe Magistrate has further stated that the respondent did not file his further or additional reply even then.\n\nThe High Court therefore undoubtedly erred in thinking that the respondentrspecifically reserved his right to file a written reply on the merits later on.\n\nAs has been shown, no such reservation was permitted by the magistrate, and counsel for the respondent was not able to show how the respondent could unilaterally make such a reservation for himself.\n\nIt may be that, in a given case, it may be advisable for a magistrate to confine the evidence of the parties, in the first instance, to any preliminary objection relating to jurisdiction, and to decide the controversy on the merits thereafter, but as this was not so in the present case, we are unable to find any justification for the second ground mentioned by the High Court.\n\nThe third ground of the High Court is also untenable, for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on th merits and did not deliberately give up that right.\n\nHere agai . counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a preliminary question and had passed an order for the production of all the evidence in the case.\n\nIf therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage.\n\nThe High Court has taken the View that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits.\n\nBut the High Court failed to appreciate that the respondent had to thank himself for that predicament.\n\nHe knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect.\n\nHe also knew that the Magistrate had called upon the parties to lead all their evidence.\n\nThe appellant obeyed that order and examined her witnesses.\n\nThe respondent persisted in thinking that, the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it suffi~ cient to. confine his evidence to the question of jurisdiction.\n\nSo it\" he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice.\n\nAS it is, Counsel for the respondent has not been able to refer to any application of the respondent, whether oral or documentary, expressing a desire to lead his evidence on the merits.\n\nThe fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits, and con- fined his evidence to the question of jurisdiction.\n\nIt may be that, as\n\nin.\n\nSMT.\n\nRAJ KUMARI v. DEV RAJ (Shinghal, J.) 1005\n\nhas been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.\n\nThe fifth ground mentioned by the High Court is that before an order could be passed under section 488(1) it was necessary to prove that the husband had refused or neglected to maintain his wife, and that required an opportunity to be given to the husband to prove his case.\n\nBut the argument is futile because the respondent did not set up any defence on the merits.\n\nOn the other hand, the Magistrate found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her.\n\nIn its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits.\n\nIt would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magis- trate.\n\nLastly, the High Court has taken the view that a proceeding cannot be maintained by a court which has no jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction wotuld become nugatory.\n\nThis point has already been considered earlier and need not be re-examined.\n\nIt is thus quite clear that the High Court committed a serious error of law in refusing to invoke section 531 in the facts and circumstances of this case.\n\nIt is not in controversy that the Magistrate who took the proceedings, on the appellant's application under sub- section (1) of section 488, was one of the magistrates mentioned in that sub-section.\n\nThe respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their evidence.\n\nHe specifically rejected the application for confining the evidence to the question of jurisdiction, or to try that as a preliminary issue.\n\nIt is therefore futile to contend that the Magistrate gave himself jurisdiction by recourse to section 531 of the Code.\n\nOn the other hand in his final order, he set out the points which arose for consideration on the question of jurisdiction, made a mention, at length, of the entire evidence on that question and took into consi~ deration the conduct of the respondent and the case law as well as the respondent's reply.\n\nAll that led him to the conclusion that he had jurisdiction to try the application.\n\nThere is therefore no_ reason why section 531 should not be held to be applicable to this case.\n\nAs has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lend his evidence on the merits.\n\nAs we have pointed out, he did 'so deliberately and in\n\n\\-| |\n\ndefiance of the order of the Magistrate calling upon him to lead his evidence on the whole case.\n\nThe respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was\n\na person who had sufficient means and had neglected to maintain his wife, and -made an order that he shall make a monthly allowance of Rs.'125/- per mensem for her maintenance.\n\nThe appeal is allowed and the impugned order of the High Court dated March 14, 1974, is set aside, with costs.\n\nP.B.Rt\n\n\\ Appeal allowed.", "total_entities": 90, "entities": [{"text": "i\n\nRA] KUMARI VIJH", "label": "PETITIONER", "start_char": 2, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "i\n\nRA] KUMARI VIJH", "offset_not_found": false}}, {"text": "DEV RAJ VIJH", "label": "RESPONDENT", "start_char": 22, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "DEV RAJ VIJH", "offset_not_found": false}}, {"text": "February 15, 1977", "label": "DATE", "start_char": 36, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "é i\n\nRA] KUMARI VIJH\n\nDEV RAJ VIJH\n\nFebruary 15, 1977\n\n[P. 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Anéja, for respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 6290, "end_char": 6298, "source": "ner", "metadata": {"in_sentence": "\" The Judgment of the Court was delivered by\n\nSHINGHAL, \"Jr-This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14."}}, {"text": "section 488", "label": "PROVISION", "start_char": 6546, "end_char": 6557, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 6565, "end_char": 6597, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Raj Kumari Vijh", "label": "PETITIONER", "start_char": 6649, "end_char": 6664, "source": "ner", "metadata": {"in_sentence": "Appellant Raj Kumari Vijh was married to respondent Dev Raj Vrjh in Delhi, in June 1950.", "canonical_name": "i\n\nRA] KUMARI VIJH"}}, {"text": "Dev Raj Vrjh", "label": "RESPONDENT", "start_char": 6691, "end_char": 6703, "source": "ner", "metadata": {"in_sentence": "Appellant Raj Kumari Vijh was married to respondent Dev Raj Vrjh in Delhi, in June 1950.", "canonical_name": "DEV RAJ VIJH"}}, {"text": "section 488", "label": "PROVISION", "start_char": 6956, "end_char": 6967, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 48", "label": "PROVISION", "start_char": 7553, "end_char": 7563, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "March 18, 1969", "label": "DATE", "start_char": 7618, "end_char": 7632, "source": "ner", "metadata": {"in_sentence": "Nothing came out of it and she filed the present ,.application_under section 48-8 of the Code in the Court of the Delhi Magistrate on March 18, 1969."}}, {"text": "Delhi", "label": "GPE", "start_char": 7720, "end_char": 7725, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at Village Lampur, P. S.\n\nNarela, Delhi, towards the endof December 1968, because the res- pondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs."}}, {"text": "Aligarh", "label": "GPE", "start_char": 7730, "end_char": 7737, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at Village Lampur, P. S.\n\nNarela, Delhi, towards the endof December 1968, because the res- pondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs."}}, {"text": "Lampur", "label": "GPE", "start_char": 7792, "end_char": 7798, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at Village Lampur, P. S.\n\nNarela, Delhi, towards the endof December 1968, because the res- pondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs."}}, {"text": "Lamlpur", "label": "GPE", "start_char": 8081, "end_char": 8088, "source": "ner", "metadata": {"in_sentence": "It was stated in the application that the parties lived at Lamlpur as husband and wife and there was cohabitation."}}, {"text": "April 29, 1969", "label": "DATE", "start_char": 8339, "end_char": 8353, "source": "ner", "metadata": {"in_sentence": "The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur."}}, {"text": "Feb- ruary 2, 1956", "label": "DATE", "start_char": 8569, "end_char": 8587, "source": "ner", "metadata": {"in_sentence": "An objection was however taken that as the earlier application was dismissed on Feb- ruary 2, 1956, the second application was barred on the principle of res judicata."}}, {"text": "November 19, 1969", "label": "DATE", "start_char": 9197, "end_char": 9214, "source": "ner", "metadata": {"in_sentence": "He made an order on November 19, 1969 that."}}, {"text": "May 21, 1973", "label": "DATE", "start_char": 9966, "end_char": 9978, "source": "ner", "metadata": {"in_sentence": "Ultimately the Magistrate made his final order on May 21, 1973."}}, {"text": "November 30, 1973", "label": "DATE", "start_char": 10818, "end_char": 10835, "source": "ner", "metadata": {"in_sentence": "The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case to the High Court\n\non November 30, 1973, for dismissal, of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had no jurisdiction to entertain it."}}, {"text": "section 488", "label": "PROVISION", "start_char": 10878, "end_char": 10889, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Magistrate", "label": "COURT", "start_char": 10926, "end_char": 10942, "source": "ner", "metadata": {"in_sentence": "The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case to the High Court\n\non November 30, 1973, for dismissal, of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had no jurisdiction to entertain it."}}, {"text": "March 14, 1974", "label": "DATE", "start_char": 11234, "end_char": 11248, "source": "ner", "metadata": {"in_sentence": "In its impugned judgment dated March 14, 1974, the High Court has \"recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the View that the Delhi Court had no jurisdiction to entertain the appellant's application under section 488 of the Code."}}, {"text": "section 488", "label": "PROVISION", "start_char": 11476, "end_char": 11487, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 11761, "end_char": 11772, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 11995, "end_char": 12006, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 13232, "end_char": 13243, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 13396, "end_char": 13405, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 531", "label": "PROVISION", "start_char": 13615, "end_char": 13626, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 14542, "end_char": 14553, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 14916, "end_char": 14927, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 15402, "end_char": 15413, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 15525, "end_char": 15536, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 15767, "end_char": 15778, "source": "regex", "metadata": {"statute": null}}, {"text": "[1962] 2 SCR. 101", "label": "CASE_CITATION", "start_char": 15785, "end_char": 15802, "source": "regex", "metadata": {}}, {"text": "section 531", "label": "PROVISION", "start_char": 16452, "end_char": 16463, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 16699, "end_char": 16710, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 16813, "end_char": 16824, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 17126, "end_char": 17137, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 17160, "end_char": 17171, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 17487, "end_char": 17498, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 531", "label": "PROVISION", "start_char": 17771, "end_char": 17782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 18255, "end_char": 18266, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 18413, "end_char": 18424, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 18572, "end_char": 18583, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 19287, "end_char": 19306, "source": "ner", "metadata": {"in_sentence": "RAJ KUMARI v. DEV RAJ (Sizing/ml, J.) 1003\n\nin the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction."}}, {"text": "section 488", "label": "PROVISION", "start_char": 20099, "end_char": 20110, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 20185, "end_char": 20196, "source": "regex", "metadata": {"statute": null}}, {"text": "Rahim Sardar", "label": "RESPONDENT", "start_char": 20474, "end_char": 20486, "source": "ner", "metadata": {"in_sentence": "v. Rahim Sardar (supra)."}}, {"text": "section 488", "label": "PROVISION", "start_char": 20721, "end_char": 20732, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 20983, "end_char": 20994, "source": "regex", "metadata": {"statute": null}}, {"text": "Satwant Singh", "label": "PETITIONER", "start_char": 21327, "end_char": 21340, "source": "ner", "metadata": {"in_sentence": "Satwant Singh\n\nv. Smt; Jaswant Kaur (supra) was a case under section 488 of the Code."}}, {"text": "Jaswant Kaur", "label": "RESPONDENT", "start_char": 21350, "end_char": 21362, "source": "ner", "metadata": {"in_sentence": "Satwant Singh\n\nv. Smt; Jaswant Kaur (supra) was a case under section 488 of the Code."}}, {"text": "section 488", "label": "PROVISION", "start_char": 21388, "end_char": 21399, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 21829, "end_char": 21840, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 22039, "end_char": 22050, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 24019, "end_char": 24030, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488(1)", "label": "PROVISION", "start_char": 26487, "end_char": 26501, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 27568, "end_char": 27579, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 27903, "end_char": 27914, "source": "regex", "metadata": {"statute": null}}, {"text": "section 488", "label": "PROVISION", "start_char": 28089, "end_char": 28100, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 28531, "end_char": 28542, "source": "regex", "metadata": {"statute": null}}, {"text": "section 531", "label": "PROVISION", "start_char": 28979, "end_char": 28990, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_102_108_EN", "year": 1977, "text": "VASUDEO KULKARNI\n\nSURYAKANT BHATT & ANR.\n\nMarch\"'I, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.J\n\nPractice and Procedure-Trial Court acquirted the accused-High Court- When could reverse the Trial Court's finding.\n\nThe complainant's (the first respondent) father entru&ted certain civil suits to the appellant, who was a lawyer. The complainant was a junior under the appellant. In a complaint lodged with a Magistrate it was alleged that by making a false representation to him that he had deposited in the Court certain sum towards costs in the suit, the appellant had collected from him (the com~ plainant) some money.\n\nLater, in consequence of a como1omise between the parties the .appe11ant returned the sum to the complainant's father by a crossed cheque.\n\nEven so the complainant filed the complaint. The trial court found that it was a case of accounting between the parties and that being a matter of civil nature, acquitted the appellant. The High .Court on the other hand reversed the acquittal and convicted and sentenced him under s. 420 J.P.C~.\n\nAllowing the appeal to this Court,\n\nHELD : The High Court had no reason whatsoever in an appear against acquittal to interfere with the conclusion reached by th~ trial court, which is justified on the evidence. The High Court was clearly \\vrong in spelling out dishonest intention on the part of the appe11ant, taking a view different fro1n that of the trial court. [106 E]\n\n(a) Although in an appeal against acquittal, the H.igh Court may reapprc. ciate fo1 itself the entire evidence and reach its own conclusion, it is well-settled that, when the conclusion is contrary to that of the trial court, the High Court has a further duty to satisfy itself that the grounds given by the trial court for acquittal are palpably wrong or manifestly erroneous. That, as an original court trying the case for the first time, the High Court would have entered a verdict of conviction, is not the test in an appeal against acquittal. This is not a case where it is even remotely possible to characterise the reasons for acquittal as palpably and unerringly shaky, in which case alone, there would be justification for interference by the High Court. The reasons given by the lligh Court should be demonstrably cogent and weighty.\n\n[107 E; GJ\n\n(b) The High Court has failed to take count of the relationship between a client and a lawyer which is a chain of .mutual adjustments of accounts. A lawyer's account should be clear and clean and above suspicion of manipulatlou-,\n\nyet there may __ arise some omissions and commissions in the account which cannot give rise to a criminal charge.\n\n[106 G]\n\nIn the instant case, the complainant lodged the complaint even without the kno\\vledge of his father who had already received the amount in dispute. The appellant's relationship with the complainant's father \\Vas that of lawyer and a client and anything outstanding from one or the other party was a matter of accounting between them. The complainant had no part to play on his own and the prosecution of the appellant even without examining his father as a witness \\Vas unauthorised and uncalled for.\n\nThere was accounting between the parties and even the correspondence showed that there had been adjustments between them from time to time.\n\nThat bing the position dishonest intention which is the principal ingredient of an offence under s. 420 is lacking in this case.\n\n[105 E&GJ\n\nCRIMINAL APPELLATE foRISDICTION : Criminal Appeal No. 23 of 1972.\n\n(Appeal by Special Leave from the Judgment and Order dated 22-10-1971 of the Madhya Pradesh High Court (Indore Bench) in Crl.\n\nA. No. 291 of 1970).\n\nR. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.\n\nM. K. Khan and S. K. Dhingra, for respondent No. 1.\n\nRam Pa11jwa11i and H. S. Parihar, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J. The appellant, an advocate of 25 years' standing, was charged under section 420, Indian Penal Code. He was acquitted by the trial court holding the matter to be of civil nature. The High Court of Madhya Pradesh on appeal at the instance of the complainant (the C first respondent herein) set aside the acquittal and convicted the appellant under section 420 IPC and sentenced him to rigorous imprisonment for two years and to a fine of Rs, 600/-, in dafault further rigorous imprisonment for six months.\n\nThe complainant is the son of one Dinubhai, a senior partner of D Dinubhai & Co., with its head office in Bombay and a branch office in Indore. There were two partners, namely, the complainant's father and one M. C. Mehta. Mehta ceased to be a partner in the firm with effect from July 5, 1960.\n\nA civil suit was instituted by Dinubhai against Nai Duniya, Indore, a daily newspaper, impleading M. C.\n\nMehta also as a co-defendant. The suit was decreed against Nai Duniya but was dismissed against M. C. Mehta with costs amounting E to Rs. 612/- awarded to him. The complainant was acting as a junior to the appellant in this suit as well as in several other suits filed by the firm against others. It is alleged by the complainant that about February 8, 1965, the appellant made a demand from him, along with other amounts, of a sum of Rs. 612/- being the costs awarded to Mehta in the aforesaid suit by making a representation that he had already deposited the amount in court from his own funds.\n\nDepending upon F this statement, the complaint proceeds, the complainant paid a sum of Rs. 1000/- which included the amount of Rs. 612/- towards the costs awarded.\n\nThe firm appealed against the decree and it appears a compromise was entered with Mehta whereby Mehta relinquished his claim for costs of Rs. 612/-. This happened on March 10, 1967. On that very date the appellant returned to Dinubhai the sum of Rs. 612/- by a crossed cheque stating that \"this appeal is just now disposed of by the Hon'ble High Court, Indore. I am, therefore, expected to remit this sum to you''. Even so, the complainant, Dinubhai's son, lodged a complaint in the court of the Addition&! District Magistrate, Indore City, on September 21, 1967, bringing a charge of cheating against rhe appellant by citing the only witness in the complaint being the Record Keeper of the High Court. Dinubhai, his father, was not even mentioned as a witness in the complaint nor was he later examined in the case.\n\n8-240SCT/77\n\nIn the trial the complainant examined himself and one Vijaykumar, . a clerk in the office of the High Court. The latter has proved flom the records of the first appeal in the High Court that the costs of Rs. 612/- awarded to the defendant, Mehta, in the suit had not been deposited on behalf of the complainant's father, Dinubhai.\n\nThe complainant reiterated his allegations in the complaint and further stated that after the compromise with Mehta which had taken place on March 10, 1967, he perused the record of the case and came to know that the appellant had not deposited any money of the costs to Mehta in the court. He, however, admitted that after the compromise the appellant had sent a cheque of Rs. 612/- to his father at Bombay.\n\nIn the course of cross-examination his attention was invited to his following statement given before the Magistrate under section 200, Criminal Procedure Code :\n\n\"Thereafter when Shri V. V. Kulkarni told me the aforesaid thing I knew and had knowledge of the fact that he had not deposited Rs. 612.00 in the court.\n\nStill Shri Kulkarni deceitfully demanded Rs. 612.00 from me\".\n\nIn the printed paper-book before this Court at page 3, paragraph 6 there is an error in adding the word \"not\" before the word \"knowledge\".\n\nThis is clear from the original High Court paper-book which we have examined.\n\nThe trial court found that it was a case of accounting between the parties and was a matter of civil nature. The trial court thus acquitted the appellant. The High Court on appeal, as mentioned earlier, reversed the acquittal and convicted and sentenced the appellant under section 420 IPC. Hence this appeal by special leave.\n\nThe complainant, who had earlier quarrelled with his father and later for some reason or other parted company with the appellant, who F was his senior, lodged the complaint even without the knowledge of his father who had already received the amount of Rs. 612/- for which the complainant was said to have been cheated. The statements of accounts filed in the case olearly show that at different times the firm was liable to pay certain expenses and fees to the appellant and at other J times the appellant was holding some money on client's account. The 1 letter of Dinubhai (Ex. D-8) dated October 27, 1966, to the appellant G is revealing in this respect. The letter states, inter alia, that-\n\n\"indeed you have worked and you must receive your fees.\n\nThere may be lot of recoveries now due and may I request you to recover your fees out of the recoveries.\n\nYou are aware that I have ventured to put Suryakant with your support at Indore and there can be no idea ever in exis- H tence to offend you. I think we are best friends and there should be no hitch in that at all.\n\nx x x x\n\nMay I therefore request you to please carry out all the A recovery proceedings and take all your dues you think reasonable from the amounts so recovered''.\n\nSimilarly the letter from the complainant (Ex. D-39) to the appellant of March 29, 1967, written under instructions of Dinubhai was as follows :-\n\n\"(1) That you have submitted the last statement of account on 16-8-1966 showing the cash on hand of Rs. 488.60P remaining with you for future expenses.\n\n(2) My client paid to you Rs. 300/- (Rupees three hundred) on 3-1-1967. Thus, you had Rs. 788.60P\n\n(Rupees seven hundred eighty eight and Np. sixty) cash on hand with you.\n\n( 3) It is, therefore, requested that kindly give the detailed statement of account to my client, as it is required for the purposes of Income tax\".\n\nOn the top of that we find from the copy of the complaint (Ex. D-10) in Civil Suit No. 8 of 1968 B filed by Dinubhai against the app()][ant on D February 16, 1968, claiming a decree for the amount of Rs. 11492.85 after acknowledging the receipt of Rs. 612/-, the subject matter of the cheating case (para 3 of the plaint). It is, therefore, crystal clear that the appellant's relationship with the complainant's father was that of a lawyer and a client and anything outstanding from one or the other party was a matter of accounting between them. The complainant has no part to play on his own and his prosecution of the appellant even without examining his father as a witness is absolutely unauthorised and unca, lled for.\n\nEven the receipt (Ex. P-1) upon which the High Court principally relied goes to show that a sum of Rs. 350.90 had already been spent\n\nby the appellant and it is only on February 11, 1965, the date of the receipt, that this money was received by him from the complainant on F behalf of Dinnbhai. Even this receipt (Ex. P-1) shows that a round figure of Rs. 1000/- was paid to him leaving Rs. 37.10 as \"cash for expenses\". By no stretch of imagination it can be said that any deception was practised upon the complainant on February 11, 1965, when the latter parted with one thousand rupees inclnding the amount of Rs. 612/- towards the costs payable to Mehta.\n\nApart from this the costs of Rs. 612/- were indeed a liability of Dinubhai to Mehta and G not a fictitious claim. There was accounting between the parties and even the correspondence shows that there have been adjustments between the parties from time to time.\n\nThat being the position dishonest intention which is the principal ingredient of an offence under section 420 IPC is lacking in this case.\n\nEven on merits it is olear that after receipt of the statement of H account from the appellant on February 10, 1965, the complainant knew quite well that there had been no deposit of Rs. 612/- as costs in\n\nthe court. There was, therefore, no occasion for making a statement to the complainant to represent that the appellant had already deposited Rs. 612/- in the court on account of the costs payable to Mehta ..\n\nApart from that since the amount was actually payable by the firm to Mehta, there was no need for making any representation to the complainant for obtaining this amount. It is even probable that this amount had beeu received towards payment of costs even without making any representation as alleged. The High Court has unnecessarily given exaggerated importance to the typed receipt (Ex.\n\nP-1) of February 11, 1965, signed by the appe1lant wherein against the amount of Rs. 612/- it was recited that \"the costs of Shri Mehta in the matter of Nai Duniya, deposited by me in the court from my person''. I\\ is suggested by the appellant in the course of cross-examination of the complaiuant that this receipt was got typed by the complainant and the appellant only signed it in good faith in the usual course. The complainant, however, denied the suggestion.\n\nThere is also no evidence to show as to who typed the receipt or who even dictated the contents in the receipt. Whatever be the actual position, we are not prepared to hold that the complainant's allegation of wilful and dishonest representation by the appe11ant is at all corroborated by the recital in the receipt.\n\nOn the other haud, the history of the relationship between the parties. together with what has been set out above from the correspondences clearly lead to the conclusion that the trial court was perfectly justified in holdiug that it was a matter of civil nature and the offence under section 420 IPC was not at all established.\n\nThe High Court, therefore, had no reason whatsoever in appeal against acquittal to interfere with this conclusion which is clearly justified on the evidence. This is a case in which the High Court was clearly wrong in spelling out dishonest intention on the part of the appellant taking a view different from that of the trial court.\n\nIt is not likely at all that the amoUfit of Rs. 612/- was paid because of any representation by the appellant hut because the same was a known liability of the complainant's father as costs in favour of Mehta.\n\nWhat was grievously missed by the High Court is that the transfer of money from the complainant to the appellant was not for a fake cause, nor did the passing of the money depend crucially on the representation, assuming it was made, that the amount had been already deposited by the appellant out of his personltl funds. The High Court has positively failed to take count of the relationship between the client and the lawyer which was a chain of mutual adjustment of accounts involving ascertaimnent of fees and all legitimate and sundry expenses. It is true that a lawyer's account should be Clear and clean and above suspicion of manipulation but that there may arise some omissions and commissions in the account cannot give rise to a criminal charge for which strong and unimpeachable proof wi11 be necessary.\n\nPrincipally the trial court entered the verdict of acquittal on the ground that \"the position was very clear to the complainant that no deposit towards the costs awarded to M. C. Mehta had been made by the accnsed\" and \"as such the possibility that the complainant was fully aware of the real position about the alleged deposit cannot be ruled\n\n'out\". The above conclusion of the trial court rests on the complainanfs position as a junior •lawyer assisting the appellant in the particular suit and in other cases; the complainant's own admission before the Magistrate in his statement recorded under section 200, Criminal Procedure Code that he (complainant) \"knew and had knowledge of the fact that he (the appellant) had not deposited Rs. 612/- in the court\"; and the\n\ntatement of account of February 9, 1965, received by the complainant on February 10, 1965, showing that the deposit of Rs. 612/- had not heen mentioned.\n\nIt is, therefore, impossible for the High Court to hold, on the evidence on record, that \"it is difficult to agree with the learned Magistrate that Suryakant must have known and did actually know that no deposit had been made\". The High Court even did not refer to the statement of the complainant in bis initial deposition which was put to him in the course of cross-examination.\n\nThe Magistrate also gave importance to the fact that the complain- 11nt's father, on whose behalf alone the complainant was acting, should not have been examined as a witness. The Magistrate also considered the unusual delay in lodging the complaint as one of the grounds for \"treating their real controversy to be of civil nature\".\n\nIt is true that in an appeal against acquittal, the High Court may reappreciate for itself the entire evidence and reach its own conclusion, but it is equally well-settled that when the said conclusion is contrary to that of the trial court, the High Court has a further duty to satisfy \"itself that the grounds given by the trial court for acquittal are palpably wrong or manifestly erroneous, shocking one's sense of justice. That, as an original court trying the case for the first time, the High Court would have entered a verdict of conviction, is not the test in an appeal against acquittal. The High Court spelt out dishonest intention from the appellant'nefund of the amount by cheque on March 10, 1967, on settlement between the parties in appeal.\n\nThis is an entirely wrong approach as the mens rea for the charge of cheating has to be considered on the date of the fraudulent or dishouest representation which was allegedly on February 8, 1965, two years earlier.\n\nHaving examined the reasons given by the trial court for the acquit- tal and having ourselves perused the entire evidence, we are clearly of opinion that this is not a case where it is even remotely possible to characterise the reasons for acquittal as palpably and unerringly shaky, in which case alone, there would be justification for interference by the High Court. We are also unable to say that the reasons given bv the High Court are demonstrably cogent and weighty to enable it to interfere with the acquittl.\n\nAt the conclusion of the argument by Mr. Khan on behalf of the .complainant pressing for conviction of the appellant, Mr. Panjwani,\n\nA appearing on behalf of the State, fairly enough, did not think it proper to support the judgment of the High Court.\n\nIn the result the appeal is allowed. The judgment of the High Court is set aside. The appellant who has been on bail shall be discharged from his bail bond.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 59, "entities": [{"text": "VASUDEO KULKARNI", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "VASUDEO KULKARNI", "offset_not_found": false}}, {"text": "SURYAKANT BHATT & ANR", "label": "RESPONDENT", "start_char": 18, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "SURYAKANT BHATT & ANR", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 59, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "s. 420", "label": "PROVISION", "start_char": 1044, "end_char": 1050, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 420", "label": "PROVISION", "start_char": 3387, "end_char": 3393, "source": "regex", "metadata": {"statute": null}}, {"text": "22-10-1971", "label": "DATE", "start_char": 3557, "end_char": 3567, "source": "ner", "metadata": {"in_sentence": "(Appeal by Special Leave from the Judgment and Order dated 22-10-1971 of the Madhya Pradesh High Court (Indore Bench) in Crl."}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 3647, "end_char": 3658, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.", "canonical_name": "R. L. Kohli"}}, {"text": "R. C. Kohli", "label": "LAWYER", "start_char": 3660, "end_char": 3671, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.", "canonical_name": "R. L. Kohli"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3676, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant."}}, {"text": "M. K. Khan", "label": "LAWYER", "start_char": 3715, "end_char": 3725, "source": "ner", "metadata": {"in_sentence": "M. K. Khan and S. K. Dhingra, for respondent No."}}, {"text": "S. K. Dhingra", "label": "LAWYER", "start_char": 3730, "end_char": 3743, "source": "ner", "metadata": {"in_sentence": "M. K. Khan and S. K. Dhingra, for respondent No."}}, {"text": "Ram Pa11jwa11i", "label": "LAWYER", "start_char": 3768, "end_char": 3782, "source": "ner", "metadata": {"in_sentence": "Ram Pa11jwa11i and H. S. Parihar, for respondent No."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 3787, "end_char": 3800, "source": "ner", "metadata": {"in_sentence": "Ram Pa11jwa11i and H. S. Parihar, for respondent No."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 3869, "end_char": 3876, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGoswAMI, J. The appellant, an advocate of 25 years' standing, was charged under section 420, Indian Penal Code."}}, {"text": "section 420", "label": "PROVISION", "start_char": 3949, "end_char": 3960, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3962, "end_char": 3979, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 4063, "end_char": 4091, "source": "ner", "metadata": {"in_sentence": "The High Court of Madhya Pradesh on appeal at the instance of the complainant (the C first respondent herein) set aside the acquittal and convicted the appellant under section 420 IPC and sentenced him to rigorous imprisonment for two years and to a fine of Rs, 600/-, in dafault further rigorous imprisonment for six months."}}, {"text": "section 420", "label": "PROVISION", "start_char": 4227, "end_char": 4238, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 4239, "end_char": 4242, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dinubhai", "label": "PETITIONER", "start_char": 4420, "end_char": 4428, "source": "ner", "metadata": {"in_sentence": "The complainant is the son of one Dinubhai, a senior partner of D Dinubhai & Co., with its head office in Bombay and a branch office in Indore.", "canonical_name": "Dinubhai"}}, {"text": "D Dinubhai & Co.", "label": "ORG", "start_char": 4450, "end_char": 4466, "source": "ner", "metadata": {"in_sentence": "The complainant is the son of one Dinubhai, a senior partner of D Dinubhai & Co., with its head office in Bombay and a branch office in Indore."}}, {"text": "Bombay", "label": "GPE", "start_char": 4492, "end_char": 4498, "source": "ner", "metadata": {"in_sentence": "The complainant is the son of one Dinubhai, a senior partner of D Dinubhai & Co., with its head office in Bombay and a branch office in Indore."}}, {"text": "Indore", "label": "GPE", "start_char": 4522, "end_char": 4528, "source": "ner", "metadata": {"in_sentence": "The complainant is the son of one Dinubhai, a senior partner of D Dinubhai & Co., with its head office in Bombay and a branch office in Indore."}}, {"text": "M. C. Mehta", "label": "OTHER_PERSON", "start_char": 4596, "end_char": 4607, "source": "ner", "metadata": {"in_sentence": "There were two partners, namely, the complainant's father and one M. C. Mehta.", "canonical_name": "M. C.\n\nMehta"}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 4609, "end_char": 4614, "source": "ner", "metadata": {"in_sentence": "Mehta ceased to be a partner in the firm with effect from July 5, 1960."}}, {"text": "July 5, 1960", "label": "DATE", "start_char": 4667, "end_char": 4679, "source": "ner", "metadata": {"in_sentence": "Mehta ceased to be a partner in the firm with effect from July 5, 1960."}}, {"text": "Nai Duniya", "label": "RESPONDENT", "start_char": 4730, "end_char": 4740, "source": "ner", "metadata": {"in_sentence": "A civil suit was instituted by Dinubhai against Nai Duniya, Indore, a daily newspaper, impleading M. C.\n\nMehta also as a co-defendant.", "canonical_name": "Nai Duniya"}}, {"text": "M. C.\n\nMehta", "label": "OTHER_PERSON", "start_char": 4780, "end_char": 4792, "source": "ner", "metadata": {"in_sentence": "A civil suit was instituted by Dinubhai against Nai Duniya, Indore, a daily newspaper, impleading M. C.\n\nMehta also as a co-defendant.", "canonical_name": "M. C.\n\nMehta"}}, {"text": "Nai Duniya", "label": "RESPONDENT", "start_char": 4846, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "The suit was decreed against Nai Duniya but was dismissed against M. C. Mehta with costs amounting E to Rs.", "canonical_name": "Nai Duniya"}}, {"text": "February 8, 1965", "label": "DATE", "start_char": 5128, "end_char": 5144, "source": "ner", "metadata": {"in_sentence": "It is alleged by the complainant that about February 8, 1965, the appellant made a demand from him, along with other amounts, of a sum of Rs."}}, {"text": "March 10, 1967", "label": "DATE", "start_char": 5716, "end_char": 5730, "source": "ner", "metadata": {"in_sentence": "This happened on March 10, 1967."}}, {"text": "Dinubhai", "label": "GPE", "start_char": 5776, "end_char": 5784, "source": "ner", "metadata": {"in_sentence": "On that very date the appellant returned to Dinubhai the sum of Rs."}}, {"text": "court of the Addition&! District Magistrate, Indore City", "label": "COURT", "start_char": 6033, "end_char": 6089, "source": "ner", "metadata": {"in_sentence": "Even so, the complainant, Dinubhai's son, lodged a complaint in the court of the Addition&!"}}, {"text": "September 21, 1967", "label": "DATE", "start_char": 6094, "end_char": 6112, "source": "ner", "metadata": {"in_sentence": "District Magistrate, Indore City, on September 21, 1967, bringing a charge of cheating against rhe appellant by citing the only witness in the complaint being the Record Keeper of the High Court."}}, {"text": "Dinubhai", "label": "PETITIONER", "start_char": 6253, "end_char": 6261, "source": "ner", "metadata": {"in_sentence": "Dinubhai, his father, was not even mentioned as a witness in the complaint nor was he later examined in the case.", "canonical_name": "Dinubhai"}}, {"text": "Vijaykumar", "label": "WITNESS", "start_char": 6435, "end_char": 6445, "source": "ner", "metadata": {"in_sentence": "8-240SCT/77\n\nIn the trial the complainant examined himself and one Vijaykumar, ."}}, {"text": "section 200", "label": "PROVISION", "start_char": 7245, "end_char": 7256, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 7258, "end_char": 7281, "source": "regex", "metadata": {}}, {"text": "V. V. Kulkarni", "label": "OTHER_PERSON", "start_char": 7307, "end_char": 7321, "source": "ner", "metadata": {"in_sentence": "In the course of cross-examination his attention was invited to his following statement given before the Magistrate under section 200, Criminal Procedure Code :\n\n\"Thereafter when Shri V. V. Kulkarni told me the aforesaid thing I knew and had knowledge of the fact that he had not deposited Rs."}}, {"text": "Kulkarni", "label": "OTHER_PERSON", "start_char": 7450, "end_char": 7458, "source": "ner", "metadata": {"in_sentence": "Still Shri Kulkarni deceitfully demanded Rs."}}, {"text": "section 420", "label": "PROVISION", "start_char": 7995, "end_char": 8006, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 8007, "end_char": 8010, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 27, 1966", "label": "DATE", "start_char": 8641, "end_char": 8657, "source": "ner", "metadata": {"in_sentence": "D-8) dated October 27, 1966, to the appellant G is revealing in this respect."}}, {"text": "Suryakant", "label": "OTHER_PERSON", "start_char": 8951, "end_char": 8960, "source": "ner", "metadata": {"in_sentence": "You are aware that I have ventured to put Suryakant with your support at Indore and there can be no idea ever in exis- H tence to offend you."}}, {"text": "16-8-1966", "label": "DATE", "start_char": 9500, "end_char": 9509, "source": "ner", "metadata": {"in_sentence": "D-39) to the appellant of March 29, 1967, written under instructions of Dinubhai was as follows :-\n\n\"(1) That you have submitted the last statement of account on 16-8-1966 showing the cash on hand of Rs."}}, {"text": "3-1-1967", "label": "DATE", "start_char": 9653, "end_char": 9661, "source": "ner", "metadata": {"in_sentence": "300/- (Rupees three hundred) on 3-1-1967."}}, {"text": "February 16, 1968", "label": "DATE", "start_char": 10059, "end_char": 10076, "source": "ner", "metadata": {"in_sentence": "8 of 1968 B filed by Dinubhai against the app()][ant on D February 16, 1968, claiming a decree for the amount of Rs."}}, {"text": "February 11, 1965", "label": "DATE", "start_char": 10809, "end_char": 10826, "source": "ner", "metadata": {"in_sentence": "350.90 had already been spent\n\nby the appellant and it is only on February 11, 1965, the date of the receipt, that this money was received by him from the complainant on F behalf of Dinnbhai."}}, {"text": "Dinnbhai", "label": "PETITIONER", "start_char": 10925, "end_char": 10933, "source": "ner", "metadata": {"in_sentence": "350.90 had already been spent\n\nby the appellant and it is only on February 11, 1965, the date of the receipt, that this money was received by him from the complainant on F behalf of Dinnbhai.", "canonical_name": "Dinubhai"}}, {"text": "section 420", "label": "PROVISION", "start_char": 11660, "end_char": 11671, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 11672, "end_char": 11675, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February 10, 1965", "label": "DATE", "start_char": 11800, "end_char": 11817, "source": "ner", "metadata": {"in_sentence": "Even on merits it is olear that after receipt of the statement of H account from the appellant on February 10, 1965, the complainant knew quite well that there had been no deposit of Rs."}}, {"text": "section 420", "label": "PROVISION", "start_char": 13578, "end_char": 13589, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 13590, "end_char": 13593, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 200", "label": "PROVISION", "start_char": 15586, "end_char": 15597, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 15599, "end_char": 15622, "source": "regex", "metadata": {}}, {"text": "February 9, 1965", "label": "DATE", "start_char": 15780, "end_char": 15796, "source": "ner", "metadata": {"in_sentence": "612/- in the court\"; and the\n\ntatement of account of February 9, 1965, received by the complainant on February 10, 1965, showing that the deposit of Rs."}}, {"text": "Khan", "label": "LAWYER", "start_char": 18163, "end_char": 18167, "source": "ner", "metadata": {"in_sentence": "At the conclusion of the argument by Mr. Khan on behalf of the .complainant pressing for conviction of the appellant, Mr. Panjwani,\n\nA appearing on behalf of the State, fairly enough, did not think it proper to support the judgment of the High Court."}}, {"text": "Panjwani", "label": "OTHER_PERSON", "start_char": 18244, "end_char": 18252, "source": "ner", "metadata": {"in_sentence": "At the conclusion of the argument by Mr. Khan on behalf of the .complainant pressing for conviction of the appellant, Mr. Panjwani,\n\nA appearing on behalf of the State, fairly enough, did not think it proper to support the judgment of the High Court."}}]}
{"document_id": "1977_3_109_112_EN", "year": 1977, "text": "I 09\n\nVASUDEO KULKARNI\n\nSURYAKANT BHATT & ANR.\n\nMarch 2, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nPractice and Procedure-Trial Court acquitted the accused-High Court- When could reverse trial court's findings.\n\nThe appellant was a lawyer, under whom the Complainant (first respondent) was a junior. The ap-pellant was engaged as counsel in certain cases by the complainant's father. The appellant submitted staten1eat of accounts to the complainant's father in respect of the sums spent by him. in the suits. After a lapse of three years the complainant filed a complaint against the appeJlant making allegations under ss. 409, 468 and 474 I.P.C. The trial Court acquitted him holding that the prosecution had been launched after inordinate delay and that there was no clear and conclusive evidence of criminal intention and dishonest mental act on the appellant's part. The High Court, on appeal, set aside th~\n\nacquittal holding that the appellant's explanation in regard to the discrepancies\n\n\\Va~ not true and could not be accepted.\n\nAllowing the appeal to this Court,\n\nHELD : There was no sufficient ground for the High Court to interfere with the acquittal in this case when the reasons given by the trial Court were weight)1 and cogent and there was no compelling justification to take a contrary view.\n\n. (112 Fl\n\nThe mere fact that certain amounts were in the hand.s of the appellant and the accounts submitted were incorrect would not lead to the conclusion that the\n\nappellant comm1tted criminal breach of trust. [111 F]\n\nIn the instant case, the complainant was a junior of the appellant and he could himself easily find out the discrepancy in the accounts and could have drawn the appellant's attention to it. The complainant's father did not authori!:>e him to file the complaint nor was he examined to corroborate the complainant. Secondly, in a notice issued to the appellant by the complainanfs father the latter did not attribute any dishonest intention or criminal intent on farmer's part. The High Court was wrong in holdin.2 the charge as proved and in reversing the order of the trial Court. [111 G; 112 CJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 24 of 1972.\n\n(Appeal by Special Leave from the Judgment and Order dated 22-10-1971 of the Madhya Pradesh High Court (Indore Bench) in Crl.\n\nA. No. 292/70).\n\nR. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.\n\nM. K. Khan and S. K. Dhingra, for respondent No. 1.\n\nRam Panjwani and H. S. Parihar, for respondent No. 2;\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under section 409, Indian Penal Code, and sentencing him to one\n\nA year's rigorous imprisonment and to a fine of _Rs. 250/-, i1: default ur ther rigorous imprisonment for three months, m appea:l aamst acqmttal at the instance of the complainant (first respondent herem).\n\nThe appellant is a senior lawyer of 25 years' standing in Indore and the complainant was acting as his junior. The complainant's father, Dinubhai, was the senior partner of a firm of Chartered Accountant, B .M/s. Dinubhai & Co., with its registered office in Bombay and a branch office in Indore.\n\nThe Indore office was looked after by the second partner, M. C. Mehta. It appears that the firm was dissolved on July 5, 1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties. Dinubhai filed a suit, being suit No. 13 of 1962, for recovery of Rs. 12,500/- in the court of the Third Additional C District Judge, Indore, impleading M. C. Mehta and one Chandulal Shah as defendants in that suit.\n\nAlthough the suit was decreed, it appears there were two cross appeals against the decree in the High Court, one by Dinubhai and the other by Chandulal Shah. The appellant ·\" was appearing for Dinubhai in both the appeals.\n\nHe received some amounts in advance from Dinubhai and submitted a statement of account of Shri Dinubhai (Ex. P-1) dated February 9, 1965, wherein D two items, namely, Rs. 210/- and Rs. 110/- were mentioned as being towards \"paper book charges\" respectively on 21-4-1964 and 22-9-1964.\n\nThe entry on 22-9-1964 shows that the amount of Rs. llO/- is one of several items mentioned therein as expenses incurred in the appeal filed by Chandulal Shah against Dinubhai.\n\nSo far as the items mentioned in Ex. P-1 on 21-4-1964 including the last item of Rs. 210/-, there is no mention whether the expenditure was actually E incurred on that date.\n\nThe complainant was not pulling on well with his father for some reason or other and also parted company with his senior, the appellant. _He filed a.complaint against the appellant on December 8, 1967, makmg allegations under sections 409, 468 and 4 7 4 IPC.\n\nUltimately the appellant was charged under section 409 IPC with regard to the amounts of Rs. 210/- and Rs. 110/- which were mentioned in the statement of account (Ex. pcl) received by the complainant on February 10, 1965. The complainant examined himself and a clerk of the High Court to prove that no paper book charges were deposited on the dates mentioned in the accounts. On the other hand a sum of Rs. 26.50 was deposited as paper book charges on March 18, 1965, in the particular appeal.\n\nThe appellant denied the charge and stated that there was a typing error in the accounts and the actual figures should have been Rs. 21 /- (and not .Rs. 210/-) and Rs. 10/- (and not Rs. 110/-). When the appellant's attention had been drawn to these amounts he admitted these to be typing errors and asked for adjustment of the amount of Rs. 300/- towards his fees in the case of Kothari Book Depot.\n\nIt is rather curious that a criminal complaint should have been lodged against the appellant nearly three years after the receipt of the accounts by the complainant.\n\nVASUDEO KULKARNI v. SURYAKANT BHATT (Goswami, J.) 111\n\nThe trial court acquitted the accused (appellant herein) by observing as follows :-\n\n\"To sum up, the prosecution has been launched after inordinate unexplained delay, there is no. clear and conclusive evidence of the criminal intention and dishonest mental act of the accused, the real aggrieved person has not come with the complainant but has already sought the alternative remedy in Civil Court which is being already pursued. The question whether or not the adjustment made by the accused towards his fees was proper can more appropriately b_e decided by Civil Court.\n\nAccused having reasonable claim against the complainant for any equiva.Jent sum of money, his user of the disputed sum for bis own purpose will not amount to criminal breach of trust\".\n\nThe High Court, on the other hand, held that the charge was established against the accused and set aside the acquittal. The High Court held that the explanation of the accused did not appear to be true and, therefore, could not be accepted. It further held that it was clear that on the dates mentioµcd in the accounts no amounts were deposited as paper book charges in the High Court. The High Court concluded as follows:-\n\n\"Consequently it cannot be doubted that the respondent, who as an agent of the complainant's father was entrusted with the amounts, showed false expenses and thereby kept the amounts with himself.\n\nIn the face of these facts and also on the finding that the explanation given by the respondent cannot be accepted, the respondent cannot escape conviction 1)nder section 409 l.P.C. as that was \"the only charge framed against him by the trying Magistrate\".\n\nThe statement of account (Ex. P.l) as well as the correspondence between the appellant and the complainant's father, who was his client, clearly show that thue was mutual accounting and adjustment between them. The mere fact that certain amounts were in-the hands of the appellant and the accounts submitted were incorrect would not lead to the inevitable conclusion that the appellant committed criminal breach of trust in respect of these items.\n\nThe complainant, who was a junior attached to him and was looking after his cases could himself easily find out the discrepancies in tlie\n\naccounts and in a normal course he wonld have drawn the attention of his senior on receipt of the statement of account in February 1965.\n\nThe accused in his statement under section 342, Criminal Procedure Code, stated, inter alia, as follows :-\n\n\"Typing error has occurred in the statement of account of Ex. P-1.\n\nThe difference of Rs. 300.00 which has occurred, bas been adjusted against my fees in Kothari Book Depot's case at the instance of Suryakant. I have given a receipt for it which is in possession of Suryakant. Surya kant used to maintain account of Court expenses of Dinubhai's cases in a register.\n\nThat register is with Suryakant.\n\nSuryakant used to remain present in the court on each date along with me.\n\nHe knows everything.\n\nNothing is concealed from him.\n\nThere is Gadbad of money between Suryakant and his father. Hence on the instigation of other people this false case has been launched. Suryakant had got typed the statement of account Ex. P-1 from the register\".\n\nOn one side we have the solitary statement of the complainant.\n\nEven his father is not there to corroborate him or even to show that he authorised him to file the complaint. As against his statement, we have the explanation of the appellant.\n\nThe trial court who had an opportunity to see the complainant giving evidence did not choose to rely on his version of the case and preferred to accept the explanation of the appellant. In this state of the evidence we fail to see how the High Court, in an appeal against acquittal, thought it possible to hold the charge as proved. While the complaint was filed on December 8, 1967, a few months earlier on May 16, 1967, a lawyer's notice was addressed to the appellant on behalf of Dinubhai. We may extract the following passage from that letter :\n\n\"My client has instructed me to call upon you to remit to him the balance of Rs. 1700/- lying with you (after deducting your fees of Rs. 3300/- from the amount of Rs. 5,000/- paid to you) within 24 hours of the receipt Of this reply otherwise my client will not only place the matter before the Bar Council of M.P. but, if so advised, wm also file a suit for its recovery against you at your cost and consequences which please note\".\n\nThis would clearly show that neither Dinubhai nor his lawyer ever thought of attributing any dishonest intention or criminal intent to the appellant. In view of this Jetter it is not possible to accept the sole testimony of the complainant imputing dishonest intention on the part of the appellant.\n\nWe are clearly of opinion that there was no sufficient ground for the High Court to interfere with the acquittal in iliis case when the reasons given by the trial court were weighty and cogent and there was no compelling justifkation to take a contrary view.\n\nAt the conclusion of the argument by Mr. Khan on behalf of the complainant pressing for convictioii of the appellan~, Mr.\n\nPa1_1jwani, appearing on behalf of the State, fairly enough, did not thmk it proper to support the judgment of the High Court.\n\nIn the result the appeal is allowed.\n\nThe j1.1dgment of the Higlt Court is set aside. The appellant shall be discharged from his bail bond.\n\nP.B.R.\n\nAppeal. allowed.", "total_entities": 43, "entities": [{"text": "09\n\nVASUDEO KULKARNI", "label": "PETITIONER", "start_char": 2, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "VASUDEO KULKARNI", "offset_not_found": false}}, {"text": "SURYAKANT BHATT & ANR", "label": "RESPONDENT", "start_char": 24, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "SURYAKANT BHATT & ANR", "offset_not_found": false}}, {"text": "March 2, 1977", "label": "DATE", "start_char": 48, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "March 2, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 64, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "ss. 409, 468 and 474", "label": "PROVISION", "start_char": 625, "end_char": 645, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 646, "end_char": 651, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 2347, "end_char": 2358, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.", "canonical_name": "R. L. Kohli"}}, {"text": "R. C. Kohli", "label": "LAWYER", "start_char": 2360, "end_char": 2371, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant.", "canonical_name": "R. L. Kohli"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 2376, "end_char": 2393, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, R. C. Kohli and A. G. Ratnaparkhi, for the appellant."}}, {"text": "M. K. Khan", "label": "LAWYER", "start_char": 2415, "end_char": 2425, "source": "ner", "metadata": {"in_sentence": "M. K. Khan and S. K. Dhingra, for respondent No."}}, {"text": "S. K. Dhingra", "label": "LAWYER", "start_char": 2430, "end_char": 2443, "source": "ner", "metadata": {"in_sentence": "M. K. Khan and S. K. Dhingra, for respondent No."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 2468, "end_char": 2480, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani and H. S. Parihar, for respondent No."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 2485, "end_char": 2498, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani and H. S. Parihar, for respondent No."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 2567, "end_char": 2574, "source": "ner", "metadata": {"in_sentence": "2;\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under section 409, Indian Penal Code, and sentencing him to one\n\nA year's rigorous imprisonment and to a fine of _Rs."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 2648, "end_char": 2676, "source": "ner", "metadata": {"in_sentence": "2;\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh convicting the appellant under section 409, Indian Penal Code, and sentencing him to one\n\nA year's rigorous imprisonment and to a fine of _Rs."}}, {"text": "section 409", "label": "PROVISION", "start_char": 2708, "end_char": 2719, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2721, "end_char": 2738, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indore", "label": "GPE", "start_char": 3032, "end_char": 3038, "source": "ner", "metadata": {"in_sentence": "The appellant is a senior lawyer of 25 years' standing in Indore and the complainant was acting as his junior."}}, {"text": "Dinubhai", "label": "OTHER_PERSON", "start_char": 3111, "end_char": 3119, "source": "ner", "metadata": {"in_sentence": "The complainant's father, Dinubhai, was the senior partner of a firm of Chartered Accountant, B .M/s. Dinubhai & Co., with its registered office in Bombay and a branch office in Indore."}}, {"text": "Bombay", "label": "GPE", "start_char": 3233, "end_char": 3239, "source": "ner", "metadata": {"in_sentence": "The complainant's father, Dinubhai, was the senior partner of a firm of Chartered Accountant, B .M/s. Dinubhai & Co., with its registered office in Bombay and a branch office in Indore."}}, {"text": "M. C. Mehta", "label": "OTHER_PERSON", "start_char": 3330, "end_char": 3341, "source": "ner", "metadata": {"in_sentence": "The Indore office was looked after by the second partner, M. C. Mehta."}}, {"text": "July 5, 1960", "label": "DATE", "start_char": 3385, "end_char": 3397, "source": "ner", "metadata": {"in_sentence": "It appears that the firm was dissolved on July 5, 1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties."}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 3404, "end_char": 3409, "source": "ner", "metadata": {"in_sentence": "It appears that the firm was dissolved on July 5, 1960, when Mehta ceased to be a partner and Dinubhai appointed the appellant as counsel and attorney for filing suits and for recovering dues from various parties."}}, {"text": "Third Additional C District Judge, Indore", "label": "COURT", "start_char": 3656, "end_char": 3697, "source": "ner", "metadata": {"in_sentence": "12,500/- in the court of the Third Additional C District Judge, Indore, impleading M. C. Mehta and one Chandulal Shah as defendants in that suit."}}, {"text": "Chandulal Shah", "label": "OTHER_PERSON", "start_char": 3730, "end_char": 3744, "source": "ner", "metadata": {"in_sentence": "12,500/- in the court of the Third Additional C District Judge, Indore, impleading M. C. Mehta and one Chandulal Shah as defendants in that suit."}}, {"text": "21-4-1964", "label": "DATE", "start_char": 4258, "end_char": 4267, "source": "ner", "metadata": {"in_sentence": "110/- were mentioned as being towards \"paper book charges\" respectively on 21-4-1964 and 22-9-1964."}}, {"text": "22-9-1964", "label": "DATE", "start_char": 4272, "end_char": 4281, "source": "ner", "metadata": {"in_sentence": "110/- were mentioned as being towards \"paper book charges\" respectively on 21-4-1964 and 22-9-1964."}}, {"text": "December 8, 1967", "label": "DATE", "start_char": 4821, "end_char": 4837, "source": "ner", "metadata": {"in_sentence": "He filed a.complaint against the appellant on December 8, 1967, makmg allegations under sections 409, 468 and 4 7 4 IPC."}}, {"text": "sections 409, 468 and 4", "label": "PROVISION", "start_char": 4863, "end_char": 4886, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 4891, "end_char": 4894, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 409", "label": "PROVISION", "start_char": 4940, "end_char": 4951, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 4952, "end_char": 4955, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February 10, 1965", "label": "DATE", "start_char": 5100, "end_char": 5117, "source": "ner", "metadata": {"in_sentence": "pcl) received by the complainant on February 10, 1965."}}, {"text": "March 18, 1965", "label": "DATE", "start_char": 5349, "end_char": 5363, "source": "ner", "metadata": {"in_sentence": "26.50 was deposited as paper book charges on March 18, 1965, in the particular appeal."}}, {"text": "Kothari Book Depot", "label": "ORG", "start_char": 5771, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "300/- towards his fees in the case of Kothari Book Depot."}}, {"text": "section 409", "label": "PROVISION", "start_char": 7560, "end_char": 7571, "source": "regex", "metadata": {"statute": null}}, {"text": "section 342", "label": "PROVISION", "start_char": 8416, "end_char": 8427, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 8429, "end_char": 8452, "source": "regex", "metadata": {}}, {"text": "Suryakant", "label": "OTHER_PERSON", "start_char": 8688, "end_char": 8697, "source": "ner", "metadata": {"in_sentence": "300.00 which has occurred, bas been adjusted against my fees in Kothari Book Depot's case at the instance of Suryakant.", "canonical_name": "Surya kant"}}, {"text": "Surya kant", "label": "OTHER_PERSON", "start_char": 8766, "end_char": 8776, "source": "ner", "metadata": {"in_sentence": "Surya kant used to maintain account of Court expenses of Dinubhai's cases in a register.", "canonical_name": "Surya kant"}}, {"text": "May 16, 1967", "label": "DATE", "start_char": 9883, "end_char": 9895, "source": "ner", "metadata": {"in_sentence": "While the complaint was filed on December 8, 1967, a few months earlier on May 16, 1967, a lawyer's notice was addressed to the appellant on behalf of Dinubhai."}}, {"text": "Khan", "label": "OTHER_PERSON", "start_char": 11062, "end_char": 11066, "source": "ner", "metadata": {"in_sentence": "At the conclusion of the argument by Mr. Khan on behalf of the complainant pressing for convictioii of the appellan~, Mr.\n\nPa1_1jwani, appearing on behalf of the State, fairly enough, did not thmk it proper to support the judgment of the High Court."}}, {"text": "Pa1_1jwani", "label": "LAWYER", "start_char": 11144, "end_char": 11154, "source": "ner", "metadata": {"in_sentence": "At the conclusion of the argument by Mr. Khan on behalf of the complainant pressing for convictioii of the appellan~, Mr.\n\nPa1_1jwani, appearing on behalf of the State, fairly enough, did not thmk it proper to support the judgment of the High Court."}}]}
{"document_id": "1977_3_113_119_EN", "year": 1977, "text": "STATE OF KARNATAKA\n\nL. MUNISW AMY & ORS.\n\nMarch 3. 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nCode of C1i111inal Procedure. 1973 (Act II of 1974)-S.482 (s. 561 A of 1899 Code)-lnllerent power of the High Court to quash proceiedings at the stage of fra1ning of charges-Explained.\n\nThe appellants are accused Nos. 10, 13, 14, 15 and 17 to 20 before the Sessions Court for trial under various offences, viz., ss. 324, 326, and 307 read with s.: 34 of the Penal Code. While discharging accused Nos. 11, 1~ and 16 u/s 227 of the Criminal Procedure Code, 1973, on 8.8.1975, the learned Se~ions Judge observed that there was \"some material to hold that the remaining accused have had something to do with the incident which occurred on 6.12.1973 in I.T.I. Colony. Bangalore\" and adjourned the case to September l, 1975, \"for framing specific charges as made out from the material on record against the rest of the accused persons\".\n\nTwo revision petitions were filed anainst this order. one by accused Nos. 10. 13, 14 and 15 and the other by accused Nos. 17 to 20.\n\nThese petitions were allowed by the High Court on the view that there was no sufficient ground for proceeding against the petitioners before it.\n\nThe High\" Court accordingly quashed the proceedings in regard to them.\n\nIn appeal by Special Leave, the appellant State contended : ( 1) The High Court ought not to have exercised its power to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case. an opportunity to consider whether there was sufficient material on the record on which to frame charges against the respondents. (ii) In any event the I-ligh Court could not take upon itself the task of assessing or nppreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents.\n\nDismissin2 the appeal, the Court\n\nHELD : l 1) The High Court was justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.\n\nIt would be a sheer waste of public time and money to permit the proceedings to continue against the respondents, when there is no material on the record on '''hich any tribunal could reasonably convict them for any offence connected V.'ith the assault on the complainant.\n\nThis is one of these cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. [118 A, D-E]\n\nf2) The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a Salutary public purpose which is that a Court proceedings ought not to be permitted to degenerate into a weaoon G of harassment or persecution.\n\nIn a criminal case. the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. [117 F-G]\n\n(3) Considerations justifying the exercise of inherent powers for securing the ends of justice vary from case to case and a jurisdiction as wholesome as the one ct1nferred by s. 482 ought not to be encased within the strait-jacket of a rigid formula. The three instances cited in the Judgment in R. P. Kapoor Vs.\n\nH The State of Punjab, [1960] 3 SCR 3R8, as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the verynature of things not be regarded as exhaustive. [118 F-H, 119 Al\n\nR. P. Kapur vs. State af P1111iab [1960] 3 SCR 338 explained.\n\n(4) It is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence.\n\n[119 B]\n\n_(5) While considering whether there is sufficient ground for proceeding agai.nst an accused, the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record. if unrebutted. is such on the basis of which a conviction can be said reasonably to be possible.\n\n[119 B-E]\n\nVadilal Panchal v. D. D. Ghadigao11kar AIR 1960 SC 1113; Century Spinning & Afanufact11ri11g Co. v. State of Maharashtra ATR 1972 SC 54·5\n\napplied.\n\n. (6) In he instant case the High Court is right in its vie\\v that the matcnals on which the prosecution proposed to rely against the respondents is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complainant. [119 E-F]\n\n(7) The grievance that the High Court interfered with the Sessions Court's order prematurely is not justified. The case was adjourned by the Sessions Judge not for deciding whether any charge at all could be framed against the remaining accused, but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him. [116 G-Hl\n\n(8) The object of s. 227 of the Code of Criminal Procedure, Act 2 of 1974. is to er.able the superior Court to examine the correctness of the reasons for '.vhich the Sei.s1ons Judge has held that there is not sufficient ground for proceeding against the accused.\n\n[117 C-D]\n\n(9) The High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself ¥.-hether the order is justified by the facts and circumstances of the case.\n\n[117 D-E]\n\n(10) In the exercise of the wholesome power u/s 482 of the Act 2 of 1974 (s. 561 of 1898 Code), th& High Court is entitled to quash a proceeding if it comes to the conclusion that allo\"Vlring. the proceeding to continue \\\\ould be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. [117 E-F] Observations :\n\n\"fhe ends ot justice are higher than the ends of mere law though justice has got to be adn1inistered according to Jaws made by the legislature. Without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State\n\nand its subjects, it would be impossible to appreciate _the \\Vidth and contours of that salient jurisdiction. [117 G-H]\n\nCRJMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 345- 346 of 1976. (Appeals by Special Leave from the Judgment and Order dated 30-9-1975 of the Karnataka High Court in Cr!. Petitions Nos. 248 and 253 of 1975).\n\nD. Mookherjee, and B. R. G. K. Achar, for !he Appellant, Frank Anthony, K. B. Rohtagi and M. N.\n\nKashyap, for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J. These two apoeals bv soecial leave arise out of a judJµnent dated Septemr 30, 1975 rendered by the High Court\n\nKARNATAKA v. L. MUNISWAMY (Cha11drachud, J:) 115\n\nof Karnataka in Criminal Petitions Nos. 248 and 253 of 1975. By the aforesaid judgment the High Court in the exercise of its inherent powers has quashed proceedings initiated by the State of Karnataka, appellant herein, agamst the respondents.\n\nThe incident out of which these proceedings arise took place on December 6, 1973 in the Central Avenue of the Indian, Telephone Industries Colony, Bangalore. Thyagaraja Iyer, accused No. 1, who was an employee of the Indian Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor.\n\nThe complainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the complainant that he, the complainant, was primarily responsibfo for the dismissal and would have to answer the con, cquences: It is alleged that the LT.I. Employees' Union took up cudgels on his behalf and resolved to support his cause.\n\nThe case of the prosecution is that accused Nos. 1 andi 8 to 20 conspired to commit the murder of the complainant and; that in pursuance of that conspiracy accused Nos. I, 8 and 10 hired accused Nos. 2, a notorious criminal, to execute the object of the conspiracy. Accused No. 2 in turn engaged the services of accused Nos. 3 to 7 and eventually on the morning of December 6, 1973 accused Nos. 1 to 6 are allegett to have assaulted the complainant with knives, thereby committing offences under ss. 324, 326 and 307 read with s. 34 of the Penal Code.\n\nAccused No. 2 was charged separately under s. 307 or in the alternative under s. 326, Penal Code.\n\nBy his order dated October 23, 1974 the learned Metropolitan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code.\n\nAt the commencement, of the trial before the learned First Additional District and Sessions Judge, Bangalore, two preliminary questions were raised, one' by the prosecution and the other by the accused.\n\nIt was contended by the prosecution that the specification of particular sections in the committal order did not preclude the Sessions Court from framing a new charge under s. 120-B of the Penal Code.\n\nOn the other hand it was contended by the accused that there was no suflicient ground for proceeding with the prosecution and therefore they ought to be discharged. The learned Additional Sessions Judge accepted the contention of the prosecution that he had the power to frame a charge under s. 120-B. The correctness of that view was not challenged before us by Mr. Frank Anthony who appears on behalf of the accused. that is as it ought to be because the power of the Sessions Court to frame an appropriate charge is not trammelled by the specifications contained in the committal order. The Sessions Court, being seized of the case, has jurisdiction to frame appropriate charges as the facts may justtty or the circumstances may warraut.\n\nThe contention of the accused that they ought to he discharged was accepted by the learned Additional Sessions Judge partly.\n\nHe held that there was no case against accused Nos. 11, 12 and 16 and that\n\nthey were therefore entitled to be discharged.\n\nBy an order dated August 8, 1975 the learned Judge discharged those three accused in the. exercise o~ his, powers under' s. 227 of the Code of Criminal Procedure, 1973. We are informed that the correctness of that order is under challenge before the High Court in a proceeding taken by the State of Karnataka. We are not concerned with that order in thr, se appeals.\n\nAfter discharging accused, Nos. 11, 12 and 16 the learned Judge, turning to the case against the remaining accused, observed that there was \"some material to hold that they have had somethipg to do with the incident which occurred on 6-12-1973 in the LT.I.\n\nColony Bangalore\".\n\nThe learned Judge adjourned the case to September 1, 1975 \"for framing specific charges as made out from the material on record against the rest of the accused persons.\"\n\nTwo revision petitions were filed against this order, one by accused Nos. 10, 13, 14 and 15 and the other by accused Nos. 17 to 20. Those petitions were allowed by the High Court on the view that there was no sufficient ground for proceeding against the petitioners before it. The High Court accordingly quashed the proceedings in regard to them which has led to these appeals.\n\nMr. Mookerjee who appears on beha\\.f of the State of Karnataka contends that the High Court ought not to havei exercised its powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against ihe respondents. It is argiiedl that the Sessions Court had adjourned the case for a consideration of that very question and it was not proper for the High Court to withdraw the case, as it were, and to exercise its extraordinary powers, thereby preventing the Trial Court from examining the sufficiency of the material which it is the primary duty and function of that Court to examine.\n\nThere is some apparent justification for this grievance because the language in which the Sessions Court couched its order would seem to suggest that it had adjourned the case to September 1, 1975 for consideration of the question as to whether there was sufficient ground for proceeding against the respondents.\n\nBut a careful reading of the Sessions Court's judgment would reveal that while discharging accused Nos. 11, 12 and 16 it came to the conclusion. that insofar as the other accused were concerned there was some material to hold that they were connected with the incident.\n\nThe case was, therefore, adjourned by the Court for framing specific charges against them. In other words, the learned Judge adjourned the case not for deciding whether any charge at all could be framed against the remaining accused but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him.\n\nThe grievance therefore that the High Court interfered with the Sessions Court's order prematurely iS not justified.\n\nThe second limb of Mr. Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So\n\nKARNATAKA v. L. MUNISWAMY (Chandrachud, J.) I Ii\n\nlong as there is some material on the record to connect the accused with the crime, says, the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept.\n\nSection 227 of the Code of Criminal Procedure, 2 of 1974, provides that:\n\n\"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.\" This section. is contained in Chapter XVIII called \"Trial Before a Court o~ Sessions\". It is cleat from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties be comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record bis reasons is to enable the superior court to examine thel correctness Qf the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding agamst the accused. The High Court therefore is ntitled to go into the reasons given by the Sessions Judge in support of his order and to determine for. itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to s. 561-A of the Code of 1898, provides that:\n\n\"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may he necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.\" In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse o~ the process of the Court or that the ends of justice require that the proceeding ought to be quashed.\n\nThe saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to Jaws made by the legislature.\n\nThe compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the Hi?h Court to dQ justice between the State and its subjects, it would be impossible to appreciate the width arid contours of that salient jurisdiction.\n\nLet us thellj turn to the facts of the case to see; whether the High Court was justified in holding that the proceedings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to..secure the ends of justice. We asked the State counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicated. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever, skilfully one may attempt to weave those bits into a presentable whole.\n\nThere is no material on the record on whlch any tribunal could reasonably convict; the respondents for any offence connected with the assault on the complainant. It is undisputed that the respondents\n\nwere nowhere near the scene of offence at the time of the assault.\n\nWhat is alleged against them is. that they had conspired to c.ommit that assault.\n\nThls, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. we have been taken through the statements recorded b, Y the police during the course of investigation and the other materiaL The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circmnstances, it woul.d be a sheer waste of public time and money to permit the proceedings to continue against thei respandents.\n\nThe High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.\n\nLearned counsel for the State Govermnent relies upon a decision of this Court in R. P. Kapur v. The State of Punjab(') in whlch it was held that in the exercise of its inherent jurisdiction under s. 561A of the Code o[ 1898, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not That may be so. But in the instant case the question is not whether any reliance can be placed on the veracity of this or that particular witness. The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution.\n\nGajendragadkar, J., who spoke for the Court in Kapur's(1) case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the Hieh Court's inherent jurisdiction.\n\nThe three instances cited in the judgment as to when tl1e High Court would be justified in exercising its inherent iurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive.\n\nConsiderations jnsti{ying the exercise of inherent powers for securing the ends of justice naturally vary from case to\n\n(l) [1960] 3 S.C.R. 388\n\nKARNATAKA v. L. MUN!SWAMY (Chandrachud, J.) 119\n\ncase and a jurisdiction as wholesome as the one conferred by s. 482 ought not to be encased within the strait-jacket of a rigid formula.\n\nOn the other hand, the decisions cited by learned counsel for the respondents in V adi/al Panchal v. D. D. Ghadigao11ki1r( ') and Centwy Spinning & Manufacturing Co. v. State of Maharashtra(') show that it is wrong to say that at the stage of framing charges the court <:annot apply its judicial mind to the consitleration whether or not there is any ground for presuming the commission of the offence by the accused.\n\nAs observed in the latter case, the order framing a charge affects a person's liberty sub&tantially r.ntl therefore it is the duty of the court to consider judicially whethe~ the material warrants !he framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked Lo face a trial.\n\nIn Vadi/al Panchal's case (supra) section 203 of the old Code was under consideration, whichJ provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by th.is Court, while considering the true scope of s. 203 of the old Code that the Magistrate was not bo.und to accept the result of :rn enquiry or investigation an_d that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accu>ed the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to lie possible.\n\nWe arc therefore in agreement with the view of the High. Court that the material on which the prosecution proposes to rely against the respondents is wholly inadequate to sustain the charge that they arc in any manner connected with the assault on the complainant. We would, however, like to observe that nothing in our judgment or in the judgment of the High Court should be taken as detracting from the case of the prosecution, to which we have not applied our mind, as against accused Nos. 1 to 9. The case against those accused must take its due and lawful course.\n\nThe appeals are accordingly dismissed.\n\nS.R.\n\n(!)A.LR. 1960 S.C. l 113.\n\n(2) A.I.R. 1972 S.C. 545. 9-241lSCT 177\n\nAppeals dismissed", "total_entities": 70, "entities": [{"text": "STATE OF KARNATAKA", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "STATE OF KARNATAKA", "offset_not_found": false}}, {"text": "L. MUNISW AMY & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "L. MUNISWAMY & ORS", "offset_not_found": false}}, {"text": "March 3. 1977", "label": "DATE", "start_char": 42, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "March 3."}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 58, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 77, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "S.482", "label": "PROVISION", "start_char": 169, "end_char": 174, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 561", "label": "PROVISION", "start_char": 176, "end_char": 182, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 324, 326", "label": "PROVISION", "start_char": 429, "end_char": 441, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 475, "end_char": 485, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s 227", "label": "PROVISION", "start_char": 534, "end_char": 539, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code, 1973", "label": "STATUTE", "start_char": 547, "end_char": 576, "source": "regex", "metadata": {}}, {"text": "8.8.1975", "label": "DATE", "start_char": 581, "end_char": 589, "source": "ner", "metadata": {"in_sentence": "11, 1~ and 16 u/s 227 of the Criminal Procedure Code, 1973, on 8.8.1975, the learned Se~ions Judge observed that there was \"some material to hold that the remaining accused have had something to do with the incident which occurred on 6.12.1973 in I.T.I. Colony."}}, {"text": "6.12.1973", "label": "DATE", "start_char": 752, "end_char": 761, "source": "ner", "metadata": {"in_sentence": "11, 1~ and 16 u/s 227 of the Criminal Procedure Code, 1973, on 8.8.1975, the learned Se~ions Judge observed that there was \"some material to hold that the remaining accused have had something to do with the incident which occurred on 6.12.1973 in I.T.I. Colony."}}, {"text": "Bangalore", "label": "GPE", "start_char": 780, "end_char": 789, "source": "ner", "metadata": {"in_sentence": "Bangalore\" and adjourned the case to September l, 1975, \"for framing specific charges as made out from the material on record against the rest of the accused persons\"."}}, {"text": "s. 482", "label": "PROVISION", "start_char": 3207, "end_char": 3213, "source": "regex", "metadata": {"statute": null}}, {"text": "[1960] 3 SCR 3", "label": "CASE_CITATION", "start_char": 3369, "end_char": 3383, "source": "regex", "metadata": {}}, {"text": "[1960] 3 SCR 338", "label": "CASE_CITATION", "start_char": 3613, "end_char": 3629, "source": "regex", "metadata": {}}, {"text": "AIR 1960 SC 1113", "label": "CASE_CITATION", "start_char": 4240, "end_char": 4256, "source": "regex", "metadata": {}}, {"text": "s. 227", "label": "PROVISION", "start_char": 5033, "end_char": 5039, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 5047, "end_char": 5073, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s1", "label": "PROVISION", "start_char": 5185, "end_char": 5187, "source": "regex", "metadata": {"statute": null}}, {"text": "s 482", "label": "PROVISION", "start_char": 5559, "end_char": 5564, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 561", "label": "PROVISION", "start_char": 5587, "end_char": 5593, "source": "regex", "metadata": {"statute": null}}, {"text": "D. Mookherjee", "label": "OTHER_PERSON", "start_char": 6528, "end_char": 6541, "source": "ner", "metadata": {"in_sentence": "D. Mookherjee, and B. R. G. K. Achar, for !"}}, {"text": "B. R. G. K. Achar", "label": "OTHER_PERSON", "start_char": 6547, "end_char": 6564, "source": "ner", "metadata": {"in_sentence": "D. Mookherjee, and B. R. G. K. Achar, for !"}}, {"text": "Frank Anthony", "label": "OTHER_PERSON", "start_char": 6585, "end_char": 6598, "source": "ner", "metadata": {"in_sentence": "he Appellant, Frank Anthony, K. B. Rohtagi and M. N.\n\nKashyap, for the Respondents."}}, {"text": "K. B. Rohtagi", "label": "LAWYER", "start_char": 6600, "end_char": 6613, "source": "ner", "metadata": {"in_sentence": "he Appellant, Frank Anthony, K. B. Rohtagi and M. N.\n\nKashyap, for the Respondents."}}, {"text": "M. N.\n\nKashyap", "label": "LAWYER", "start_char": 6618, "end_char": 6632, "source": "ner", "metadata": {"in_sentence": "he Appellant, Frank Anthony, K. B. Rohtagi and M. N.\n\nKashyap, for the Respondents."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 6700, "end_char": 6711, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J. These two apoeals bv soecial leave arise out of a judJµnent dated Septemr 30, 1975 rendered by the High Court\n\nKARNATAKA v. L. MUNISWAMY (Cha11drachud, J:) 115\n\nof Karnataka in Criminal Petitions Nos."}}, {"text": "State of Karnataka", "label": "ORG", "start_char": 7059, "end_char": 7077, "source": "ner", "metadata": {"in_sentence": "By the aforesaid judgment the High Court in the exercise of its inherent powers has quashed proceedings initiated by the State of Karnataka, appellant herein, agamst the respondents."}}, {"text": "December 6, 1973", "label": "DATE", "start_char": 7186, "end_char": 7202, "source": "ner", "metadata": {"in_sentence": "The incident out of which these proceedings arise took place on December 6, 1973 in the Central Avenue of the Indian, Telephone Industries Colony, Bangalore."}}, {"text": "Thyagaraja Iyer", "label": "PETITIONER", "start_char": 7280, "end_char": 7295, "source": "ner", "metadata": {"in_sentence": "Thyagaraja Iyer, accused No."}}, {"text": "Indian Telephone Industries Ltd.", "label": "ORG", "start_char": 7339, "end_char": 7371, "source": "ner", "metadata": {"in_sentence": "1, who was an employee of the Indian Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor."}}, {"text": "September 20, 1973", "label": "DATE", "start_char": 7402, "end_char": 7420, "source": "ner", "metadata": {"in_sentence": "1, who was an employee of the Indian Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor."}}, {"text": "Ajit Dutt", "label": "PETITIONER", "start_char": 7500, "end_char": 7509, "source": "ner", "metadata": {"in_sentence": "The complainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the complainant that he, the complainant, was primarily responsibfo for the dismissal and would have to answer the con, cquences: It is alleged that the LT.I. Employees' Union took up cudgels on his behalf and resolved to support his cause."}}, {"text": "LT.I. Employees' Union", "label": "ORG", "start_char": 7793, "end_char": 7815, "source": "ner", "metadata": {"in_sentence": "The complainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the complainant that he, the complainant, was primarily responsibfo for the dismissal and would have to answer the con, cquences: It is alleged that the LT.I. Employees' Union took up cudgels on his behalf and resolved to support his cause."}}, {"text": "ss. 324, 326 and 307", "label": "PROVISION", "start_char": 8378, "end_char": 8398, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 8409, "end_char": 8414, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8422, "end_char": 8432, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 307", "label": "PROVISION", "start_char": 8478, "end_char": 8484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326", "label": "PROVISION", "start_char": 8513, "end_char": 8519, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8521, "end_char": 8531, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "October 23, 1974", "label": "DATE", "start_char": 8553, "end_char": 8569, "source": "ner", "metadata": {"in_sentence": "By his order dated October 23, 1974 the learned Metropolitan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code."}}, {"text": "Metropolitan Magistrate, V Court, Bangalore", "label": "COURT", "start_char": 8582, "end_char": 8625, "source": "ner", "metadata": {"in_sentence": "By his order dated October 23, 1974 the learned Metropolitan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code."}}, {"text": "s. 324, 326 and 307", "label": "PROVISION", "start_char": 8719, "end_char": 8738, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 8749, "end_char": 8754, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8762, "end_char": 8772, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "First Additional District and Sessions Judge, Bangalore", "label": "COURT", "start_char": 8828, "end_char": 8883, "source": "ner", "metadata": {"in_sentence": "At the commencement, of the trial before the learned First Additional District and Sessions Judge, Bangalore, two preliminary questions were raised, one' by the prosecution and the other by the accused."}}, {"text": "s. 120", "label": "PROVISION", "start_char": 9152, "end_char": 9158, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 9168, "end_char": 9178, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 120", "label": "PROVISION", "start_char": 9473, "end_char": 9479, "source": "regex", "metadata": {"statute": null}}, {"text": "August 8, 1975", "label": "DATE", "start_char": 10191, "end_char": 10205, "source": "ner", "metadata": {"in_sentence": "By an order dated August 8, 1975 the learned Judge discharged those three accused in the."}}, {"text": "s. 227", "label": "PROVISION", "start_char": 10294, "end_char": 10300, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 10308, "end_char": 10340, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "6-12-1973", "label": "DATE", "start_char": 10775, "end_char": 10784, "source": "ner", "metadata": {"in_sentence": "11, 12 and 16 the learned Judge, turning to the case against the remaining accused, observed that there was \"some material to hold that they have had somethipg to do with the incident which occurred on 6-12-1973 in the LT.I.\n\nColony Bangalore\"."}}, {"text": "September 1, 1975", "label": "DATE", "start_char": 10859, "end_char": 10876, "source": "ner", "metadata": {"in_sentence": "The learned Judge adjourned the case to September 1, 1975 \"for framing specific charges as made out from the material on record against the rest of the accused persons.\""}}, {"text": "Mookerjee", "label": "OTHER_PERSON", "start_char": 11373, "end_char": 11382, "source": "ner", "metadata": {"in_sentence": "Mr. Mookerjee who appears on beha\\.f of the State of Karnataka contends that the High Court ought not to havei exercised its powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against ihe respondents."}}, {"text": "Karnataka", "label": "GPE", "start_char": 11422, "end_char": 11431, "source": "ner", "metadata": {"in_sentence": "Mr. Mookerjee who appears on beha\\.f of the State of Karnataka contends that the High Court ought not to havei exercised its powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against ihe respondents."}}, {"text": "Section 227", "label": "PROVISION", "start_char": 13866, "end_char": 13877, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13885, "end_char": 13911, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 482", "label": "PROVISION", "start_char": 15125, "end_char": 15136, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 561", "label": "PROVISION", "start_char": 15175, "end_char": 15181, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 561A", "label": "PROVISION", "start_char": 18970, "end_char": 18977, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 19486, "end_char": 19500, "source": "ner", "metadata": {"in_sentence": "Gajendragadkar, J., who spoke for the Court in Kapur's(1) case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the Hieh Court's inherent jurisdiction."}}, {"text": "[1960] 3 S.C.R. 388", "label": "CASE_CITATION", "start_char": 20074, "end_char": 20093, "source": "regex", "metadata": {}}, {"text": "s. 482", "label": "PROVISION", "start_char": 20205, "end_char": 20211, "source": "regex", "metadata": {"statute": null}}, {"text": "Vadi/al Panchal", "label": "OTHER_PERSON", "start_char": 21029, "end_char": 21044, "source": "ner", "metadata": {"in_sentence": "In Vadi/al Panchal's case (supra) section 203 of the old Code was under consideration, whichJ provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case."}}, {"text": "section 203", "label": "PROVISION", "start_char": 21060, "end_char": 21071, "source": "regex", "metadata": {"statute": null}}, {"text": "section 227", "label": "PROVISION", "start_char": 21327, "end_char": 21338, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 203", "label": "PROVISION", "start_char": 21489, "end_char": 21495, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_120_124_EN", "year": 1977, "text": "STATE OF U.P. & OTHERS\n\nM/S. INDIAN HUME PIPE CO. LTD.\n\nMarch 3, 1977 [P. N. BHAGWATI AND S. MURTAZA FAZAL Au, JJ.] B lonsriturion of India-Article 136-Practice of Suprenu' Court-Interfec\n\nrence with d1.scretio11ary orders of High Court-Article 226___..:..WJiether Hif;:/1 C'ourl should interfere-Alternative ren1edies.\n\nI nterprt'/ation-A rticles used for business purposes-Whether in co1nn1ercial sense-U.P. Sales Tax Act-Meaning of sanitary fittings.\n\nThe respondent manufactures and sells hume pipes and high quality an<l high pressure pipes.\n\nThe pipes are reinforced concrete pipes.\n\nThe U.P. (Joycrnment issued a notification under the U.P. Sales Tax Act providing that\n\n\"sanitary fittings\" were to be taxed -at 7 per cent instead of 2 per cent.\n\nThe Sales Tax Officer treated hume pipes supplies by the respondent as sanitary fittings and imposed sales tax @ 7 per cent. The respondent filed a writ petition in the High Court as.sailing the order of the Sales Tax Officer on the ground that the humc pipes manufactured by the asscssee could not by any stretch of imagination be construed to be sanitary fittings nor \\Vere they ever used as such.\n\nThe High Court after perusing the materials on record and hearing counslaccepted the ple.'l of the respondent and held that the hume pi:ics could not be treated as sanitary ticting~.\n\nThe High Court accordingly quashed the assessment made by the Sale.s Tax Officer.\n\nThe respondent also filed certificates of Locn! Self Government Engineering Department, U.P. to show that the pipes supplied by the respondent were not used as sanitary fittings.\n\nThe aid certificate has been signed by the Executive Engineer on behalf of the chief Engineer of the deparl1nent.\n\nIn an appeal by certificate the appellant contended :\n\n( 1) Jii.i;:h Court should not have entertained the writ petition and snould have allov.ed the assessee to avail of the remedies provided to him unJer the U.P. Sales Tax Act particularly when question of fact had to be determined.\n\n(2) On merits the conclusion of the Hill:h\n\n3re not sanitary fitdngs is erroneous. by cc1 tificatc.\n\nCourt that hume pipes Dismissing the appeal\n\nHeld : ( 1) The Court ne&ative.d the contention of the appellant that the High Court ought not to have entertained the writ petition <ind should have allowed the assessee to avail of the remedies provided to him under the U.P. Sales \"fax Act.\n\nIn the present case, whether the hume pipes manufactured and sold by the respondent were sanit; iry fittings was a question of.Jaw and\n\nsince tbe entice material on the basis of , vhich this question could be determined was placed be.fore the Sales Tax Officer and had pointed in one and only one direction, nan1ely, that the hume pipes were not sanitary fittings and there wai;\n\nnothing to show otherwise, the High Court was justified in entertairiing the , vrit petition.\n\nThere is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party.\n\nJt is ahvays a matter of discretion and if the discretion has not been exercised by the HiJ;?; h Court unreasonably or perversely, it is the settled practice of this Court not to interfere y, ith the exercise of discretion by the High Court.\n\nJn these circumstances this Court would not be justified in the interest of justice to intedere under Article 136 of the Constitution to quash the order of the High Court merely on that ground after having found that the order was legaUy correct.\n\n[124 BE]\n\n(2) It is \"ell-settled that in construcinathe articles used for bu:!!ines!. pur poses the terms must be interpreted in a prnely commercial sens1~. [123 BCl\n\nU.P. v. INDIAN HUME PIPE (Fazal Ali, J.) 121\n\nRan1avatar Budhaiprasad etc. v. Assistant Sales Tax Officer. Ako/a (1962) A SCR 279. 282. followed.\n\nThe King v. Planters Nut and Chocolate Company Ltd., (1951) Canada L.R. Ex. Court 122. 126 approved.\n\nSo construed, by sanitary fittings one only understands such pipes or materials as are used in lavatories, urinals or bath rooms of private houses or public butld1t:il,!S.\n\nIn the present case there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and B sold by the rc5pondent were meant for use in lavatories, urinals or bath rooms and, in fact, the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings.\n\n[123 F-H]\n\n(3) The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why hume pipes could be treated as sanitary fittings.\n\nThe respondent had filed an application before the Sales Tax Olf!ccr v.herein he had clearly alleged substantial facts showing that the hume C pipes could nt..vcr be used as sanitary fittings; that it is only the G.l.P. Pipes or other }\\inds of pipes wJ.iich are used in lavatories, uninals and bath rooms v.hich could be termed as sanitary fittings.\n\nThe respondent had placed a large catena of materials in the shape of certificates from technical expert<;,\n\nengineers and highly reputed dealers in sanitary fittings that hume pipes are never used as sanitary fittin1rs.\n\nEven where a hume pipe is used for carrying the escrated material from the Commode to the Sceptio tank that may be treated as sanitary fittings.\n\nThe appellant in hiS counter affidavit before the High Court did not controvert any of the facts mentioned by the respondent.\n\nD The State produced no material to controvert the facts. (122 D~G-123A]\n\n( 4) \"fhe Court observed that if at any time the material _produced before the Sales Tax Authorities establishes that in a given case hume pipes were meant to be used in the bath rooms, urinals and lavatories etc., then the notification of the Government would be attracted. [124 A-B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 784 of 1972. (From the Judgment and Order dated 29-9-1970 of the Allahabad High Court in Civil Misc. Writ No. 1111 /70).\n\nS. C. Manchanda and 0. P. Rana, for the appellants.\n\nS. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.\n\nVeena Devi Khanna, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.\n\nThis appeal by certificate raises a short question of law as to whether or not hume pipes which are the subject-matter of the present case amount to \"sanitary fittings\" as contemplated by a notification issued by the Government under the U.P. Sales Tax Act.\n\nThe respondent is a dealer engaged in the manufacture and supply G of hume pipes. The pipes manufactured by the respondent are reinforced with cement concrete pipes and the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply, R.C.C. pressure pipes, penstock pipes used in hydro-electric projects etc. The respondent was a supplier of pipes to various Governmental Departments both Central and State, such as Irrigation, Public Works, Local Self Government Engineering, Railways H and Ministry of Petroleum etc. It appears that a dispute arose between the respondent and the Sales Tax Department with respect to the\n\nrate of tax for sale of pipes manufactured by the respondent for tbe assessment years 1962-63, 1963-64 and 1964-65.\n\nAccording to the notification issued by the Government in pun; uance oJl the U.P. Sales Tax Act, items classed as \"sanitary fittings\" were to be taxed a.t 7 % instead of 2 % . The Sales Tax Officer treated the hume pipes supplied by the respondent as \"sanitary fittings\" and imposed sales tax al the rate of 7 % . Instead ot going in appeal to the Assistant Conunissioner (Judicial) tbe respondent filed a writ petition in the High Omrt assailing the order of the Sales Tax Officer on the ground that the home pipes manufactured by the assessee could not, by any stretch of imagination, be construed to be \"sanitary fittings\", nor were they ever used as such. The High Court, after hearing counsel for the parties and after perusing the materials on the record, accepted the plea of the rc5pondent and held that the hume pipes could not be treated as \"sanitary fittings\" and the Sales Tax Officer was, therefore, not eutlt!W to levy tax at the rate of 7%. The High Court accordingly quashed the assessments made by the Sales Tax Officer and hence this appeal by the Department after obtaining a certificate from the High Court.\n\nJn our opinion, the tacts of this appeal lie within a very; 1mrrow compass. The only point which arises for considemtion is whether or not the home pipes manufactured by the respondent could he said to be \"sanitary fittings\".\n\nThe notification dated September 1, l 966 amended the existing entry as \"sanitary goods and fittings\" but in Viese assessment years we are concerned with the entry as it stood unamended. The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why home pipes could he treated as sanitary fittings.\n\nApart from his ipsi dixit that home pi1'es amounted to sanitary fittings, he based his order on no other matenal.\n\nThe respondent had filed an application before the Sales Ta.~ Ollicer wherein he had clearly alleged substantial facts showing tl1at the btunc pipes could nevet' be used as \"sanitary fittings\". It is only the O.I. pipes or other kinds of pipes which are used in lavatories., urinals and bath-rooms which can be termed as \"sanitary fittings\". Neither the contract nor the, tender by the respondent show the exact use for which the hume pipes were meant. On the other hand the respondent had produced a large catena of materials in the shape of certificates from fechn.ical experts, Engineers and highly reputed dealers in •anitary fittings to show that hume pipes are never nsed as sanitary fittings.\n\nIn spite of these materials, the State, when it filed it~ counter-affidavit before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4, 5 and 6 of the counter-affidavit filed before the High Court.\n\nThe materials consist of certificates by Local Self Government Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as \"sanitary fittings\". This certificate appears at p. 34 of the Paper Book and shows that R.C.C. !Pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the Department. From pp. 36-39 and 41 of the Paper Book appear the certificates given by certain reputed dealers in sanitary r, oods and fittings, who have categorically certified that the hume pipes are nver\n\nU.P. V. INDIAN HUME PIPE (Faza/ A/i, J.) 123\n\nrcrognised as sanitary-wares or sanitary fittings.\n\nAs against this, the State produced no materials to controvert these facts, which could not be brushed aside. At p. 40 there is a certificate by the Ex. Special Engineer, Bombay Municipal Corporation and Ex. Director, Central PubliC Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitarywares and sanitary fittings are applicabk\n\nto fittings used in the household for W .C.S., wash-basins, traps, sinks etc. and, therefore, hume and R.C.C. pi~ cannot be recognised a~ sanitary-wares or1 sanitary fittings.\n\nAs against this, the State produced no material to controvert these facts.\n\nIt is well settled that when we are dealing with the articles used for buslnes.s purposes, the terms must be interpreted in a purely commercial sense. In Ramavatar Budhaiprasad ttc. v. Assistant Sales Tax Of!ica, A kola ( ') this Court, while construing the import of the word \"veget>tbles\", observed M follows :\n\n\"But this word must be construed not in any technical sense nor from tho botanical point of view but as under>tood in common parlance. It has not been defined in the Act and\n\nbeing a word of every day use it must be construed in its popular sense meaning \"that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.\" It is to be construed as understood in common language;\"\n\nTo the same effect is a docisi-On of the Exchequer Court of Canada in\n\nThL King .v. Planters Nut and Chocolate Company limited('), where the Court observed as follows :\n\n\"The words ''fruit\" and \"vegetable\" are not defined in the Act and so far as 'I am aware they are not defined in any other Act in pari materia. They are ordinary words in every-day use and are therefore to be construed according to their popular sonse\".\n\nTn these circumstances, therefore, we have to construe the expression \"sarlitary fittings\" in the popular sense of the tenn as it is used in our every-day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or humc pipes which are generally\n\nlaid underground and aro extremely heavy, for the purpore of use in lava!oOO, urinals or bath-rooms etc. By \"sanitary fittings\" we only\n\ntmderstand such pipes or materiahl as are used in lavatories, urinals or bath-rooms of private houses or public buildings.\n\nEven where a hnme pipe is used for carryinp; tho ascreted material from the commode to the 11eptic tank that mav be treated as sanitary fittings. In the instant care QS there was absolutely no matorial before the Sales Tax Officer tn show that any cl the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bath-rooms and ill fact the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings.\n\n(1) [1962) I S.C.R. 279, 282.\n\n(2) (1951) Canada L.R. Ex. Court 122 126\n\nOf course, we must make it clear that if at any time the material produced before the Sales Tax authorities establishes that in a .given case the hume pipes were meant for use in a bathroom, lavatory, urinal etc .. then the notification of the Government would attracted and the assessee must be liable to be taxed at the rate of 7 % . ·\n\nLastly, it was feebly argued by Mr. Manchanda that the High Court ought not to have entertained the writ petition and should have allowed 'the assessee to avail of the remedies provided to him under the U .P. Sales Tax Act, particularly when questions of fact had to be determined. In the instant case, the question as to what is the true Connotation of the words \"sanitary fittings\" and whether the hume pipes manufactured and sold by the respondent were sanita!Cy fittings within the meaning of that expression was a question of law and sinco the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settkd practice .of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly.\n\nIn these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under Art. 136 of the Constitution to quash the order of the High Court merely on this ground after having found that the order is legally correct.\n\nWe are, therefore, unable to accept this contention.\n\nFor these reasons, therefore, we find ourselves in con1plete agreement with the view taken by the High Court and affinri the same. The result is that the appeal fails and is accordingly dismissed with costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 31, "entities": [{"text": "STATE OF U.P. & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. & OTHERS", "offset_not_found": false}}, {"text": "S. INDIAN HUME PIPE CO. LTD.", "label": "RESPONDENT", "start_char": 26, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "M/S. INDIAN HUME PIPE CO. LTD", "offset_not_found": false}}, {"text": "March 3, 1977", "label": "DATE", "start_char": 56, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "March 3, 1977 [P. N. BHAGWATI AND S. MURTAZA FAZAL Au, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 71, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "Article 136", "label": "PROVISION", "start_char": 140, "end_char": 151, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 237, "end_char": 248, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 410, "end_char": 423, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 648, "end_char": 661, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 1932, "end_char": 1945, "source": "regex", "metadata": {}}, {"text": "Article 136", "label": "PROVISION", "start_char": 3349, "end_char": 3360, "source": "regex", "metadata": {"statute": null}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 3688, "end_char": 3697, "source": "ner", "metadata": {"in_sentence": "pur poses the terms must be interpreted in a prnely commercial sens1~. [123 BCl\n\nU.P. v. INDIAN HUME PIPE (Fazal Ali, J.) 121\n\nRan1avatar Budhaiprasad etc.", "canonical_name": "Fazal Ali"}}, {"text": "29-9-1970", "label": "DATE", "start_char": 5924, "end_char": 5933, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated 29-9-1970 of the Allahabad High Court in Civil Misc."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5941, "end_char": 5961, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated 29-9-1970 of the Allahabad High Court in Civil Misc."}}, {"text": "S. C. Manchanda", "label": "OTHER_PERSON", "start_char": 5998, "end_char": 6013, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": ". P. Rana", "label": "LAWYER", "start_char": 6019, "end_char": 6028, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 6051, "end_char": 6062, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.\n\nVeena Devi Khanna, for the respondent."}}, {"text": "S. V. Vaidya", "label": "LAWYER", "start_char": 6064, "end_char": 6076, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.\n\nVeena Devi Khanna, for the respondent."}}, {"text": "K. Rajendra Chaudhary", "label": "LAWYER", "start_char": 6078, "end_char": 6099, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.\n\nVeena Devi Khanna, for the respondent."}}, {"text": "Veena Devi Khanna", "label": "LAWYER", "start_char": 6110, "end_char": 6127, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, S. V. Vaidya, K. Rajendra Chaudhary and Mrs.\n\nVeena Devi Khanna, for the respondent."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 6194, "end_char": 6202, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL Au, J.\n\nThis appeal by certificate raises a short question of law as to whether or not hume pipes which are the subject-matter of the present case amount to \"sanitary fittings\" as contemplated by a notification issued by the Government under the U.P. Sales Tax Act.", "canonical_name": "Fazal Ali"}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 6451, "end_char": 6464, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 7345, "end_char": 7358, "source": "regex", "metadata": {}}, {"text": "September 1, l 966", "label": "DATE", "start_char": 8642, "end_char": 8660, "source": "ner", "metadata": {"in_sentence": "The notification dated September 1, l 966 amended the existing entry as \"sanitary goods and fittings\" but in Viese assessment years we are concerned with the entry as it stood unamended."}}, {"text": "L.S.G.E. Department", "label": "ORG", "start_char": 10360, "end_char": 10379, "source": "ner", "metadata": {"in_sentence": "Pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department."}}, {"text": "U.P. V. INDIAN HUME PIPE", "label": "JUDGE", "start_char": 10679, "end_char": 10703, "source": "ner", "metadata": {"in_sentence": "36-39 and 41 of the Paper Book appear the certificates given by certain reputed dealers in sanitary r, oods and fittings, who have categorically certified that the hume pipes are nver\n\nU.P. V. INDIAN HUME PIPE (Faza/ A/i, J.) 123\n\nrcrognised as sanitary-wares or sanitary fittings."}}, {"text": "Bombay Municipal Corporation", "label": "ORG", "start_char": 10948, "end_char": 10976, "source": "ner", "metadata": {"in_sentence": "Special Engineer, Bombay Municipal Corporation and Ex."}}, {"text": "Central PubliC Health Engineering Research Institute, Nagpur", "label": "ORG", "start_char": 10995, "end_char": 11055, "source": "ner", "metadata": {"in_sentence": "Director, Central PubliC Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitarywares and sanitary fittings are applicabk\n\nto fittings used in the household for W .C.S., wash-basins, traps, sinks etc."}}, {"text": "Exchequer Court of Canada", "label": "COURT", "start_char": 12185, "end_char": 12210, "source": "ner", "metadata": {"in_sentence": "It is to be construed as understood in common language;\"\n\nTo the same effect is a docisi-On of the Exchequer Court of Canada in\n\nThL King .v."}}, {"text": "Manchanda", "label": "OTHER_PERSON", "start_char": 14075, "end_char": 14084, "source": "ner", "metadata": {"in_sentence": "Lastly, it was feebly argued by Mr. Manchanda that the High Court ought not to have entertained the writ petition and should have allowed 'the assessee to avail of the remedies provided to him under the U .P. Sales Tax Act, particularly when questions of fact had to be determined."}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 14248, "end_char": 14261, "source": "regex", "metadata": {}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 15570, "end_char": 15578, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_125_131_EN", "year": 1977, "text": "NATIONAL CO. LTD. CALCUTTA\n\nDEPUTY DIRECTOR OF TAX CREDIT (EXPORTS)\n\nCALCUTTA & ORS.\n\nMarch 3, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J\n\nTax Credit Ce1tificate (Exports) Schenie 1965-Scheme providing for cer- .tain categories of goods or 1nerchandise specified in column 2 whiclz were f'X]>orted after 28-2-1965 to destinations specified in colun1n 4--Scherne a111c11ded by Notification dated 6-6-1966 disentitling an exporter to tdx credit certificate in respect of goods or n1erc/landise exported and the sale proceeds therefor were receiied after 5-6-1966-Second Notification amending the first one providing for grant of tax credit ci?rtificate in respect of goods exported on or before 5-6-1966 even if the sale proceeds WPre received thereafter-H,.het!1er the Notifications ultra vires the powers of the Central Government vested under\n\n~. 280 ZE read with 280 ZC of the lnconze Tax Act.\n\nThe jute carpet 'backing cloth manufactured by the appellant in its , jute mills and exported was covered by Item 1 in column 2 which specified \"goods made of jute not otherwise specified\" of the Table appended to the Tax Credit Certificate (Exports) Scheme, 1965. The notification issued by the Central Government in exercise of the powers vested under s. 280ZE read with S. 280ZC, dated 6-6-1966 and 8-8-1966, provided that no tax credit certificnte shall be issued in respect of any goods exported after 5-6-1966. The appellant, who exported diverse quantities of jute carpet backing cloth .manufactured by it to various countries during the period 13-7-1966 and 30-11-1966, filed a writ petition in the Calcutta High Court for a writ of niandarnus for quashing and setting aside both the Notifications and directing the Central {]overnment to consider the application of the applicant for tax credit certificate in respect of the exports without taking into account the t\\-vo Notifications.\n\nThe ground of challenge was that the twO Notificatioris \\Vere outside. the powers conferred on the Central Government u/ s 280ZE read with S. 280 ZC, since the Central Government had no power under those sections to make\n\n11 scheme providing that no tax credit certificate shall be granted in case of any goods or merchandise at all. The single Judge granted mandan1us. hot the Division Bench on appeal took a different view and negatived the challenge.\n\nDismissing the appeal by certificate the Court,\n\nHELD : (i) The Division Bench of the High Court was right in holdlng that the Central Government was entitled to issue the two Notifications directing that no tax credit certificates sha11 be granted in respect of goods or merchandise exported on or after 5-6-1966. [131 AB]\n\n(ii) No obligation can be spelt out from Ss. 280 ZC and 280 ZE re.:iuiring the Central Government to frame a scheme specifying the goods or merchandise in respect of which tax credit certificate shall be granted. The Central Govern~ ment was entitled to say that having regard to the factors set out in subsection (3) of S. 280 ZC, it does not think it desirable that , tax credit c.:rti ficate should be granted in respect of any goods or merchandISe for the tune being.\n\n[130 FHJ\n\nC!v1L APPELLATE JURISDICTION: Civil Appeal No. 950 r:i 1972.\n\n(From the Judgment and Order dated the 5-7-1971 of the Calcutta High Court in Appeal No. 130/71) _\n\nN. R. Khaitan, A. T. Patra and Pravee11 Kumar, for the appellant.\n\nA Lal Narain Sinha, Sol. General, S. N. Prasad and Girish Clwndra\n\nnot present for respondents.\n\nThe Judgment of the Court was delivered by\n\nBllAGWATI, J. The appellant.owns a jute mill situate at Rajgunj, Railway Station Andul, District Howrah in the State of West Bengal and among other jute .products, it manufactures jute . carpet backing cloth at its jute mill. 'fhc appellant exported diverse quantities m jut~ carpet backing cloth manufactured by it to various countrie:; during the period 13th July 1966 to 30th November 1966.\n\nThere was a Tax Credit certificate Scheme framed by the Central Government under Section 280 ZE read with Section 200 ZC of the Income Tux Act l 962.\n\nThe Scheme was called the Tax cr, dit Certificate (Exports) Scheme 1965. The Scheme provided for grant of Tax Credit Certificate in respect of certain categories of goods or merchandise specified in column 2 which wero exported to destinations specified in column 4 and the dates of export of which fell after 28th February 1965, for an amount calculated at the rates specified in column 3 of the Table attached to the Scheme.\n\nJute carpet backing cloth was covered by Item 1 in column 2 of the Table which specified \"goods made of jute not otherwise specified\". If the Scheme had remained unamended, the appellant would have been entitled to tax credit certificates io respect of the exports made by it of jute carpet backing material, but a notification was issued by the Central Government on 6th June, 1966 in exercise of the powers oonferred by Section 280 ZE read \\\\itlr Section 200 ZC, whereby paragraph 3 of the Scheme which provided for grant of tax credit certificates was amended by re-numbering that paragraph as sub-paragraph (l) and adding a sub-paragraph (2) to the following effect :\n\n\"No certificate shall be granted under sub-paragraph ( 1) in respect of any sale proceeds referred to in that sub-paragraph or part of such sale proceeds, received after the 5th day of June 1966 in India in according with the Foreign Exchange Regulation Act, 1947 (Vil of 1947) and the mies made thereunder''.\n\nThis amendment had the effect of disentitling an exporter to taxcrcdit certificate in respect of goods or merchandise exportc; d by him in nil cases where sale proceeds or part thereof were received in lndi\" after 5th June, 1966.\n\nThe necessity for making this amedment in the Scheme arose on account of devaluation of the Indian rupee which was made by tho Central Government, as it was felt that in view of tho devaluation it was not nocessary to give any further incentive for export. But it was soon realised that this amendment of the Scheme might work hardship in those cases whero goods or merchandise were exported before 5th June 1966 on the faith of the Scheme but for some reason or the other, the sale proceeds were uot received until after that date and, therefore, a second notification dated 8th August, 1966 was issued by the Central Government further amending the scheme in exercise of the powers conferred under Section 280 ZE read with Section 280 ZC by deleting sub-paragraph ( 2) a.nd instead, adding a proviso which provided for grant of tax credit certificate in respect of goods or merchandise exported on or before 5th June 1966 even if the said proceeds were received a!ter that date and declared that in case of goods exported after. 5th June 1966 the rate specified in column 3 of the Table shall be deemed to he nil and no certificate shall be granted in respect of such goods or merchandise.\n\nThe exports of jute carpet backing cloth made by the appellant were admittedly after 5th June, 1966 and hence both the r.otifications adversely affected the appellant by disentitling it to tax crdit ce1tifkstes in respect of these exports.\n\nThe appellant, therefore, filed a Wri! Petition in the High Court of Calcutta for a writ of mandamus for quashing and setting aside both the Notifications and directing the Central Government to consider the application of the .appellant for tax credit certificates in respect of the exports without taking into account the two Notifications .. Though there were several grounds on which the validity of these two Notifications was challenged in the Writ Pc:tition before the High Court, only one ground was pressed before us on behalf of the appellant and we shall, therefore, refer only to that ground. That ground was that both the Notifications were outside the power conferred on the Central Government under Section 260 ZE read with Section 280 ZC, since the Central Government had no power under these Sections to make a scheme providing that no tax credit certificate shall be. gr-d.llted' in case of any goods or mer- .. chandise at all. This ground found favour with the single Judge of\n\nthe High Court but on appeal 'under clause 15 of the Letters Patent, a Division Bench of the High Court took a different view and negatived the challenge. Since !he writ petition was dismissed by the Divio; lon Bench, the appellant preferred the present appeal after obtaining a certificate of fitness from the High court.\n\nThe Indian Income Tax Act 1922 as originally enacted, did not contain the fasciculus of Sections under Chapter XXII providing for gro.nt of tax credit certificates. This Chapter compri:; ing Sections -280 ZC and 280 .ZE was inserted by the Finance Act 1965 with effect from 1st April 1965 with a view to providing incentive for export . purpose of which Section 280 ZC and 280 ZE are material, reads as fellows:- · ·\n\n\"280 ZC. ( 1) Subject to the provisions of this Section, a person who exports any goods or merchandise out of India. after the 28th day of February.1965 and receives the . sale procttds thereon in India in according with the Foreign Exchange Regulation Act, 1947 (VII of 1947)\n\nand tho rules made thereunder shall be granted a tn.x credit 'G cate for an amount calculated at a rate not exceeding fifteen pet' cent, on the amount of •uth sale proceeds.\n\n(2) The goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (1) (including the destination of their export) and th~ rate at which the amount of such certificate shall be calc::rlated shall be such as may be specified in the Scheme:.\n\nProvided thit different rates may be specified .in respect of different gocids or merchandise. · _\n\n(3) In specifying the goods or merchandise (including the destination of their export) and the rates, the Central Government shall have regard to the following factors, namely:\n\n(a) the cost of manufacture or production of such goods or merchandise and prices of similar goods in the foreign markets;\n\n(b) the need to develop foreign markets for such goods or merchandise;\n\n(c) the need to earn foreign exchange;\n\n(d) any other relevant factor\".\n\nC Section 280 ZE conferred power on the Central Government to frame one or more scheme or schemes to be called tax ,:redit ccrtificaie scheme or schemes in the following words :\n\n\"(!) The Central Government shall, by notification in the Official Gazette, frame one or more scheme or schemes to be called tax credit certificate scheme or schemes in rela- D 'lion to tax credit certificates to be granted under this Chapter.\n\n(2) A scheme framed under sub-section (I) may provide for:-\n\n(a)\n\n(b)\n\n(c)\n\n(d)\n\n(e)\n\nthe form and manner in which, and the authoritv to which, applications for the grant of tax credit certificates shall be made;\n\nthe form in which, and the intervals at which. and the authority by which, such certificates shall be issued;\n\nthe verification of any information or particulars furnished, or contained in any application made, by or on behalf of any person entitled to tax credit certificates;\n\nthe determination of the rights and obligations of a person to whom such certificate has been granted and the circumstances in which any right in or title to the said certificate may be transferred to or devolve on any other person by succession or otherwise;\n\nthe detcnnination of the rights and obligation of\n\nprsons who joinly subscribe to an eligible issue of capital;\n\n(f) the determination of the rights and. obligation of\n\npersons who subscribe to an eligible Tssuc of capital, on behalf, or for the benefit, of any other person;\n\nNATIONAL co. v. DY. DIRECTOR TAX (Bhugwati, J.) 129\n\n(g)\n\n(h)\n\nthe appointment of any officer of Government or of the Reserve Bank of India to exercise any rights or perform any duties in connection with the grant of the said certificates;\n\nthe goods or merchandise and the rate or rates for the purposes of section 280 ZC and section 280 ZD and the destination of the export of such goods or merchandise for the purposes of section 280 ZC;\n\n(!) any other matter which may be necessary or proper for the effective implementation of the provisions of this Chapter or the scheme.\n\n(3) The Central Government may, by notification in the Official Gazette, and to, amend, vary or rescind any scheme made under this section\".\n\nIt was in exercise of the power conferred on the Central Government under Section 280 ZE read with section 280 ZC that the Central Government made the Tax Credit Certificate (Exports) Scheme,\n\n1965. The first Notification dated 6th June 1966 amended paragraph 3 of the Scheme by providing that no tax credit certificate shall be granted in respect of exports where the sale proceeds were received after 5th June, 1966. This provision was relaxed by the second Notification dated 8th August 1966 by providing that in case of e:\"ports made on or before 5th June 1966 tax credit certificate shall be granted according to the provisions of the Scheme even if the sale pi'oceeds were received after that date, but in respect of exports inade after.5th June, 1966, the rate specified in column 3 of Table A shall be nil and. no tax credit certificate shall be granted in respect of such exports.\n\nThe argument urged on behalf of the appellant was that it was not competent to the Central Government to provide in the Scheme framed under Section 280 ZE read with Section 280 ZC that no tax -credit certificate shall be granted in respect of exports of any goods or merchandise. The only power, which; according to the appellant, the Central Government had under these two Section~, was to frame a Scheme specifying some goods or merchandise the export of which would entitle an exporter to tu credit certificate. The appellant conceded that the Central Government was not bound to specify any particular category of goods or merchandise in the Scheme framed by it but the limited corttention was that some goods or merchandise must be specified in the Scheme and since in the present case the Scheme as amended provided that tax credit certificates shall not be\n\n~'l'llnted in respect of experts of any goods or merchandise, the two Notifications making this amendment in the Scheme wel'e ultra vites\n\nthe p0wel' of the Central Government under Sections 280 ZE and 28(1 'ZC. This contention, thoogh it found favour with the single Jndge of tlte Calcutta High Court who beard the Writ Petition in the first\n\ninstance, is in our opinion wholly without force and cannot he sustained.\n\nA mere look at the scheme of the provisions of Section 280 ZC and 280 ZE is sufficient to expose the invalidity of this contention.\n\nSub-section ( l) of Section 280 ZC undoubtedly provide~ that a person who exports any goods or merchandise out of India after 28th Febn1ary 1965 and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 194 7 and the rules made thereunder, shall he granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent of the amount of such sale proceeds.\n\nBut this right conferred on an exporter is subject to the other provisions of Section ZC, and these other provisions include sub-sections (2) & (3).\n\nSuh-section (2) provides in so many terms that the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-section (I) and the rate at which the amount ol such certificate shall be calculaterl, shall be such as may be specified in the Scheme.\n\nIt is, thus, left to the Scheme to be framed by the ntral Government to specify the goods or merchandise in respect of which an exporte~ shall be entitled to tax credit certificate as also tho rate at which the amount of such certificate shall be calculated. It is not in respect of every category of goods or merchandise that an exporter can claim to be entitled to tax credit certificate but it is only in respect of such goods or merchandise as are specified in the Scheme. The policy and the principle which would guide the Central Government in selecting the goods or merchandise for this purpose are set out in sub-section ( 3) which provides that in specifying the goods or merchandise as also the rates, the ntral Government shall have regard to the various factors set out in that sub-section.\n\nThese are the factors which woukl influence the choice of the Central Government in selecting the goods or merchandise for the purpose of grant of tax credit ce11ificate and also in determining the rates at which tax credit certificate should be given.\n\nSection 280 ZE, sub-section (1) confers power on the Central Gm- emment to frame one or more Schen1es in relation to tax credit certificate to be granted under Se.ctiou 280 ZC, and under sub-se.:tion (2). such scheme or schemes may provide inter alia for the goods or merchandise and the rate or rates for the purposes of Section 280 ZC.\n\nWe fail to see how any obliization can be spelt out from these pnwisions requiring the Central Government to frame a scheme specifyi11.r the p:oods or merchandise in respect of which tax credit certificate shall be granted.\n\nIt would indeed be absurd to suggest that the Cel\\{ral Government is under an obligation to make a scheme and the reqcirement of the statute would bo satisfied so long as tho Centm! Government specifies some oods or merchandise in the Sch=e. The.-e i• no reason why the Central Government should not be entitled to say that having rel!'lrd to the factors set out in sub-section (3) of .ectiu11 280 7£, it does not think it dirable that tax credit certificate should be granted in respect of any goods or merchandise for the time hcin~.\n\nSub-section (3) of Section 280 7£ confers pawer on the Central Government in so manv terms to rescind a Scheme made by it and that also supports the view that the Central Government mav keening in view the factors set out in sub-section (3) section 280 ZC,\n\nl ,\n\ndecline to make a scheme or provide in the scheme that there shall be no goods or merchandise in respect of which tax credit certificate shall be granted. In the circumstances, we think that the Division Bench -of the Hi~ Court was right in holding that the Central ~Y cmment was enlltled to issue the two impugned Notifications directing that no tax credit certificates shall be granted in respect of goods or merchandise exported on or after 5th June, 1966.\n\nWe accordingly dismiss the appeal with costs.\n\nS.R.\n\nAppeal dismisicd.", "total_entities": 67, "entities": [{"text": "NATIONAL CO. LTD. CALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "NATIONAL CO. LTD. CALCUTTA", "offset_not_found": false}}, {"text": "DEPUTY DIRECTOR OF TAX CREDIT (EXPORTS)\n\nCALCUTTA & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "DEPUTY DIRECTOR OF TAX CREDIT (EXPORTS) CALCUTTA & ORS", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 102, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 121, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "5-6-1966", "label": "DATE", "start_char": 703, "end_char": 711, "source": "ner", "metadata": {"in_sentence": "March 3, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J\n\nTax Credit Ce1tificate (Exports) Schenie 1965-Scheme providing for cer- .tain categories of goods or 1nerchandise specified in column 2 whiclz were f'X]>orted after 28-2-1965 to destinations specified in colun1n 4--Scherne a111c11ded by Notification dated 6-6-1966 disentitling an exporter to tdx credit certificate in respect of goods or n1erc/landise exported and the sale proceeds therefor were receiied after 5-6-1966-Second Notification amending the first one providing for grant of tax credit ci?rtificate in respect of goods exported on or before 5-6-1966 even if the sale proceeds WPre received thereafter-H,.het!1er the Notifications ultra vires the powers of the Central Government vested under\n\n~. 280 ZE read with 280 ZC of the lnconze Tax Act."}}, {"text": "Central Government", "label": "ORG", "start_char": 822, "end_char": 840, "source": "ner", "metadata": {"in_sentence": "March 3, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J\n\nTax Credit Ce1tificate (Exports) Schenie 1965-Scheme providing for cer- .tain categories of goods or 1nerchandise specified in column 2 whiclz were f'X]>orted after 28-2-1965 to destinations specified in colun1n 4--Scherne a111c11ded by Notification dated 6-6-1966 disentitling an exporter to tdx credit certificate in respect of goods or n1erc/landise exported and the sale proceeds therefor were receiied after 5-6-1966-Second Notification amending the first one providing for grant of tax credit ci?rtificate in respect of goods exported on or before 5-6-1966 even if the sale proceeds WPre received thereafter-H,.het!1er the Notifications ultra vires the powers of the Central Government vested under\n\n~. 280 ZE read with 280 ZC of the lnconze Tax Act."}}, {"text": "ZC of the lnconze Tax Act", "label": "STATUTE", "start_char": 879, "end_char": 904, "source": "regex", "metadata": {}}, {"text": "s. 280Z", "label": "PROVISION", "start_char": 1261, "end_char": 1268, "source": "regex", "metadata": {"linked_statute_text": "ZC of the lnconze Tax Act", "statute": "ZC of the lnconze Tax Act"}}, {"text": "S. 280Z", "label": "PROVISION", "start_char": 1280, "end_char": 1287, "source": "regex", "metadata": {"linked_statute_text": "ZC of the lnconze Tax Act", "statute": "ZC of the lnconze Tax Act"}}, {"text": "6-6-1966", "label": "DATE", "start_char": 1296, "end_char": 1304, "source": "ner", "metadata": {"in_sentence": "The notification issued by the Central Government in exercise of the powers vested under s. 280ZE read with S. 280ZC, dated 6-6-1966 and 8-8-1966, provided that no tax credit certificnte shall be issued in respect of any goods exported after 5-6-1966."}}, {"text": "8-8-1966", "label": "DATE", "start_char": 1309, "end_char": 1317, "source": "ner", "metadata": {"in_sentence": "The notification issued by the Central Government in exercise of the powers vested under s. 280ZE read with S. 280ZC, dated 6-6-1966 and 8-8-1966, provided that no tax credit certificnte shall be issued in respect of any goods exported after 5-6-1966."}}, {"text": "13-7-1966", "label": "DATE", "start_char": 1559, "end_char": 1568, "source": "ner", "metadata": {"in_sentence": "The appellant, who exported diverse quantities of jute carpet backing cloth .manufactured by it to various countries during the period 13-7-1966 and 30-11-1966, filed a writ petition in the Calcutta High Court for a writ of niandarnus for quashing and setting aside both the Notifications and directing the Central {]overnment to consider the application of the applicant for tax credit certificate in respect of the exports without taking into account the t\\-vo Notifications."}}, {"text": "30-11-1966", "label": "DATE", "start_char": 1573, "end_char": 1583, "source": "ner", "metadata": {"in_sentence": "The appellant, who exported diverse quantities of jute carpet backing cloth .manufactured by it to various countries during the period 13-7-1966 and 30-11-1966, filed a writ petition in the Calcutta High Court for a writ of niandarnus for quashing and setting aside both the Notifications and directing the Central {]overnment to consider the application of the applicant for tax credit certificate in respect of the exports without taking into account the t\\-vo Notifications."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 1614, "end_char": 1633, "source": "ner", "metadata": {"in_sentence": "The appellant, who exported diverse quantities of jute carpet backing cloth .manufactured by it to various countries during the period 13-7-1966 and 30-11-1966, filed a writ petition in the Calcutta High Court for a writ of niandarnus for quashing and setting aside both the Notifications and directing the Central {]overnment to consider the application of the applicant for tax credit certificate in respect of the exports without taking into account the t\\-vo Notifications."}}, {"text": "s 280Z", "label": "PROVISION", "start_char": 2024, "end_char": 2030, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 280", "label": "PROVISION", "start_char": 2042, "end_char": 2048, "source": "regex", "metadata": {"statute": null}}, {"text": "Ss. 280", "label": "PROVISION", "start_char": 2724, "end_char": 2731, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Govern~ ment", "label": "ORG", "start_char": 2900, "end_char": 2920, "source": "ner", "metadata": {"in_sentence": "The Central Govern~ ment was entitled to say that having regard to the factors set out in subsection (3) of S. 280 ZC, it does not think it desirable that , tax credit c.:rti ficate should be granted in respect of any goods or merchandISe for the tune being."}}, {"text": "S. 280", "label": "PROVISION", "start_char": 3004, "end_char": 3010, "source": "regex", "metadata": {"statute": null}}, {"text": "N. R. Khaitan", "label": "LAWYER", "start_char": 3328, "end_char": 3341, "source": "ner", "metadata": {"in_sentence": "130/71) _\n\nN. R. Khaitan, A. T. Patra and Pravee11 Kumar, for the appellant."}}, {"text": "A. T. Patra", "label": "LAWYER", "start_char": 3343, "end_char": 3354, "source": "ner", "metadata": {"in_sentence": "130/71) _\n\nN. R. Khaitan, A. T. Patra and Pravee11 Kumar, for the appellant."}}, {"text": "Pravee11 Kumar", "label": "LAWYER", "start_char": 3359, "end_char": 3373, "source": "ner", "metadata": {"in_sentence": "130/71) _\n\nN. R. Khaitan, A. T. Patra and Pravee11 Kumar, for the appellant."}}, {"text": "A Lal Narain Sinha", "label": "LAWYER", "start_char": 3395, "end_char": 3413, "source": "ner", "metadata": {"in_sentence": "A Lal Narain Sinha, Sol."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 3429, "end_char": 3441, "source": "ner", "metadata": {"in_sentence": "General, S. N. Prasad and Girish Clwndra\n\nnot present for respondents."}}, {"text": "Girish Clwndra", "label": "LAWYER", "start_char": 3446, "end_char": 3460, "source": "ner", "metadata": {"in_sentence": "General, S. N. Prasad and Girish Clwndra\n\nnot present for respondents."}}, {"text": "BllAGWATI", "label": "JUDGE", "start_char": 3536, "end_char": 3545, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBllAGWATI, J. The appellant.owns a jute mill situate at Rajgunj, Railway Station Andul, District Howrah in the State of West Bengal and among other jute .products, it manufactures jute ."}}, {"text": "Section 280", "label": "PROVISION", "start_char": 4012, "end_char": 4023, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 200", "label": "PROVISION", "start_char": 4037, "end_char": 4048, "source": "regex", "metadata": {"statute": null}}, {"text": "ZC of the Income Tux Act", "label": "STATUTE", "start_char": 4049, "end_char": 4073, "source": "regex", "metadata": {}}, {"text": "6th June, 1966", "label": "DATE", "start_char": 4878, "end_char": 4892, "source": "ner", "metadata": {"in_sentence": "If the Scheme had remained unamended, the appellant would have been entitled to tax credit certificates io respect of the exports made by it of jute carpet backing material, but a notification was issued by the Central Government on 6th June, 1966 in exercise of the powers oonferred by Section 280 ZE read \\\\itlr Section 200 ZC, whereby paragraph 3 of the Scheme which provided for grant of tax credit certificates was amended by re-numbering that paragraph as sub-paragraph (l) and adding a sub-paragraph (2) to the following effect :\n\n\"No certificate shall be granted under sub-paragraph ( 1) in respect of any sale proceeds referred to in that sub-paragraph or part of such sale proceeds, received after the 5th day of June 1966 in India in according with the Foreign Exchange Regulation Act, 1947 (Vil of 1947) and the mies made thereunder''."}}, {"text": "Section 280", "label": "PROVISION", "start_char": 4932, "end_char": 4943, "source": "regex", "metadata": {"linked_statute_text": "ZC of the Income Tux Act", "statute": "ZC of the Income Tux Act"}}, {"text": "Section 200", "label": "PROVISION", "start_char": 4959, "end_char": 4970, "source": "regex", "metadata": {"linked_statute_text": "ZC of the Income Tux Act", "statute": "ZC of the Income Tux Act"}}, {"text": "5th day of June 1966", "label": "DATE", "start_char": 5357, "end_char": 5377, "source": "ner", "metadata": {"in_sentence": "If the Scheme had remained unamended, the appellant would have been entitled to tax credit certificates io respect of the exports made by it of jute carpet backing material, but a notification was issued by the Central Government on 6th June, 1966 in exercise of the powers oonferred by Section 280 ZE read \\\\itlr Section 200 ZC, whereby paragraph 3 of the Scheme which provided for grant of tax credit certificates was amended by re-numbering that paragraph as sub-paragraph (l) and adding a sub-paragraph (2) to the following effect :\n\n\"No certificate shall be granted under sub-paragraph ( 1) in respect of any sale proceeds referred to in that sub-paragraph or part of such sale proceeds, received after the 5th day of June 1966 in India in according with the Foreign Exchange Regulation Act, 1947 (Vil of 1947) and the mies made thereunder''."}}, {"text": "India in according with the Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 5381, "end_char": 5446, "source": "regex", "metadata": {}}, {"text": "5th June, 1966", "label": "DATE", "start_char": 5708, "end_char": 5722, "source": "ner", "metadata": {"in_sentence": "This amendment had the effect of disentitling an exporter to taxcrcdit certificate in respect of goods or merchandise exportc; d by him in nil cases where sale proceeds or part thereof were received in lndi\" after 5th June, 1966."}}, {"text": "5th June 1966", "label": "DATE", "start_char": 6124, "end_char": 6137, "source": "ner", "metadata": {"in_sentence": "But it was soon realised that this amendment of the Scheme might work hardship in those cases whero goods or merchandise were exported before 5th June 1966 on the faith of the Scheme but for some reason or the other, the sale proceeds were uot received until after that date and, therefore, a second notification dated 8th August, 1966 was issued by the Central Government further amending the scheme in exercise of the powers conferred under Section 280 ZE read with Section 280 ZC by deleting sub-paragraph ( 2) a.nd instead, adding a proviso which provided for grant of tax credit certificate in respect of goods or merchandise exported on or before 5th June 1966 even if the said proceeds were received a!ter that date and declared that in case of goods exported after."}}, {"text": "8th August, 1966", "label": "DATE", "start_char": 6301, "end_char": 6317, "source": "ner", "metadata": {"in_sentence": "But it was soon realised that this amendment of the Scheme might work hardship in those cases whero goods or merchandise were exported before 5th June 1966 on the faith of the Scheme but for some reason or the other, the sale proceeds were uot received until after that date and, therefore, a second notification dated 8th August, 1966 was issued by the Central Government further amending the scheme in exercise of the powers conferred under Section 280 ZE read with Section 280 ZC by deleting sub-paragraph ( 2) a.nd instead, adding a proviso which provided for grant of tax credit certificate in respect of goods or merchandise exported on or before 5th June 1966 even if the said proceeds were received a!ter that date and declared that in case of goods exported after."}}, {"text": "Section 280", "label": "PROVISION", "start_char": 6425, "end_char": 6436, "source": "regex", "metadata": {"linked_statute_text": "India in according with the Foreign Exchange Regulation Act, 1947", "statute": "India in according with the Foreign Exchange Regulation Act, 1947"}}, {"text": "Section 280", "label": "PROVISION", "start_char": 6450, "end_char": 6461, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 7214, "end_char": 7236, "source": "ner", "metadata": {"in_sentence": "Petition in the High Court of Calcutta for a writ of mandamus for quashing and setting aside both the Notifications and directing the Central Government to consider the application of the .appellant for tax credit certificates in respect of the exports without taking into account the two Notifications .. Though there were several grounds on which the validity of these two Notifications was challenged in the Writ Pc:tition before the High Court, only one ground was pressed before us on behalf of the appellant and we shall, therefore, refer only to that ground."}}, {"text": "Section 260", "label": "PROVISION", "start_char": 7873, "end_char": 7884, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 7898, "end_char": 7909, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 8193, "end_char": 8202, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act 1922", "label": "STATUTE", "start_char": 8485, "end_char": 8511, "source": "regex", "metadata": {}}, {"text": "ZE was inserted by the Finance Act 1965", "label": "STATUTE", "start_char": 8698, "end_char": 8737, "source": "regex", "metadata": {}}, {"text": "Section 280", "label": "PROVISION", "start_char": 8835, "end_char": 8846, "source": "regex", "metadata": {"linked_statute_text": "ZE was inserted by the Finance Act 1965", "statute": "ZE was inserted by the Finance Act 1965"}}, {"text": "28th day of February.1965", "label": "DATE", "start_char": 9026, "end_char": 9051, "source": "ner", "metadata": {"in_sentence": "after the 28th day of February.1965 and receives the ."}}, {"text": "India in according with the Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 9096, "end_char": 9161, "source": "regex", "metadata": {}}, {"text": "Section 280", "label": "PROVISION", "start_char": 10184, "end_char": 10195, "source": "regex", "metadata": {"statute": null}}, {"text": "section 280", "label": "PROVISION", "start_char": 11945, "end_char": 11956, "source": "regex", "metadata": {"statute": null}}, {"text": "section 280", "label": "PROVISION", "start_char": 11964, "end_char": 11975, "source": "regex", "metadata": {"statute": null}}, {"text": "section 280", "label": "PROVISION", "start_char": 12062, "end_char": 12073, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 12432, "end_char": 12443, "source": "regex", "metadata": {"statute": null}}, {"text": "section 280", "label": "PROVISION", "start_char": 12457, "end_char": 12468, "source": "regex", "metadata": {"statute": null}}, {"text": "6th June 1966", "label": "DATE", "start_char": 12586, "end_char": 12599, "source": "ner", "metadata": {"in_sentence": "The first Notification dated 6th June 1966 amended paragraph 3 of the Scheme by providing that no tax credit certificate shall be granted in respect of exports where the sale proceeds were received after 5th June, 1966."}}, {"text": "8th August 1966", "label": "DATE", "start_char": 12837, "end_char": 12852, "source": "ner", "metadata": {"in_sentence": "This provision was relaxed by the second Notification dated 8th August 1966 by providing that in case of e:\"ports made on or before 5th June 1966 tax credit certificate shall be granted according to the provisions of the Scheme even if the sale pi'oceeds were received after that date, but in respect of exports inade after.5th June, 1966, the rate specified in column 3 of Table A shall be nil and."}}, {"text": "Section 280", "label": "PROVISION", "start_char": 13389, "end_char": 13400, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 13414, "end_char": 13425, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 280", "label": "PROVISION", "start_char": 14296, "end_char": 14308, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 14580, "end_char": 14591, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 14686, "end_char": 14697, "source": "regex", "metadata": {"statute": null}}, {"text": "28th Febn1ary 1965", "label": "DATE", "start_char": 14792, "end_char": 14810, "source": "ner", "metadata": {"in_sentence": "Sub-section ( l) of Section 280 ZC undoubtedly provide~ that a person who exports any goods or merchandise out of India after 28th Febn1ary 1965 and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 194 7 and the rules made thereunder, shall he granted a tax credit certificate for an amount calculated at a rate not exceeding 15 per cent of the amount of such sale proceeds."}}, {"text": "India in accordance with the Foreign Exchange Regulation Act", "label": "STATUTE", "start_char": 14853, "end_char": 14913, "source": "regex", "metadata": {}}, {"text": "Section 280", "label": "PROVISION", "start_char": 16582, "end_char": 16593, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 16904, "end_char": 16915, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 280", "label": "PROVISION", "start_char": 17702, "end_char": 17713, "source": "regex", "metadata": {"statute": null}}, {"text": "section 280", "label": "PROVISION", "start_char": 17924, "end_char": 17935, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_132_138_EN", "year": 1977, "text": "PALANIAPPA GOUNDER\n\nSTATE OF TAMIL NADU & ORS.\n\nMarch 4, 1977\n\n(Y. V. CHANDRACHUD AND P. K. GOSWAMI, JJ.]\n\n . Cbmpensation to persons injured out of a1nount reali'sed by sentence of fine-Propriety of inzposition of heary {i1re, while sentencing-Guidelines to the Courts for imposing sentence of fine-Section 357 of the Code of Criminal Procedure (Act 11 o/ 1974), 1973. ·\n\nThe appellant was convicted by the Sessions Judge. Salem for an offeiice under s. 302 I.P.C. and was sentenced to death. The lligh Court motlified che sentence of death to one of life imprisonment. However, exercising its Powers under s. 367(4) of the Criminal Procedure Code, 1973, the High Court imposed a fine of Rs. 20,000/- under s. 357(1)(c) of the Code.\n\nSpecial Leave \\\\'as granted, by the court, limiting it into the question of propriety of the fine imposed by the High Court. ·\n\nAllowing the appeal in part and reducing the fine the Court, HELD: ·(i) A saving provision which saves· the inherent powers of the court cannot over-ride an express provision contained in the Statute which saves that power. That did not however affect the power of the High Court to deal with the application merely because the application was wrongly described as having been made under a wrong section. In the instant case, the High Court correctly passed an order of compensation not under s. 482 but under s. 357(1)(c) of the Code and the application filed in the High Covrt\n\n\\Vas maintainable at the instance of the son and daughter of the deceased.\n\n[133 H, 135 F-G]\n\n(ii) Under s. 302 l.P.C. not only a sentence of imprisonment for life but e\\\"en a sentence of death can legitim:itely be combined with a sentence of fine.\n\nFor the offence of murder; the court do havc the pov, rer to impose the sentence of fine.\n\n[136 B-C]\n\n(iii) Legitimacy is nOt to be confused \\Vith propriety and the , fact that the court rossesscs a certain power does not mean that it must exercise it. Though there 1s power to combine a sentence of death with a sentence of fine that power is to be sparingly exercised because the sentence of death is an extreme .penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. [136 C-E]\n\n(iv) The first concern of the court, after recording an order of conviction. ought to be to determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine. must not be unduly excessive. In fact, the primary object of impOsing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realised which can happen only when the fine is not unduly excessive, having regard to all the circumstances of the case, including the means of the offender. [137 D-F]\n\n(v) Since by s. 357(1)(c) of the code of 1973 and its precursor s. 545(1)\n\n(bb) of the code of 1898 compensation can only come out of fine, it is always necessary to consider in the first instance \\\\'hether the sentence of fine fa at all called for, particularly when the offender is sentenced to death or life imprisonment. If so, the fine must not be execessive, having regard to all the circumstances of the case Hke motivation of the offence, the pecuniary JZain likelv to have been made by the offender by committing the offence and his means to pay the fine.\n\nThe High Court in the instant case in.stead of applying its mind to these factors, considered only what compensation the heirs ought to receive. There is no warrant for the assumption made by the High Court as regardsthe retention of .. abilities .in fact\" or as regards the\n\n\"extent of I05S 'to the dependants.\" (137 A-C, 138 A-CJ\n\nS1ate v. Pandurang Shinde, A.LR. (1956] Born 711, 714 referred to.\n\nAdamji Umar Dalal v. The State of Bombay, (1952] S.C.R. 172, applied.\n\n(vi) ln view of the fact that the appellant was under the sentence of death since it'i imposition by the Sessions Court and its reduction to life iniprisonment by the High Court since a sentence of life imprisonment ha~ been imposed on the appellant that being the only other sentence permissible under the l:nv, the fine of Rs. 20,000 is unduly excessive and a sun1 of Rs. 3000/ - \\\\oU!d meet the ends of justice.\n\n[138 C-DJ B\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 190 of 1976. (Appeal by Special Leave from the Judgment and Order 15-7-1975 of the Madras High Court in Criminal Appeal No. 75.\n\nVineet Kumar and M. Mudgal, for the appellant.\n\nA. V. Rangam and Miss A. Subhashni, for respondent No. 1\n\nK. Jayaram and K. Ram Kumar, for respondents Nos. 2-4.\n\nThe Judgment of the Court was delivered by\n\ndated 162(\n\nCHANDRACHUD, J.\n\nThe appellant, Palaniappa Gounder, was convicted by the learned Principal Sessions Judge, Salem, under s. 302 of the Penal Code and was sentenced to death on the charge that on August 23, 1974 he had committed the murder of one Sengoda Goundar.\n\nTwo appellant's son and daughter-in-law were convicted by the learned Judge for abetting the murder and were sentenced to life imprisonment.\n\nThe three accused filed an appeal in the High Court of Madras which upheld the appellant's conviction under s. 302 but reduced the sentence from death to imprisonment of life.\n\nHowever, while reducing the substantive sentence the High Court imposed a fine of Rs. 20,000/- on the appe:Jant and directed that out of the fine, if realised, a sum of Rs. 15,000/- should be paid to the son and daughters of the decea5ed under s. 357(1) (e) of the Criminal Procedure Code. 2 of 1974. The other two accused were acquitted by the High Court. We are not concerned in this appeal with the legality of the appellant's conviction or with the acquittal of his daughter and son-in-law. The special leave granted by this Court is limited to the question of the propriety of the fine imposed by the High Court.\n\nThe reason and occa5ion for imposing the sentence of fine was that an application was filed before the High Court under s. 482 of the Criminal Procedure Code by a son and two daughters of the dccea5ed praymg that the appellant, his son and daughter-in-law be asked to pay to them, as heirs of the deceased, compensation in the sum of Rs. 40,0001for the death of their father.\n\nSection 482 of the Code under which the heirs of the deceased\n\nfild .the application for compensation corresponds to s. 561-A of the Cnmral Procedure Code of 1898. It saves the inherent powers of the Htgh Court to make such orders as may be necessary to give ffect\n\nto any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.\n\nA provision\n\nA which saves the inherent powers of a Court cannot over-ride any express . provision containc<l in the statute which saves that power.\n\nThis is put in another form by saying that if there is an express provision in a statute governing a particular .subject matter there is no scope for •\n\ninvoking or exercising the inherent powers of the Court because the Court ought. to apply the provisions of the statute which are made advisedly to govern the particular subject matter.\n\nFrom this it will B be clear that the application made by the heirs of the deceased for compensation could not have been made under s. 482 since S 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein.\n\nThat did not, however, affect the power of the High Court to deal with the application because though the application was wrongly described a.o having been made under s. 482 the High Court could deal with it as if it were C made under s. 357 of the Code.\n\nThat in fact is what the High Court proceeded to do, for it passed the order of compensation not under s. 482 but under s. 357(l)(c) of the Code.\n\nSection 357 of the Code of Criminal Procedure, 2 of 1974, reads thus :\n\n\"357. Order to pay compe11sa1io11.\n\n(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied :-\n\n(a) in defraying the expenses properly incurred in the prosecution;\n\n( b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;\n\n(c)\n\n(d)\n\nwhen any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who arc, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;\n\nwhen any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reasons to believe the same to be stolen, .in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.\n\n(2) If the fine is imposed in a case which is subject to A appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, of an appeal be presented, before the decision of the appeal.\n\n( 3) When a Court imposes a sentence, of which fine does not form a Part, the Court may, \\Vhen passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.\n\n( 4) An onicr under this section may also be made by an Appellate Court or by the High Court or Court of Sessions\n\nwhen exercising its powers of revision.\n\n(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.\"\n\nClauses (a), (b) and (d) of s. 357(1) need not be considered firstly because the High Court has passed the order of compensation under cl. ( c) and secondly because those clauses have no application.\n\nNo order having been passed by the High Court for defraying the expenses incmred in the prosecution cl. (a) does not come for consideration.\n\nClause (b) has no application to cases in which the heirs of a person whose death has been caused apply for compensation because that clause deals with the payment of compensation to the very person to whom any loss or injury has been caused as a result of the offence committed against him or his property and when compensation is recoverable by such person in a Civil Court.\n\nClause ( d) deals with a different Class of cases altogether and need not detain us.\n\nClause (c) of s. 357(1) under which the High Court has passed the order for compensation enables the Court to direct that the whole or any part of the fine recovered may be applied in paying compensation to the persons who are under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from the death of the person whose heirs, as described in the Act nf 1855, they claim to be.\n\nSince under the Act of 1855, persons who may be compensated are the wife, husband, parent (including grand-parents) and child (including grand-children and step-children), the application filed in the High Court was maintainable at the instance of the son and daughters of the deceased.\n\nIt cannot however be overlooked that the order for compensation can be passed under s. 357(l)(c) only when \"a Court imposes a\n\n'ntence of fine or a sentence (including a sentence of death) of which fine forms a part\".\n\nWe are concerned in this appeal to examine primarily the legality and propriety of the sentence of fine imposed by the High Court because upon that would depend the efficacy and indeed the very existence of the order for payment of compensation to the heirs of the deceased.\n\nThe compensation, as\n\n10-240SCI 177\n\nprovided in the section, has to come out of the fine. Therefore, if on a proper application of the principles of sentencing, the fine imposed by the High Court is found to be excessive and has therefore to be reduced, the order regarding the payment of compensation must suffer a corresponding variation.\n\nThere can be no doubt that for the offence of murder Courts have the power to impose a sentence of fine under s. 302 of the Penal Code.\n\nThat section provides that whoever commits murder shall be punished with death, or imprisonment for life, and \"shall also be liable to fine''.\n\nThat is why section 357 (!) of the Code speaks of \"a sentence (including a sentence of death) of which fine forms a part.'' That is only an instance of the practical application of s. 302 under which not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine.\n\nBut legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had, the\n\npower to impose on the appellant a sentence of fine alongwith the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,0001is justified in the circumstances of the case.\n\nEconomic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjnstifiably by violating economic laws fan be assumed legitimately to J'OSsess the means to pay that fine.\n\nI-le must disgorge his ill-gotten wealth.\n\nBut quite different considerations would, in the generality ol cases, apply to matters of the present kind.\n\nThought there is power to combine a sentence of death with a sentence of fine that power in sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose.\n\nIn fact the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine.\n\nWe cannot, of course, go so far as to express approval of the unqualified view\n\ntaken in some of the cases that a sentence of fine for an offence of murder is wholly \"inapposite\" (See, for example, State v. Pandurang Shinde('), but before imposing the sentence of fine, particnlarly a heavy fine, alongwith the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called fat\" and if so, what is a proper or adequate fine to impose in the circumstances of the case. As observed by this Court in Adam Ji Umar Dalal v.\n\nThe State of Bombay,(') determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided. by a variety of considerations but the court must always bear in mmd the necessity of maintaining a proportion between the offence and the penalty proposed fo~ it.\n\nSpeaking for .th~ Court Mahajan J. observed in that case that : \"m imposmg a fme it 1s nec0ssary to have as mnch regard to the pecuniary circumstances of the accused persons as to the\n\n(1) A.LR. [19561 Born 711, 714.\n\n(2) [1952] S.C.R. 172.\n\ncharacter and magnitude of the offence, and where a substantial term of imprisomnent is inflicted, an excessive fine should not accompany it except in exceptional cases\" (p. 177).\n\nThough that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,3001to Rs 4,000/- on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine.\n\nThe High Court imposed in the instant case a fine of Rs. 20,000/- on the ground that \"the deceased was aged about 48 years am! was actively supervising the cultivation of the family lands and would have Jived for another 15 to 20 years with his abilities in tact, and the Jo,; s to the dependents, viz., the son and daughters would be about Rs.\n\n20,000/-\".\n\nExcept for the bald and bare statements contaiJ!ed in the petition for compensation filed by the heirs of the deceased, there is no warrant for the assumption made by the High Court as regards the retention of \"abilities in tact\" or as regards the extent of \"loss to the dependents\".\n\nIt appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased r, nd then imposed by way of fine an amount which was higher than the c.1111pensation because the compensation has to come out of the amount of fine.\n\nApart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the c:art before the horse in leaving the propriety of fine to depend upon the amount of compensation.\n\nThe first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass.\n\nThe sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly excessive.- In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentcn<:e in default of poyment of fine but to see that the fine is realized, which can\n\nhappen only when the fine is not unduly excessive having regard to all the circumstances of the case, including the means of the offender.\n\nSect:on 357 (I) ( c) of the new Code corresponds to s.545 (I) (bb) of the Code of 1898 which was introduced by s. 110 of Amending Act 26 of 1955.\n\nThe statement of objects and reasons of that Act shows that the Joint Committee took the view that, in suitable cases, the person who causes death should compensate the heirs and dependents of the deceased for the loss resulting from the death.\n\nThe Joint Committee was in full agreement with the view that in a case where death has resulte<l from homicide, the Court should award compensation to the he'rs of the deceased because that would result\n\n\"in settling the claim once for all by doing away with the need for a further claim in a civil Court, needless worry and expense to both sides of the party\".\n\nThe views of the Joint Committee incorporated in the Statement of Objects and Reasons to the Amending Act of 1955 arc undoubtedly entitled to consideration but those views only reflect\n\nthat there should reside in the criminal Court the power in aoprooriate cases to pass an order of compensation in favour of the he'rs cf the\n\ndeceased.\n\nIt cannot, however, be overlooked that since by s. 357\n\n(1) (c) of the new Code and its precursor, s. 545(1) (bb) of the old Code, compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of fine is at all called for, particularly when the offender is sentenced to death or life imprisonment.\n\nIf so, the fine must not be excessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine.\n\nThe High Court, instead of applying its mind to these factors, considered only what compensation the heirs of the deceased ought to receive.\n\nAnd that question it decided on inadequate data.\n\nIn view of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court and since a sentence of life imprisonment has been imposed on the appellant, that being the only other sentence permissible under the law, the fine of Rs. 20,000 imposed by the High Court seems to us unduly excessive.\n\nIn the circumstances we reduce it to a sum of Rs. 3,0001and direct that the fine or so much of it as is recovered shall be paid to the son and daughters of the deceased who had filed the petition in that behalf in the High Court.\n\nS.R.\n\nAppeal allowed in purl.", "total_entities": 58, "entities": [{"text": "PALANIAPPA GOUNDER", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": 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["}}, {"text": "s.545", "label": "PROVISION", "start_char": 17780, "end_char": 17785, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 110", "label": "PROVISION", "start_char": 17839, "end_char": 17845, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 357", "label": "PROVISION", "start_char": 18871, "end_char": 18877, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 545(1)", "label": "PROVISION", "start_char": 18922, "end_char": 18931, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_139_142_EN", "year": 1977, "text": "STATE OF RAJASTHAN v.\n\nRAMDEEN & OTHERS\n\nMarch 4, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHJNGHAL, JJJ\n\nCode of .. Crilninal Procedure, 1973, s. 378(1) and (3)-}Vhether two sep'!rate pellltons are 11cressary 1111der sub-section ( 1) and (3), or a co1nposl/e 111e111ora11dun1 of t p:1cal can contain prayer for leave to appall.\n\nThe State filed an application under s. 378(3) of the Cr.P.C., 1973, for leave to appeal against the acquittal of the respondents, of the charges under s. 302 and 3021149 I.P.C., by the Trial Court. The application, although n1ade under s. 378 (3) contained all the requisites for a memorandum of\n\napeal. The High Court granted the appellant leave to the appeal, but disrn1ssed the appeal filed thereafter, on the ground that it had not been hied\n\nithin ninety days of the date. of judgment appealed from, and was therefore lime-barred under Art. 114(a) of the Limitation Act, 1963.\n\nAllov.'ing the appeal by special leave the Court,\n\nHELD ( 1) The High Court has not laid down any rules in the matter of application for leave t6 appeal by the State. The matter will have to be decided in ternlS of s. 378(1) and (3) of thi Code of Criminal Procedure,\n\n1973. An appeal can be filed by the State within ninety days from the date of the order of acquittal, and a prayer may be included in that appeal for entertaining the appeal under sub-section (3) of section 378 Cr.P.C. 1'he appeal may otherwise become time-barred if the High Court takes more than ninety days for disposal of the application for leave, and refuses to exercise its jurisdiction to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right.\n\n[141 C-HJ\n\n(2) The fact that the appellrint's application mentioned section 378(3) is not decisive of the true character of the application which to all intents anti purposes \\Vas a memorandum of appeal.\n\n[142 C-D]\n\nCRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 343 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated F 27-1-1975 of the Rajasthan High Court in D.B.\n\nCrl. Appeal No. 575/74)\n\nS. M. Jain, !. Makwana and D. Shandari, for the appellant.\n\nDoongar Singh and S. K. Gambhir, for the respondents.\n\nThe Judgment of the Court was delivered by G\n\nGoswAMI, J. The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under sections 302, 302/149 and some other minor sections of the Indian Penal Code.\n\nRespondent Goparam was acquitted of all the charges.\n\nThe other respondents also were acquitted of the charges under sections 302 and 3021149, IPC.\n\nRespondent Sangram was convicted under section 304 Part II, IPC.\n\nH Respondent Dayalram was convicted under section 324 IPC.\n\nRespondents Budharam and Ramdeen were convicted under section 323 ll>C.\n\n. A Being aggrieved by the judgment of the Sessions Judge, the State\n\nof Rajasthan preferred an appeal against acquittal of the major charges under section 378 of the Code of Criminal Procedure, 1973.\n\nThe Sessions Judge delivered the judgment on March 30, 197 4 and the Code of Criminal Procedure, 1973, came into force from April 1, 197 4- The appeal was, therefore, preferred under the new Code.\n\nIt appears that the State of Rajasthan preferred a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, on June 27, 1974, which was within the period of limitation prescribed under article 114 (b) of the Limitation Act,\n\n1963. Article 114(a) of the Limitation Act, 1963, provides for a period of limitation for appeal from an order of acquittal under sub- C section (1) or sub-section (2) of section 417 of the Code of Criminal Procedure, 1898 (hereinafter to be described as the Old Code).\n\nThe Limitation Act being an act of the year 1963, does not naturally refer to section 378 of the Code of Criminal Procedure Code, 1973.\n\nSection 3 78 of the Code of Criminal Procedure, 1973, is equivalent to section 41 7 of the Old Code with an important difference in case of appeal against acquittal by the State.\n\nUnder the Old Code there D was no provis\\on for taking leave of the High Court by the State for presentation of an appeal to the High Court against an original or appellate order of acquittal.\n\nThere was, however, provision for obtaining special leave to appeal under section 417 (3) of the Old Code against an order of acquittal in any case instituted upon complaint.\n\nWith some changes about limitation, with which we are not concerned, provision for special leave to appeal in any case instituted E upon complaint has been retained in the new Code.\n\nUnlike in the Old Code, section 378(3) provides that no appeal under sub-section\n\n(1) or sub-section (2) thereof shall be entertained except with the leave of the High Court. Such a provision for obtaining leave of the High Court by the State was absent in the Old Code.\n\nSince the State filed an appeal against acquittal in this case soon after the coming into force of the new Code, the State of Rajasthan preferred an application describing it as a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, with a prayer \"to accept this petition to file an appeal in the present case ...... \" Although the application was described as one under section 387(3) of the Code of Criminal Procedure, all the facts and other requisites for a memorandum of appeal, including the grounds on which the appeal was founded, were given in as great a detail as was necessary.\n\nThe High Court after hearing the State granted leave to appeal on August 16, 1974.\n\nThe State thereafter filed again a petition of appeal on September 10, 1974.\n\nThis date is clearl) beyond the period of ninety days prescribed under article 114(c) of the Limitation Act, 1963. The High Court dismissed the appeal on January 27, 1975 as time-barred.\n\nIn view of section 8 of the General Clauses Act, 1897, it is not disputed before us that article 114(a) is aoolicable in this case. The respondents, however, submit that the petition of appeal should have\n\nRAJASTHAN v. RAMDEEN (Goswami, J.) . 141\n\nbeen presented within ninety days of the judgment of the Sessions A Judge which was on March 30, 1974.\n\nSince that was not done and there was not even an application for condonation of delay, the High Court had no alternative then to dismiss the appeal as time-barred.\n\nThe respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining leave of the High Court. It was, therefore, incumbent upon the appellant to have preferred the petition of appeal within ninety days as pres- B cribed under the law.\n\nThe High Court also while refusing leave to appeal to the Supreme Court observed in its order that \"the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378, Cr. p. C.\".\n\nIt is difficult to appreciate the reference to practice, by the High C Court, so far as appeals by State are concerned when the new Code of Criminal Procedure, for the first time, provided for obtaining leave to appeal by the State only from April 1, 1974.\n\nIt is admitted that there are no rules laid down by the High Court in the matter of application for leave to appeal by the State.\n\nIt is, therefore, not possible to decide the matter relying upon the so-called practice soon after the provision has been introduced.\n\nThe matter will, therefore, have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. Section 378(1), so far as it is material for our purpose, provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal.\n\nSub-section (3) of that section provides that such an appeal shall not be entertained except with the leave of the High Court.\n\nUnder the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal.\n\nIt is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal.\n\nIf such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time-barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue.\n\nThe right conferred by section 378 (1), Cr.P.C., upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen !hat the High Court may refuse to exercise its discretion to condone the delay.\n\nThe right conferred under the section cannot be put in peril by an interpretation of section 378, Cr.P.C. which is likely to affect adversely or even perhaps to destroy that right.\n\nBesides, under article 114 of the Limitation Act, in an appeal from an order of acquittal by the State, the period of limitation is\n\nninety days from the date of the order appealed from; whereas in an appeal from an order of acquittal, in any case instituted upon co:nplaint, the period is thirty days from the date of the grant of special leave.\n\nThus there is a clear distinction between the two types of appeals with regard to terminus a quo under article 114.\n\nIt is, therefore, not necessary to wait until the grant of leave by the High Court to present a memorandum of appeal against acquittal at the instance of the State.\n\nThus appeal can be filed by the State within ninety days from the date of the order of acquittal and a prayer may be included in that appeal for entertaining the appeal under subsection (3) of section 378, Cr. P.C. If the leave sought for is not granted by the High Court, the appeal is not entertained and stands dismissed.\n\nWe are, therefore, clearly of opinion that the application for leave to appeal, which was made by the State in this case, is equivalent to a memorandum of appeal under section 373(1) read with sub-section (3) of that section of the Code of Criminal Procedure, 1973.\n\nThe fact that the application mentioned section 378(3), is not decisive of the true character of the application which to all intents and purposes was a memorandum of appeal.\n\nThere was, therefore, no need for presentation of a second petition of appeal nor for an application for condonation of delay in this case.\n\nThe petition of appeal was filed within time and the High Court committed an error of law in dismissing the same as time-barred.\n\nIn the result the appeal is allowed.\n\nThe order of the High Court is set aside. The petition of appeal of June 27, 1974, shall be restored to the file of the High Court and treated as a memorandum of appeal under section 378(1) of the Code of Criminal Procedure, 1973, and, since leave had already been granted by the High Court, the appeal will be disposed of in accordance with law.\n\nM.R.\n\nAppeal allowed.", "total_entities": 99, "entities": [{"text": "STATE OF RAJASTHAN", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "RAMDEEN & OTHERS", "label": "RESPONDENT", "start_char": 23, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "RAMDEEN & OTHERS", "offset_not_found": false}}, {"text": "March 4, 1977", "label": "DATE", "start_char": 41, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "STATE OF RAJASTHAN v.\n\nRAMDEEN & OTHERS\n\nMarch 4, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHJNGHAL, JJJ\n\nCode of .. Crilninal Procedure, 1973, s. 378(1) and (3)-}Vhether two sep'!rate pellltons are 11cressary 1111der sub-section ( 1) and (3), or a co1nposl/e 111e111ora11dun1 of t p:1cal can contain prayer for leave to appall."}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 57, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 76, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "s. 378(1)", "label": "PROVISION", "start_char": 153, "end_char": 162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 378(3)", "label": "PROVISION", "start_char": 376, "end_char": 385, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 393, "end_char": 399, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302 and 3021149", "label": "PROVISION", "start_char": 491, "end_char": 509, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 510, "end_char": 515, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 378", "label": "PROVISION", "start_char": 576, "end_char": 582, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 114(a)", "label": "PROVISION", "start_char": 881, "end_char": 892, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Limitation Act, 1963", "label": "STATUTE", "start_char": 900, "end_char": 920, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 378(1)", "label": "PROVISION", "start_char": 1138, "end_char": 1147, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1963", "statute": "the Limitation Act, 1963"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 1163, "end_char": 1189, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 378", "label": "PROVISION", "start_char": 1391, "end_char": 1402, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure,\n\n1973", "statute": "Code of Criminal Procedure,\n\n1973"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1403, "end_char": 1409, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 378", "label": "PROVISION", "start_char": 1693, "end_char": 1704, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1706, "end_char": 1712, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 378(3)", "label": "PROVISION", "start_char": 1858, "end_char": 1872, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 2205, "end_char": 2215, "source": "ner", "metadata": {"in_sentence": "575/74)\n\nS. M. Jain, !."}}, {"text": ". Makwana", "label": "LAWYER", "start_char": 2218, "end_char": 2227, "source": "ner", "metadata": {"in_sentence": "575/74)\n\nS. M. Jain, !."}}, {"text": "D. Shandari", "label": "LAWYER", "start_char": 2232, "end_char": 2243, "source": "ner", "metadata": {"in_sentence": "Makwana and D. Shandari, for the appellant."}}, {"text": "Doongar Singh", "label": "LAWYER", "start_char": 2265, "end_char": 2278, "source": "ner", "metadata": {"in_sentence": "Doongar Singh and S. K. Gambhir, for the respondents."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 2283, "end_char": 2296, "source": "ner", "metadata": {"in_sentence": "Doongar Singh and S. K. 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The respondents were tried by the Sessions Judge, Merta (Rajasthan) for offences under sections 302, 302/149 and some other minor sections of the Indian Penal Code."}}, {"text": "sections 302, 302", "label": "PROVISION", "start_char": 2465, "end_char": 2482, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2524, "end_char": 2541, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Goparam", "label": "RESPONDENT", "start_char": 2555, "end_char": 2562, "source": "ner", "metadata": {"in_sentence": "Respondent Goparam was acquitted of all the charges."}}, {"text": "sections 302 and 3021149", "label": "PROVISION", "start_char": 2661, "end_char": 2685, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "IPC", "label": "STATUTE", "start_char": 2687, "end_char": 2690, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sangram", "label": "RESPONDENT", "start_char": 2704, "end_char": 2711, "source": "ner", "metadata": {"in_sentence": "Respondent Sangram was convicted under section 304 Part II, IPC."}}, {"text": "section 304", "label": "PROVISION", "start_char": 2732, "end_char": 2743, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 2753, "end_char": 2756, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dayalram", "label": "RESPONDENT", "start_char": 2772, "end_char": 2780, "source": "ner", "metadata": {"in_sentence": "H Respondent Dayalram was convicted under section 324 IPC."}}, {"text": "section 324", "label": "PROVISION", "start_char": 2801, "end_char": 2812, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": 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"ner", "metadata": {"in_sentence": "The Sessions Judge delivered the judgment on March 30, 197 4 and the Code of Criminal Procedure, 1973, came into force from April 1, 197 4- The appeal was, therefore, preferred under the new Code."}}, {"text": "State of Rajasthan", "label": "ORG", "start_char": 3312, "end_char": 3330, "source": "ner", "metadata": {"in_sentence": "It appears that the State of Rajasthan preferred a petition for leave to appeal under section 378(3) of the Code of Criminal Procedure, 1973, on June 27, 1974, which was within the period of limitation prescribed under article 114 (b) of the Limitation Act,\n\n1963."}}, {"text": "section 378(3)", "label": "PROVISION", "start_char": 3378, "end_char": 3392, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 3400, "end_char": 3432, "source": "regex", 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"label": "DATE", "start_char": 6277, "end_char": 6291, "source": "ner", "metadata": {"in_sentence": "141\n\nbeen presented within ninety days of the judgment of the Sessions A Judge which was on March 30, 1974."}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 6520, "end_char": 6540, "source": "ner", "metadata": {"in_sentence": "The respondents further add that it was the practice of the Rajasthan High Court to present a memorandum of appeal after obtaining leave of the High Court."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 6816, "end_char": 6829, "source": "ner", "metadata": {"in_sentence": "The High Court also while refusing leave to appeal to the Supreme Court observed in its order that \"the practice of this court is that separate memo of appeal has to be filed in all matters relating to the grant of leave to appeal under section 378, Cr."}}, {"text": "section 378", "label": "PROVISION", "start_char": 6995, "end_char": 7006, "source": "regex", 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{"document_id": "1977_3_143_148_EN", "year": 1977, "text": "ASHOK KUMAR\n\nSTATE (DELHI ADMINISTRATION)\n\nMarch 7, 1977\n\n[P. K. GOSWAMI AND P. S. KAILASAM, JJ.]\n\nCode of Cri1ninal Procedttrc,-S. 288-Scope of-Evide11ce of recortled in commiuing court-./f could be transferred to Session 5ubstantire evidence.\n\nwitnesses Co1irts-If\n\nThe appellant \\Vas convicted under s. 302/ 34, Indian Penal Code and\n\nenlenced. Statements of two witnesses recorded in the commilting ourt\n\nwere transferred to the record' during trial under s. 288 Cr. P.C. and the trial court treated the evidence of these witnesses as substantive evidence. The lligh Court accepted the testimony of the \\Vitnesses before the comn1itting C Cowt.\n\nIn appeal it was contended that the statements of \\Vitnesses in the comn1itting court transferred under s. 288 \\Vere inadmissible in evidence and should not be acted upon, since no specific portion of their contradictory ta1en1ents hdd been put to ther11 in cross-examination.\n\nDisn1issing the appeal, D HELD : There is no legal inflrn1ity about the transfer of deposition of the witnesses to the record of the Sessions Court under S: 288 Cr. P.C.\n\nIt \\\\'as a legitimate use of discretion by the Sessions Judge.\n\nEvidenru recorded iil the committing court is substantive evidence in this case and is adn1issible. [147 E-El\n\nSection 288 Cr. P .C. which provides for transfer of evidence n:col\"ded in the committing court under certain circumstances is subject inter alia to the E provisions of s. 145 of the Evidence Act.\n\nProvisions of the latter a~;:tion have been substantially complied \\Vith in this case.\n\n[147 F]\n\nin the instant case after dra\\vinc; the attention of the witnesses to their contradictory statements recorded by the police, the statements recorded hy the committing fagistrate \\Vere read out to the witnesses \\Vho did not deny ro have n1ade then1 but' only explained that they had deposed in that n1anner under threat and prcsstFe from the police.\n\n[147 D]\n\nCRJ:\\II>:AL APPELLATE JURiso1cnoN : Criminal Appeal No. 246 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated 5-12-1975 of the Delhi mgh Court in Criminal Appeal No. 1 ll of 1974 ).\n\nR. L. Ko/; li and R. C. Kohli, for the appellant.\n\nG. L. Sanghi and M. N. Shroff, for the respondent.\n\nThe Judgment of he Court was delivered by\n\nGOSWAMI, J.-This appeal by special leave is directed against the judgment of the Delhi High Court confirming the conviction of the appellant under seetion 302 /34, Indian Penal Code and sentence of imprisonment for life. ' '\n\nAshok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under section 302/34 IPC for causing the death of Rajindcr Kumar aged about 23 years.\n\nVijay Kumar was sent for trial under the Children Act, 1960, and is not, therefore, before us.\n\nIn June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari. It is said that Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and Rajinder Kumar was charged for offences under sections 366 and 376, Indian Penal Code, and the case was pending on the date of occurrence.\n\nThe prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar.\n\nHe also saw that Ashok Kumar caught hold of the had of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai.\n\nHaving seen this he walked qu'ckly and when he was at a distance of four or fhe paces from them he heard Ashok Kumar and his brother, Vijay Kumar. telling Rajinder Kumar that they would avenge the kidnapping of thei•r sister no matter whether the court might punish him or not.\n\nHukam Chand then saw both the brothers taking out their knives.\n\nAccused Ashok Kumar struck a blow on the left cheek of Rajinder Kumar.\n\nVijay Kumar struck one blow on Rajinder Kumar which was warded off by him as a result of which his right forearm was struck by the knife on the back of his palm.\n\nRajinder Kumar tried to run away but was pursued by the two brothers and was O\\\"erpowered.\n\nThey then gave several blows on the back of his 1raist, on left abdomen and on the right thigh.\n\nAs a result of these blows Rajinder Kumar fell down on the footpath on the side of the quarters of Mor Sarai.\n\nAccused Ashok Kumar ran away towards the station along with his brother. Hukam Chand sent for a taxi and took Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-\n\nl. Stab wound 4\" x 2\" left inter scapular region with surrounding surgital emphysema.\n\n2. Stab left lumber region 2\" x 2\".\n\n3. Stab left thigh 'l!' x l\".\n\n4. Stab left cheek 'l!' x 2\".\n\n5. Stab left hand 4\" x 1\" on the dorsum.\n\nConstable, Vijay Kumar, (PW 7) who was on duty at the Irwin Hospital informed the Police Station, Kotwali, about the admission of Rajinder Kumar in the Hospital.\n\nConstable, Ram Saran (PW\n\nASHOK KUMAR v. STATE (DELHI ADMN.) (Goswami, J.) 145\n\n14) made an entry in the daily diary about the report received from the Irwin Hospitai.\n\nHe sent a copy of this report to S. I. Dewan Singh (PW 20) who proceeded to the Ho.spital.\n\nWhen PW 20 arrived Rajinder Kumar was not in a pos1hon to make a statement and he recorded the statement of Hukam Chand (Ex. PW 1 I A) at about 8.40 P.M. which is the first information report registered under section 307 /34 JPC.\n\nAccording to the Doctor the punctured injury at the left intr scapular region was sufficient to cause his death ln the ordinary <:ourse of nature.\n\nOn the death of Rajinder Kumar at 11.35 P.M., the same night, the section under which the case was registered was altered to section 302 IPC and investigation proceeded accordingly.\n\nNames of Ashok Kumar and Vijay Kumar appeared in the first information report, as the assailants.\n\nThe first information report also disclosed that there was another person. Mohar Singh (PW 2) with Hukam Chand. The accused, Ashok Kumar, was arrested on May 25, 1973. near Jat Dharamshala in Jamuna Bazar.\n\nIt is said that on the following day Ashok Kumar ma.de a statement before Inspector Sardar Singh, Station Houe Officer.\n\nP. S. Kotwali. Delhi (PW 21) in pursuance of which on May 28. 1973, a blood stained knife (Ex. P-7) was recovered. Evi•dencc was also led by the prosecution to prove recovery of a shirt and pantaloons having stains of blood although these had already been washed from the person of the accused, Ashok Kumar, when he was arrested on May 25, 1973.\n\nThe serological report showed the origin of these stains as human blood. At the trial not only Hukam Chand gave evidence as an eye witness, but Mohar Singh (PW 2).\n\nRajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also produced as eye witnesses.\n\nWhile PW 1. Hukam Chand, continued to ell his mebncholy story. PWs 3 and 4 did not support the prosecution and were accordingly declared hostile.\n\nIt was shown in the course of their cross-examination that they had earlier during the investigation n1ade statements as eye witnesses to the occurrence.\n\nThe statements of PWs 3 and 4 which were recorded in the committing court were transferred to the record during the trial under section 288, Criminal Procedure Code.\n\nIn the committing court these witnesses. had stated that they had seen the accused assaulting the deceased with a k111fc.\n\nP.W. 2. Mohar Singh. was not examined before the committing court\n\n~ .\n\nThe acus'.:d denied the charge and stated that he was arrested by the poltce m Agra on May 24, 1973, and not on the following day t. Jat Dhaamshala as alleged by the prosecution.\n\nAfter eammmg. the evidence of the defence witnesses as well as the station diary entries about the .deprture of the Head Constable. Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable\" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the\n\nacused from there. The Sessions Judge also did not rely upon the disclosure stateent mad~ b~ the accused and also ignored the recovery of the kmfe as bemg m pursuance of that disclosure statement.\n\nThe Sessions Judge observed that it was very unusual in a murder case that recovery of the offending weapon was so belated.\n\nThe trial court convicted the accused on the testimony of Hukam Chand (PW I) and accepted the evidence of PWs 3 and 4 recorded in the committing court.\n\nReferring to PWs 3 and 4, the trial court observed as follows :-\n\n\"I treat the evidence of PW 3 Rajinder Kumar Jain and PW 4 Puran as substantive evidence under section 288 Cr. P. C.\n\nI find abundant corroboration thereof in the testimony of PW I Hukam Chand.\n\nThis evidence treated as substantive evidence under section 288 Cr. P. C. taken into consideration with the testimony of PW l Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay.\n\nI accept this part of the testimony\".\n\nWith regard to the evidence of PW I the trial court observed as follows :-\n\n\"In the case before me Hukam Chand is a father of the deceased.\n\nHe admits the enmity on the part of the accused towards the deceased.\n\nHe mentioned the name of the accused in the FIR and gave complete sequence of events.\n\nHe did not lose any time.\n\nHe had no time to manufacture things so as to be incorporated in th.e report.\n\nThis is a strong circumstance in favour of the prosecution in this case\".\n\nThe High Court, as stated earlier, confirmed the conviction by accepting the testimony of Hukam Chand as well as the statements made by PWs 3 and 4 before the committing court in wh;'Ch they had clearly supported the prosecution case.\n\nSince the accused had opportunity to cross examine the PWs 3 and 4 in the committing court the fact that he had not actually cross-exam;•ned these witnesses is of no consequence.\n\nApart from that during the Sessions trial their explanation was that they had made the statements before the committing court under the the.eat of the police. This explanation had been rejected by both the courts.\n\nMr. Kohli submits that PWs 3 and 4 were not mentioned in the first information report although PW I mentioned, therein, at three places about the presence of Mohar Singh (PW 2) who was not even exam:•ned before the committing court.\n\nSince PW 2 denied having seen the occurrence, his evidence is of no assistance and the fact that he was contradicted by his previous statement made before the police only dubs him as an nnreliable witness.\n\nASHOK KUMAR v. STATE (DELHI ;.DMN.) (Goswami, J.) 147\n\nSo far as PWs 3 and 4 are concerned, we do not see much force in the contention that their names were not mentioned in the first information report.\n\nIt is possible that even if they had seen the occmrence from some other point, PW 1 hastening away to the Hospital might not have noticed them.\n\nBesides, when S. I. Diwan Singh (PW 20) went to the place of occurrence with PW 1 (Hukarii Chand) at about 9.45 P.M. the same night he found a large crowd there.\n\nPW 20 stated that he recorded at that time the statements of Mohar\n\nSingh (PW 2), Rajinder Kumar Jain (PW 3) and Puran s;•ngh\n\n(PW 4).\n\nThe om;•; sion of the names of PWs 3 and 4 in the first information report lodged at 8.45 P.M. cannot, therefore, be of much significance to reject their testimony on that score.\n\nNext, Mr. Kohli submits that the statements of PWs 3 and 4 recorded in the committing court and transferred under section 288, Crimi'nal Procedure Code, is inadmissible and should riot be acted upon, since no specific portion of their contradictory statements had been put to them in the course o! their cross-examination by the public prosecutor.\n\nWe find that after drawing the attention of these two witnesses to their contradictory statements recorded by the police with regard to t:'Jeir having seen the assault which they denied, the entire respective statements recorded by the committing magistrate in Hindi were read out to the witness who did not deny to have made the same but only explained that they had deposed in that manner under threat and pressure from the police.\n\nSection 288, Criminal Procedure Code, which provides for transfer of evidence ~-ecorded in the committing court under certain circumstances, is subject, inter alia, to the provisions of section 145 of the Evidence Act, and the provisions of the latter section have been substantially complied with in this case. Under the circumstances there is no legal infirmity about the transfer of the deposition of the two witnesses to the record of the Sessions Court under section 288, Criminal Procedure Code, and it was a legitimate use of discretion by the Sessions Judge in adopting this course. Their evidence recorded in the committing court is substantive evidence in this case and is clearly admissible.\n\nRaji'D.der Kumar Jain (PW 3) had written an inland letter which. the Inspector General of Police received on January 18, 1974, complaining about the police torture in threatening him to give evidence in the court.\n\nHe was examined before the Sessions Judge on January 19, 1974, when he, for the first time, denied in c, ourt to have seen the occurrence.\n\nHe had been examined in the commitfrng court on November 21, 1973, about six months after the occurrence when he had made no complaint about police torture and gave evidence as an eye witness to the occurrence.\n\nThe trial court was, therefore, perfectly justified in not accepting the belated explanation of PWs 3 and 4 about police threat under which alone they stated that they had supported the prosecution case.\n\nAlthough the High Court was not prepared to accept the defence case about the arrest of the accused in Agra, it is not necessary to pursue the matter further. It is also not necessary to deal with I.he recovery of the knife nd the blood stained clothes about which the High Court was not prepared to accept the reasons given by the Sessions Judge for discarding that evidence.\n\nW c agree with the Sessions Judge that it was unusual for the police to delay recovery of the blood-stained knife i•n a murder case. But since the two courts have relied. upon the evidence of the three eye witnesses, it is not necessary to consider whether the High Court was right in differing from the views of the trial court in the matter of the recovery of the knife and the clothes.\n\nAfter having perused the entire evidence, we see no reason to C interfere with the conviction in thi~ case.\n\nIn the result the appeal is dismissed.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 81, "entities": [{"text": "ASHOK KUMAR", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "ASHOK KUMAR", "offset_not_found": false}}, {"text": "STATE (DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 13, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "STATE (DELHI ADMINISTRATION)", "offset_not_found": false}}, {"text": "March 7, 1977", "label": "DATE", "start_char": 43, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "ASHOK KUMAR\n\nSTATE (DELHI ADMINISTRATION)\n\nMarch 7, 1977\n\n[P. 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L. Ko/", "label": "OTHER_PERSON", "start_char": 2130, "end_char": 2139, "source": "ner", "metadata": {"in_sentence": "R. L. Ko/; li and R. C. Kohli, for the appellant."}}, {"text": "R. C. Kohli", "label": "LAWYER", "start_char": 2148, "end_char": 2159, "source": "ner", "metadata": {"in_sentence": "R. L. Ko/; li and R. C. Kohli, for the appellant."}}, {"text": "G. L. Sanghi", "label": "JUDGE", "start_char": 2181, "end_char": 2193, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and M. N. Shroff, for the respondent."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 2198, "end_char": 2210, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and M. N. Shroff, for the respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 2276, "end_char": 2283, "source": "ner", "metadata": {"in_sentence": "The Judgment of he Court was delivered by\n\nGOSWAMI, J.-This appeal by special leave is directed against the judgment of the Delhi High Court confirming the conviction of the appellant under seetion 302 /34, Indian Penal Code and sentence of imprisonment for life. ' '"}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 2357, "end_char": 2373, "source": "ner", "metadata": {"in_sentence": "The Judgment of he Court was delivered by\n\nGOSWAMI, J.-This appeal by special leave is directed against the judgment of the Delhi High Court confirming the conviction of the appellant under seetion 302 /34, Indian Penal Code and sentence of imprisonment for life. ' '"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2440, "end_char": 2457, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ashok Kumar", "label": "PETITIONER", "start_char": 2502, "end_char": 2513, "source": "ner", "metadata": {"in_sentence": "Ashok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under section 302/34 IPC for causing the death of Rajindcr Kumar aged about 23 years.", "canonical_name": "ASHOK KUMAR"}}, {"text": "section 302", "label": "PROVISION", "start_char": 2638, "end_char": 2649, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 2653, "end_char": 2656, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Rajindcr Kumar", "label": "OTHER_PERSON", "start_char": 2682, "end_char": 2696, "source": "ner", "metadata": {"in_sentence": "Ashok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under section 302/34 IPC for causing the death of Rajindcr Kumar aged about 23 years.", "canonical_name": "Ra jinder Kumar"}}, {"text": "Vijay Kumar was sent for trial under the Children Act, 1960", "label": "STATUTE", "start_char": 2719, "end_char": 2778, "source": "regex", "metadata": {}}, {"text": "Jai Bhagwan", "label": "OTHER_PERSON", "start_char": 2828, "end_char": 2839, "source": "ner", "metadata": {"in_sentence": "In June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari."}}, {"text": "Rajinder Kumar", "label": "OTHER_PERSON", "start_char": 2915, "end_char": 2929, "source": "ner", "metadata": {"in_sentence": "In June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari.", "canonical_name": "Ra jinder Kumar"}}, {"text": "Saroj Kumari", "label": "OTHER_PERSON", "start_char": 2976, "end_char": 2988, "source": "ner", "metadata": {"in_sentence": "In June 1971 Jai Bhagwan, father of the accused, had complained to the police against the deceased, Rajinder Kumar, alleging that he had kidnapped his daughter, Saroj Kumari."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 3071, "end_char": 3080, "source": "ner", "metadata": {"in_sentence": "It is said that Saroj Kumari was recovered from the company of Rajinder Kumar at Ahmedabad and Rajinder Kumar was charged for offences under sections 366 and 376, Indian Penal Code, and the case was pending on the date of occurrence."}}, {"text": "sections 366 and 376", "label": "PROVISION", "start_char": 3131, "end_char": 3151, "source": "regex", "metadata": {"linked_statute_text": "Vijay Kumar was sent for trial under the Children Act, 1960", "statute": "Vijay Kumar was sent for trial under the Children Act, 1960"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3153, "end_char": 3170, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 22, 1973", "label": "DATE", "start_char": 3257, "end_char": 3269, "source": "ner", "metadata": {"in_sentence": "The prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar."}}, {"text": "Hukum Chand", "label": "WITNESS", "start_char": 3271, "end_char": 3282, "source": "ner", "metadata": {"in_sentence": "The prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar."}}, {"text": "Ashok Kumar", "label": "PETITIONER", "start_char": 3472, "end_char": 3483, "source": "ner", "metadata": {"in_sentence": "The prosecution case is that on May 22, 1973, Hukum Chand (PW 1), father of the deceased, Rajinder Kumar, was coming back from the Fountain in Chandni Chowk on H. C. Road and took a turn towards right leading to Mor Sarai when he saw the accused, Ashok Kumar, and his brother, Vijay Kumar, having surrounded his son Rajinder Kumar.", "canonical_name": "ASHOK KUMAR"}}, {"text": "Mor Sarai", "label": "OTHER_PERSON", "start_char": 3695, "end_char": 3704, "source": "ner", "metadata": {"in_sentence": "He also saw that Ashok Kumar caught hold of the had of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai."}}, {"text": "Hukam Chand", "label": "OTHER_PERSON", "start_char": 3986, "end_char": 3997, "source": "ner", "metadata": {"in_sentence": "Hukam Chand then saw both the brothers taking out their knives."}}, {"text": "Ra jinder Kumar", "label": "OTHER_PERSON", "start_char": 4696, "end_char": 4711, "source": "ner", "metadata": {"in_sentence": "Hukam Chand sent for a taxi and took Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-\n\nl. Stab wound 4\" x 2\" left inter scapular region with surrounding surgital emphysema.", "canonical_name": "Ra jinder Kumar"}}, {"text": "Irwin Hospital", "label": "ORG", "start_char": 4725, "end_char": 4739, "source": "ner", "metadata": {"in_sentence": "Hukam Chand sent for a taxi and took Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-\n\nl. Stab wound 4\" x 2\" left inter scapular region with surrounding surgital emphysema."}}, {"text": "U. Kaul", "label": "WITNESS", "start_char": 4769, "end_char": 4776, "source": "ner", "metadata": {"in_sentence": "Hukam Chand sent for a taxi and took Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-\n\nl. Stab wound 4\" x 2\" left inter scapular region with surrounding surgital emphysema."}}, {"text": "Vijay Kumar", "label": "WITNESS", "start_char": 5074, "end_char": 5085, "source": "ner", "metadata": {"in_sentence": "Constable, Vijay Kumar, (PW 7) who was on duty at the Irwin Hospital informed the Police Station, Kotwali, about the admission of Rajinder Kumar in the Hospital."}}, {"text": "Ram Saran", "label": "OTHER_PERSON", "start_char": 5237, "end_char": 5246, "source": "ner", "metadata": {"in_sentence": "Constable, Ram Saran (PW\n\nASHOK KUMAR v. STATE (DELHI ADMN.) ("}}, {"text": "Irwin Hospitai", "label": "ORG", "start_char": 5378, "end_char": 5392, "source": "ner", "metadata": {"in_sentence": "Goswami, J.) 145\n\n14) made an entry in the daily diary about the report received from the Irwin Hospitai."}}, {"text": "S. I. Dewan Singh", "label": "WITNESS", "start_char": 5428, "end_char": 5445, "source": "ner", "metadata": {"in_sentence": "He sent a copy of this report to S. I. Dewan Singh (PW 20) who proceeded to the Ho.spital."}}, {"text": "section 307", "label": "PROVISION", "start_char": 5696, "end_char": 5707, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 5991, "end_char": 6002, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 6003, "end_char": 6006, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mohar Singh", "label": "WITNESS", "start_char": 6223, "end_char": 6234, "source": "ner", "metadata": {"in_sentence": "Mohar Singh (PW 2) with Hukam Chand."}}, {"text": "May 25, 1973", "label": "DATE", "start_char": 6302, "end_char": 6314, "source": "ner", "metadata": {"in_sentence": "The accused, Ashok Kumar, was arrested on May 25, 1973."}}, {"text": "Sardar Singh", "label": "OTHER_PERSON", "start_char": 6439, "end_char": 6451, "source": "ner", "metadata": {"in_sentence": "It is said that on the following day Ashok Kumar ma.de a statement before Inspector Sardar Singh, Station Houe Officer."}}, {"text": "P. S. Kotwali", "label": "WITNESS", "start_char": 6476, "end_char": 6489, "source": "ner", "metadata": {"in_sentence": "P. S. Kotwali."}}, {"text": "Delhi", "label": "GPE", "start_char": 6491, "end_char": 6496, "source": "ner", "metadata": {"in_sentence": "Delhi (PW 21) in pursuance of which on May 28."}}, {"text": "May 28. 1973", "label": "DATE", "start_char": 6530, "end_char": 6542, "source": "ner", "metadata": {"in_sentence": "Delhi (PW 21) in pursuance of which on May 28."}}, {"text": "Hukam Chand", "label": "WITNESS", "start_char": 6918, "end_char": 6929, "source": "ner", "metadata": {"in_sentence": "At the trial not only Hukam Chand gave evidence as an eye witness, but Mohar Singh (PW 2)."}}, {"text": "Rajinder Kumar Jain", "label": "WITNESS", "start_char": 6988, "end_char": 7007, "source": "ner", "metadata": {"in_sentence": "Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also produced as eye witnesses."}}, {"text": "Puran Singh", "label": "WITNESS", "start_char": 7019, "end_char": 7030, "source": "ner", "metadata": {"in_sentence": "Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also produced as eye witnesses."}}, {"text": "section 288", "label": "PROVISION", "start_char": 7506, "end_char": 7517, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 7519, "end_char": 7542, "source": "regex", "metadata": {}}, {"text": "May 24, 1973", "label": "DATE", "start_char": 7827, "end_char": 7839, "source": "ner", "metadata": {"in_sentence": "The acus'.:d denied the charge and stated that he was arrested by the poltce m Agra on May 24, 1973, and not on the following day t. Jat Dhaamshala as alleged by the prosecution."}}, {"text": "Manohar Lal", "label": "OTHER_PERSON", "start_char": 8052, "end_char": 8063, "source": "ner", "metadata": {"in_sentence": "Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable\" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the\n\nacused from there."}}, {"text": "Constab.le Bal~r Singh", "label": "WITNESS", "start_char": 8068, "end_char": 8090, "source": "ner", "metadata": {"in_sentence": "Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable\" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the\n\nacused from there."}}, {"text": "Agra", "label": "GPE", "start_char": 8229, "end_char": 8233, "source": "ner", "metadata": {"in_sentence": "Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable\" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the\n\nacused from there."}}, {"text": "Puran", "label": "WITNESS", "start_char": 8852, "end_char": 8857, "source": "ner", "metadata": {"in_sentence": "Referring to PWs 3 and 4, the trial court observed as follows :-\n\n\"I treat the evidence of PW 3 Rajinder Kumar Jain and PW 4 Puran as substantive evidence under section 288 Cr."}}, {"text": "section 288", "label": "PROVISION", "start_char": 8888, "end_char": 8899, "source": "regex", "metadata": {"statute": null}}, {"text": "I Hukam Chand", "label": "WITNESS", "start_char": 8972, "end_char": 8985, "source": "ner", "metadata": {"in_sentence": "P. C.\n\nI find abundant corroboration thereof in the testimony of PW I Hukam Chand."}}, {"text": "section 288", "label": "PROVISION", "start_char": 9040, "end_char": 9051, "source": "regex", "metadata": {"statute": null}}, {"text": "l Hukam Chand", "label": "WITNESS", "start_char": 9112, "end_char": 9125, "source": "ner", "metadata": {"in_sentence": "P. C. taken into consideration with the testimony of PW l Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay."}}, {"text": "Ashok accused", "label": "OTHER_PERSON", "start_char": 9259, "end_char": 9272, "source": "ner", "metadata": {"in_sentence": "P. C. taken into consideration with the testimony of PW l Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay."}}, {"text": "Vijay", "label": "OTHER_PERSON", "start_char": 9289, "end_char": 9294, "source": "ner", "metadata": {"in_sentence": "P. C. taken into consideration with the testimony of PW l Hukam Chand provides a complete picture by ocular evidence of what happened to the victim Rajinder Kumar on that fateful evening at the hands of Ashok accused and his brother Vijay."}}, {"text": "Kohli", "label": "OTHER_PERSON", "start_char": 10451, "end_char": 10456, "source": "ner", "metadata": {"in_sentence": "Mr. Kohli submits that PWs 3 and 4 were not mentioned in the first information report although PW I mentioned, therein, at three places about the presence of Mohar Singh (PW 2) who was not even exam:•ned before the committing court."}}, {"text": "S. I. Diwan Singh", "label": "WITNESS", "start_char": 11252, "end_char": 11269, "source": "ner", "metadata": {"in_sentence": "Besides, when S. I. Diwan Singh (PW 20) went to the place of occurrence with PW 1 (Hukarii Chand) at about 9.45 P.M. the same night he found a large crowd there."}}, {"text": "Hukarii Chand", "label": "WITNESS", "start_char": 11321, "end_char": 11334, "source": "ner", "metadata": {"in_sentence": "Besides, when S. I. Diwan Singh (PW 20) went to the place of occurrence with PW 1 (Hukarii Chand) at about 9.45 P.M. the same night he found a large crowd there."}}, {"text": "Mohar\n\nSingh", "label": "WITNESS", "start_char": 11462, "end_char": 11474, "source": "ner", "metadata": {"in_sentence": "PW 20 stated that he recorded at that time the statements of Mohar\n\nSingh (PW 2), Rajinder Kumar Jain (PW 3) and Puran s;•ngh\n\n(PW 4)."}}, {"text": "section 288", "label": "PROVISION", "start_char": 11831, "end_char": 11842, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 288", "label": "PROVISION", "start_char": 12501, "end_char": 12512, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 12514, "end_char": 12537, "source": "regex", "metadata": {}}, {"text": "section 145", "label": "PROVISION", "start_char": 12687, "end_char": 12698, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 288", "label": "PROVISION", "start_char": 12965, "end_char": 12976, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 12978, "end_char": 13001, "source": "regex", "metadata": {}}, {"text": "Raji'D.der Kumar Jain", "label": "WITNESS", "start_char": 13205, "end_char": 13226, "source": "ner", "metadata": {"in_sentence": "Raji'D.der Kumar Jain (PW 3) had written an inland letter which."}}, {"text": "January 18, 1974", "label": "DATE", "start_char": 13314, "end_char": 13330, "source": "ner", "metadata": {"in_sentence": "the Inspector General of Police received on January 18, 1974, complaining about the police torture in threatening him to give evidence in the court."}}, {"text": "January 19, 1974", "label": "DATE", "start_char": 13465, "end_char": 13481, "source": "ner", "metadata": {"in_sentence": "He was examined before the Sessions Judge on January 19, 1974, when he, for the first time, denied in c, ourt to have seen the occurrence."}}, {"text": "November 21, 1973", "label": "DATE", "start_char": 13608, "end_char": 13625, "source": "ner", "metadata": {"in_sentence": "He had been examined in the commitfrng court on November 21, 1973, about six months after the occurrence when he had made no complaint about police torture and gave evidence as an eye witness to the occurrence."}}]}
{"document_id": "1977_3_149_152_EN", "year": 1977, "text": "STATE OF WEST BENGAL & ORS.\n\nWASH.I AHMED ETC.\n\nMarch 7, 1977\n\n[P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ.J\n\nTaxing statute-Principles of construction of words in a taxing statute- Bengal Finance (Sales Tax) Act, 1941, Schedule I, Item 6-\"Green ginger\", whether 1neans a \"vegetable\" falling within the category of goods described as \"vegetables, green or dried con1111011ly known as subji, tarkari or sak\" and thus exempt from tax liability.\n\nSection 6 (1) of the Bengal Finance (Sales Tax) Act 1941 exempts from tax liability \"vegetables, green or dried commonly known as subji, tarkari or sak\" when not sold io. sealed containers. The Sales Tax Authorities levied sales tax on \"green ginger\" sold by the respondents, taking the view that inasmuch as green ginger is used to add flavour and taste to food, it is not \"vegetable commonly known as subji, tarkari or sak\". A writ petition challenging the validity of the orders of assessment was allowed by the Calcutta High Court which held that green ginger is vegetable within the rrieaning of that expression as used in Item 6 of the First Schedule to the Bengal Finance (Sales Tax) Act, 1941.\n\nDismissing the State appeals by Special Leave the Court,\n\nHELD : ( 1) Green ginger is included within the meaning of the \\Vords \"vegetables-commonly kµ.oWn as sub.ii, tarkari or sak\" in Item 6 of Schedule I and its sales are exempt from tax under s. 6 of the Bengal Finance (Sales\n\nTax) Act, 1941.\n\n[152 DJ\n\n(2) The word \"vegetable\" though not defined in the Act, being a word\n\nof every day use, must be construed not in any technical sense, nor from E any botanical_point of view but as understood in common parlance i.e. denoting class of vegetable~• which are grown in a kitchen garden or in a farm and are used for the table. The word \"vegetable\" in Item 6 of Schedule I to Lhe Act, so construed, by giving its popular sense meaning, \"that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it\" denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Green ginger obviously is a vegetable grown in a kitchen garden or in a farm and it is used for the table. It may not be used as a principal item of the meal, F but it certainly forms part of the meal as a subsidiary item. Green ginger 1s generally regarded as included within the meaning of the word \"vegetable\" as understood in common parlance.\n\n[150 F-H, 151 G-H, 152 A]\n\nRan1aratar Budilaiprasad v. Assistant Sales Tax Officer Akola, A.LR_ 1961 S.C'. 1325; !i,-fls. Motirur Za111indary Co. Ltd. v. State of Bihar A.!.H. 1962 >.C. 660, applied.\n\nMad:1ya Pradr:s!J Pan Merchants' Association, Santra Market, Nagpur v.\n\nG State of Madhya Prad, sh 7 S.T. Cases 99 at 102, referred to.\n\nGrenfefl v. l.R.C. (1876) 1 Ex. O. 242 at 248: Planters Nut and Chocolate Co. Ltd. v. The King (1951) 1 D.L.R. 385; 200 Chests of Tea (1824) 9 Wheaton (U.S.) 430, at 438 quoted with approval.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1546-1551 of 1971.\n\n(From the Judgment and Ordr dated 20-12-1968 of the Calcutia High Court in Appeals from Ongmal Orders Nos. 556-559, 571 and 572 of 1967)\n\nA Lal Narni11 Si11ha, Sol. Gencrnl and G. S. Chatterjee, for the appellants.\n\nP11rushottwn Chatterjee and Rathin Das, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-The short question which arises for determination in these appeals is whether green ginger falls within the category of goods described as \"vegetables, green or dried, commonly known as \"sabji, tarkari or sak\" in Item ( 6) of Schedule I to the Bengal Finance (Sales Tax) Act, 1941. If it is covered by this description, it would be exempt from sales tax imposed under the provisions of that Act.\n\nThe Sales Tax authorities held that green ginger is used lo add llavour and taste to food and it is, therefore, not vegetable commonly known as sabji, tarkari or sak\".\n\nThe orders of the Sales Tax authorities were challenged in a writ petition filed under article 226 of the Constitution and a Single Judge of the High Court who heard the writ petition disagreed with the view taken by the Sales Tax authorities and held that green ginger is vegetable within the meaning of that expression as used in Item (6) of the First Schedule to the Act.\n\nThis view of the learned Single Judge was affirmed by a Division Bench of the High Court on appeal under clause ( 15) of the Letters Patent. Hence the present appeal by the State with special leave obtained from this Court.\n\nThe Bengal Finance (Sales Tax) Act, 1941 levies sales tax on the taxable turnover of a dealer computed in accordance with the provisions of that Act.\n\nSection 6, sub-section ( 1) provides that no tax shall be payable under the Act on the sale of goods specified in the first column of Schedule I, subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereat and Item (6) of Schedule I specifies in the first column \"vegetable, green or dried, commonly known as \"Sabji, tarkari or sak\" so that no tax is payable on the sale of goods falling within this category, subject to the exception set out in the second column, namely, that they would be liable to bear tax \"when sold in sealed containers.\" It was common ground in the present case that green ginger was not sold by the assessee in sealed containers and the only question which, therefore, requires to be considered is whether green ginger can be regarded as vegetable commonly known as 'sabji, tarkari or sak'.\n\nNow, the word 'vegetable' is not defined in the Act but it is well settled as a result of several decisions of this Court of which we may mention only two, namely, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, A kola((') and M/s Motipur Jamindary Co. Ltd. v. State of Bihar( 2 ) that this word, being a word of every day use, mrust be construed not in any technical sense, nor from any botanical point of view, but as understood in common parlance.\n\nThe question which arose in Ramavatar's case (supra) was whether betel leaves are \"vegetables\"\n\n(I) A.LR. 1961 S.C. 1325.\n\n(2) A.LR. 1962 S.C. 660.\n\nWEST BENGAL v. WASH! AHMED (Bhagwati, J.) 15 1\n\nand this court held that they are not included within that term.\n\nThis Court quoted with approval the following passage from the judgment of the High Court of Madhya Pradesh in Madhy{]j Pradesh Pan Mercha11ts' Association, Samra Market, tyagpur v. State of Madhya Pradesh(') :\n\n\"In our opinion, the word \"vegetables\" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes betore.\n\nThe term \"vegetables\" is to be understood as commonly understood denoting. those classes of vegetable matter which are grown in kitchen gardens and are used for the table.\", and observed that \"the word 'vegetable' in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table''.\n\nThis meaning of the word 'vegetable' was reiterated by this Court in Motipur Zamfodary case (supra) where this Court was called upon to consider whether sugarcane can be regarded as vegetable and it was held by this Conrt that sugarcane cannot be said to fall within the definition of the word 'vegetable'.\n\nIt is interesting to note that the same principle of construction in relation to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock B. pointed out in Grenfell v. l.R.C. ( 2) that \"if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words \"popular sense''-that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.' \" So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King,(') while interpreting the words 'fruit' and 'vegetable' in the Excise Act : \"They\n\nare ordinary words in every day use and are, therefore, to be construed according to their popular sense\".\n\nThe same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea(') where the learned Judge said that \"the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does \"not suppose our merchants to be naturalists, or geologists, or botanists\" ''.\n\nIJ will, therefore, be seen that the word 'vegetable' in Item (6) of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning \"that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it\" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table.\n\nNow, obviously green ginger is a vegetable\n\n(!) 7 S.T.C. 99 at 102.\n\n(2) (1876) 1 Ex. D. 242 at 248.\n\n(3) (1951) 1 D.L.R. 385.\n\n(4) (1824), 9 Wheaton (U.S.) 430 at 438. l 1-240SCI/77\n\ngrown in a kitchen garden or in a farm and is nsed for the table.\n\nIt may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the Sales Tax authorities showing that the Railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnigbt:y showing the rates in the municipal market.\n\nThere can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word 'vegetable' as understood in common parlance.\n\nThat a part, we find that Item ( 6) speaks not simply of vegetables but \"vegetables-;; ommonly known as sabji, tarkari or sak\" and the Division Bench of the High Court held green ginger to fall within the meaning of the words \"sabji, tarkari or sak\". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two judges of the High Court who may reasonably be expected to be quite conversant with that language.\n\nWe are accordingly of the view that green ginger is included within the meaning of the words \"vegetables-commonly known as sabji, tarkari or\n\nsak\" in Item ( 6) of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act.\n\nThe result is that the appeals fail and are dismissed with costs.\n\nCosts will be only in one set.\n\nS.R.\n\nAppeals dismissed.", "total_entities": 32, "entities": [{"text": "STATE OF WEST BENGAL & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL & ORS", "offset_not_found": false}}, {"text": "WASH.I AHMED ETC", "label": "RESPONDENT", "start_char": 29, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "WASHI AHMED ETC", "offset_not_found": false}}, {"text": "March 7, 1977", "label": "DATE", "start_char": 48, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "March 7, 1977\n\n[P. N. BHAGWATI ANDS."}}, {"text": "P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 64, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 220, "end_char": 230, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 444, "end_char": 453, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 959, "end_char": 978, "source": "ner", "metadata": {"in_sentence": "A writ petition challenging the validity of the orders of assessment was allowed by the Calcutta High Court which held that green ginger is vegetable within the rrieaning of that expression as used in Item 6 of the First Schedule to the Bengal Finance (Sales Tax) Act, 1941."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 1086, "end_char": 1100, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 1343, "end_char": 1353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 1394, "end_char": 1398, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to Lhe Act", "label": "STATUTE", "start_char": 1811, "end_char": 1832, "source": "regex", "metadata": {}}, {"text": "A Lal Narni11 Si11", "label": "OTHER_PERSON", "start_char": 3200, "end_char": 3218, "source": "ner", "metadata": {"in_sentence": "556-559, 571 and 572 of 1967)\n\nA Lal Narni11 Si11ha, Sol."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 3239, "end_char": 3255, "source": "ner", "metadata": {"in_sentence": "Gencrnl and G. S. Chatterjee, for the appellants."}}, {"text": "P11rushottwn Chatterjee", "label": "LAWYER", "start_char": 3278, "end_char": 3301, "source": "ner", "metadata": {"in_sentence": "P11rushottwn Chatterjee and Rathin Das, for the respondents."}}, {"text": "Rathin Das", "label": "LAWYER", "start_char": 3306, "end_char": 3316, "source": "ner", "metadata": {"in_sentence": "P11rushottwn Chatterjee and Rathin Das, for the respondents."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 3384, "end_char": 3392, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-The short question which arises for determination in these appeals is whether green ginger falls within the category of goods described as \"vegetables, green or dried, commonly known as \"sabji, tarkari or sak\" in Item ( 6) of Schedule I to the Bengal Finance (Sales Tax) Act, 1941."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 3623, "end_char": 3633, "source": "regex", "metadata": {"statute": null}}, {"text": "article 226", "label": "PROVISION", "start_char": 4050, "end_char": 4061, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 4311, "end_char": 4325, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 4715, "end_char": 4724, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 4849, "end_char": 4859, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 4991, "end_char": 5001, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramavatar", "label": "OTHER_PERSON", "start_char": 6073, "end_char": 6082, "source": "ner", "metadata": {"in_sentence": "The question which arose in Ramavatar's case (supra) was whether betel leaves are \"vegetables\"\n\n(I) A.LR."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 6387, "end_char": 6415, "source": "ner", "metadata": {"in_sentence": "This Court quoted with approval the following passage from the judgment of the High Court of Madhya Pradesh in Madhy{]j Pradesh Pan Mercha11ts' Association, Samra Market, tyagpur v. State of Madhya Pradesh(') :\n\n\"In our opinion, the word \"vegetables\" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes betore."}}, {"text": "Motipur Zamfodary", "label": "OTHER_PERSON", "start_char": 7157, "end_char": 7174, "source": "ner", "metadata": {"in_sentence": "This meaning of the word 'vegetable' was reiterated by this Court in Motipur Zamfodary case (supra) where this Court was called upon to consider whether sugarcane can be regarded as vegetable and it was held by this Conrt that sugarcane cannot be said to fall within the definition of the word 'vegetable'."}}, {"text": "Pollock B.", "label": "OTHER_PERSON", "start_char": 7572, "end_char": 7582, "source": "ner", "metadata": {"in_sentence": "Pollock B. pointed out in Grenfell v. l.R.C. ( 2) that \"if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words \"popular sense''-that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.' \""}}, {"text": "Supreme Court of Canada", "label": "COURT", "start_char": 8057, "end_char": 8080, "source": "ner", "metadata": {"in_sentence": "So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King,(') while interpreting the words 'fruit' and 'vegetable' in the Excise Act : \"They\n\nare ordinary words in every day use and are, therefore, to be construed according to their popular sense\"."}}, {"text": "Story", "label": "JUDGE", "start_char": 8391, "end_char": 8396, "source": "ner", "metadata": {"in_sentence": "The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea(') where the learned Judge said that \"the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does \"not suppose our merchants to be naturalists, or geologists, or botanists\" ''."}}, {"text": "Schedule I to the Act", "label": "STATUTE", "start_char": 8849, "end_char": 8870, "source": "regex", "metadata": {}}, {"text": "Corporation of Calcutta", "label": "ORG", "start_char": 10118, "end_char": 10141, "source": "ner", "metadata": {"in_sentence": "The assessee in fact placed evidence before the Sales Tax authorities showing that the Railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnigbt:y showing the rates in the municipal market."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 11074, "end_char": 11084, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 11140, "end_char": 11149, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_14_17_EN", "year": 1977, "text": "KESHEORAO\n\nNARNARA YAN & ANOTHER\n\nFebruary 17, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nConstitution of India-Article 227-Powers of the High Court-Bon1bay Tenancy & Agricultural Lands (Vldarbha Region and Kutch Area). Act 1958-Sections 36. 38. 100(2). 132(3)-Recovery of possession.\n\nBerar Regulation of AKricultural Leases Act 1951-Section 9A--!1!fi11or lessor's avvlication for possession within 3 years after attaining 111ajority.\n\nRespondent No. 1 landlord after his father's death and during his :minority let out the agricultural land in dispute to the appellant tenant through his mother for one year.\n\nAfter the expiry of the lease period the tenant refused to deliver possess.ion of the field.\n\nThe mother filed a suit for possession \\vhich v.-as dismissed. Section 9A of the Berar Regulation of Agricultural Leases Act 1951 (Madhya Pradesh Act No. XXIV of 1951) enables a minor lessor to get possession within 3 years of his attaining n1ajority.\n\nThe landlord, therefore, after attaining majority filed a petition for possession .. _ By order dated 8-8-1955, the authorities terminated the tenancy under s. 9A(2) of the Berar Act. It was directed that the landlord shall apply for possession of the suit land after 31-3-1956.\n\nPending the proceedings under s. 9A the landlord applied for recovery of mesne profits or, in the alternative, the lease an1ount.\n\nSubsequently, the landlord filed a '>Uit in the year 1960 against the tenant for recovery of mesne profits or for rent since the tenant continued to be on the land. When the suit was pending the landlord filed anothe-r application under s. 100(2) and s. 36 read with secti0n 38 of the Bombay 'fenancy and Agricultural Lands (Vidarbha Region & Kutch Area) Act 1958 (Bombay Act No. XLIX of 1958). The relief prayed was for a declaration t11at Kesheorao was -ilot a tenant. In the alternative, the landlord claimed for relief of resumrtion of the suit filed under sectio(l 36(2) and 38(1) of the Tenancy Act.\n\nThe Tenancy Court took the vie\\v that the tenancy was terminated by the order dated 8-8-1955 under section 9A of the Berar 1\\ct and that the possession of Kesheorao thereafter was not in the caoacity of a tenant and allowed the landlord's claim for possession under s. 132(3) of the Tenancy Act. The Tribunal reversed the judgment of the Appellate Authority and held that the tenant was a protected Jessee and entitled to enjoy that status under s. 6 of the Tenancy Act.\n\nThe Tribunal held that the landlord in his application under _sectioni 36 (2) will have to satisfy the conditions contained in s. 38(3) and (4) of the Tenancy Act. The Tribunal, therefore, dismissed the application of the landlord for possession. The Jligh Court in exercise of its powers Under Article 227 of the Constitution quashed the order of the llevenue Tribunal and restored the order passed by the Deputy Co1lector.\n\nThe High Court h~Jd that the landlord was entitled to get possession under s. 36 read withs. 38 and section 100(2) of the Tenancy .!\\ct and directed the handing over of the possession to the landlord.\n\nIn an appeal by Special Leave the tenant contended that (1) The landlord took various proceedings on the basis that the appeJlant \\Vas a tenant and, therefore. the landlord recognised or at any rate acquiesced in the tenancy of the appellant.\n\n<2) The order passed under s. 9A of the J1erar Act cannot be given effect to lh'lder s. 36 of the Tenancy Act.\n\n(3) In any event, the application for possession \\vas not filed within t\\VO yenrs from the date of the order for possession.\n\nDismissinJ:! the appeal bv special leave.\n\nHELD: (1) After the order dated 7-8-1955 \\vas passed under section 9A of the Beror Act the lease was terminated nnd the appellant ceased to be n\n\nKESHEORAO v. NARNARAYAN (Kailasam, J.) 15\n\ntenant.\n\nThe status Of the appellant as a tenant was also lost on the expiry .of the 7 years neriod on 31-3-1956 conferred on him under the Berar Act.\n\nIt is clear from various proceedings that the landlonl never recognised or -acquiesced in the tenancy of the appellant.\n\nThe claim was for n1esne profits -0r in the alternative for lease and cannot amount to acquiescing in the tenancy.\n\nUnder the Tenancy Act no right has been conferred on the appellant .after his status as protected tenant came to an end. 'fhe landlord in fact made an application for possession within the period of two years from the date the ·renancy Act cnme into force and the applicalion was, therefore, not barred 1:ly limitation. [16H, 17A-C, E-Fl\n\n(2) The Revenue Tribunal \\Vas in error in upsetting the order of the .Appellate Authority to the effect that after the order under s. 9A of the Berar Act was passed the possession of the appellant wa5 not in the capacity of :a tenant.\n\nThe High Court \\Vas justified in interfering \\Vith the order of the Revenue Tribunal. [17G-H]\n\nCIVIL APPELLATE JURISDICTION '. Civil Appeal No. 2031 of c 1968.\n\n(Appeal by special leave from the Judgment and Decree dated 1.2.1968 of the Bombay High Court (Nagpur Bench) in Special Civil Appeal No. 387 of 1966).\n\nM. W. Phadke, V. M. Phadke and A. G. Ratnaparkhi, for the appellant.\n\nSharad Manohar, Suresh Sethi and B. P. Maheshwari, for respondents.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.\n\nThis appeal arise out of special leave granted by E this Court against the judgment and order of the High Court of Judicature Bombay at Nagpur. For convenience sake we will refer .to the appellant as the tenant and the respondent No. 1 as the landlord because the history of the litigation is 25 years old and the parties had resorted to various remedies before various Tribunals.\n\nThe dispute relates to \\Field Survey No. 6 area 15 acres 23 gunthas F in village Gangaon.\n\nJodhraj the father of Narnarayan, the landlord before us, died some time in J 942. Narnarayan who was then .a minor became the owner and his widowed mother Trivenibai leased the land on behalf of the minor to Kesheorao, the tenant before us, for one year. After the expiry of the lease on 31st January, 1952, the tenant refused to deliver possession of the field. The mother filed the suit, Snit No. 125-A of 1952 for possession.\n\nThe suit as G well as further proceedings by way of appeal I.and second appeal failed and the tenant was held to be protected lessee for a period of five years from 1951-52.\n\nAvailing himself of the benefit of .section 9-A of the Berar Reu lation of Agricultural Leases Act Madhya Pradesh Act 24/51 which •enabled the minor to' get possession within 3 years of his attaining H majority he filed a petition for 1t.\n\nBy an order dated. 8th {\\ugust, 1955 the Sub-Diviional Officer found that Narnarayan 1s entitled to 'terminate the lease of the tenant Kesheorao and ordered that lease of\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\nKesheorao is terminated under section 9A(2) of the Berar Regulation of Agricultural Leases Act and further ordered under that section that Narnarayan shall apply for possession of the suit filed after 31st March, 1956. This order admittedly became final.\n\nPending the proceedings under section 9-A the landlord applied for recovery of mesne profits or in the alternative for lease amount.\n\nThe landlord subsequently filed Civil Suit No. 3 of 1960 against the tenant for recovery of mesne profits or for rent.\n\nThe suit was necessitated because the tenant continued to be on the land. The claim was for mesne profits or for lease amount.\n\nWhen this case was pending the landlord filed another application under section 100(2) and section 36 read with section 33 of the Bombay Tenancy Act, 1953. (Vidharba Region and Kutch area).\n\nThe relief prayed for was for a declaration that Kesheorao was not a tenant.\n\nIn the alternative the landlord claimed for relief of resumption of the suit filed under sections 36(2) and 38(1) 0£ the Bombay Tenancy Act.\n\nThe tenancy suits and the landlord's application were also prolonged and ultimately the appellate authority took the view that the tenancy was terminated by order dated !8th August, J 955 under section 9-A of the Berar Regulation of Agricultural Leases Act and that his possession thereafter was not in the capacity of a tenant and therefore set aside the order dated 30th September, 1963 and allowed the • landlord's claim for possession nnder section 132(3) of the Bombay Tenancy and Agricultural Lands Act, 1958. The tenant took up the matter to the Revenue Tribunal, Nagpur and the Revenue Tribunal set aside the order of the Appellate authority holding that the tenant was protected lessee and entitled to enjoy that status under section 6 of the Tenancy Act.\n\nHolding that the landlord in his p'(jtion under section 36(2) will have to satisfy the condition contained in section 38(3) and ( 4) of the Tenancy Act the Revenue ·.Tribunal decided that the landlord was not entitled to that relief.\n\nAggrieved by the order of the Revenue Tribunal the landlord filed the writ petition out of which this appeal arises before the Nagpur High Court under Article 227 of thei Constitution praying that the order of the Revenue Tribunal may be quashed and the order passed by the Special Deputy Collector may be restored.\n\nThe High Court allowed the writ petition setting aside the order of the Revenue Tribunal.\n\nThe High Court held. that the petitioner was entitled to get possession under section 36 read with section 38 and section 100(2) of the Bombay Tenancy Act and directed that the possession will be, given to the landlord after the crops of the year 1967-68 are removed.\n\nIt is unnecessary for the purposes of this appeal to go into the various proceedings between the landlord and the tenant.\n\nFor the purpose of decisi'on of this appeal it is sufficient to state that the landlord who was a minor filed a petition under section 9-A of the Berar Regulation of Agricultural Leases Act and obtained ail order from the Sub-Divisional Officer on 8th August, 1955 terminating the H lease of the tenant and directing that the landlord shall flpolv for possession of the field on 31st March, 1956.\n\nAfter 7th August. 1955 when the lease was terminated the tenant ceased to be a tenant.\n\nKESHEORAO v. NARNARAY/\\N (Kailasam,. ! .. ) 17\n\nEqually the status of the tenant was lost by Kesheorao when the protected tenancy came to an end with the expiry of the 7th years' peri0d conferred on him under the Berar Act.\n\nThe result was that the tenancy rights of Kesheorao were put an end to by the order dated 8th August, 1955 and whatever rights he , might have had under the Berar Act came to an end on 31st March, 1956.\n\nThe only ground on which the rights of a tenant are claimed is that after 31st March, 1956 and after 31st March, 1958 though his tenancy rights expired he continued to be a tenant because he was in possession and various proceedings were taken by the landlord on the basis that he was a tenant.\n\nThis plea cannot be accepted. It is seen from the various proceedings that the landlord never recognised or acquiesced in the tenancy of Kesheorao.\n\nThe landlord claimed for mesne profits or alternatively for lease amouut. The claim was not based on the landlord acquiescing in the tenancy.\n\nWe have been taken through the relevant provision of the Bombay Tenancy Act but there is no provis:\\)n by which any right as a tenant is conferred on Kesheorao after his status as protected tenant expired.\n\nIn this view the tenant ceased to have any right after 31st March, 1958, up to which tiine he could continue due to an amendment in the Act and, if he had managed to continue ;•n possession it was in spite of the landlord.\n\nThe objection that is taken ]Jy the learned counsel for the tenant is that the order which is made on 8th )August, 1955 under section 9-A cannot be given ffect to except under the provisions of section 36 of the Bombay Tenancy Act.\n\nIt was also submitted' that in any event the application had not been filed with;'rl. two years from the date of the order for possession.\n\nIt was brought to our notice that the landlord did make an application on 1 lth January, 1960 for possession within two years from the date of the Bombay Act coming into force and as such it is not barred by limitation. The applicab; iity or otherwise of section 132(2) and (3) was vehemently argued, but, in the view we have taken, it is unnecessary to go into that question.\n\nWe find that the tenant ceased to have _any right after 3 lst March, 1958 and did not acquire any rights subsequentfy by the landlord acquiescing in the tenancy. While the tenant had no right the landlord had obtained an order under section 9-A terminating the lease of the tenant and directing the landlord to apply for possession of the field on 31st March, 1956. The landlord had in fact applied for possession after we are also informed that the landlord obtained possession as early as 18th February, 1968. In the circumstances we do not feel called upon to interfere with the decision of the High Court holding that the landlord is entitled to get possession.\n\nThe Revenue Tribunal was in error in upsetting the mder of the appellate authority that the tenancy was terminated by the Sub-Divisional Officer on 8th August, 1955 under section 9-A of the leases Act and that his possession thereafter was not in the capacity of a tenant.\n\nThe High Court was therefore justified in interfering with the order of the Revenue Tribunal.\n\nWe see no ground for ;•nterfering with the conclusion arrived at by the Hih Court and dismiss this appeal. In tlie circumstances the parties will bear their own costs.\n\nP.H.P.\n\nAppeal dismissed:", "total_entities": 85, "entities": [{"text": "KESHEORAO", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "KESHEORAO", "offset_not_found": false}}, {"text": "NARNARA YAN & ANOTHER", "label": "RESPONDENT", "start_char": 11, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "NARNARAYAN & ANOTHER", "offset_not_found": false}}, {"text": "February 17, 1977", "label": "DATE", "start_char": 34, "end_char": 51, "source": "ner", "metadata": {"in_sentence": "KESHEORAO\n\nNARNARA YAN & ANOTHER\n\nFebruary 17, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 54, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 71, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 109, "end_char": 130, "source": "regex", "metadata": {}}, {"text": "Article 227", "label": "PROVISION", "start_char": 131, "end_char": 142, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sections 36", "label": "PROVISION", "start_char": 248, "end_char": 259, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Berar Regulation of AKricultural Leases Act 1951", "label": "STATUTE", "start_char": 305, "end_char": 353, "source": "regex", "metadata": {}}, {"text": "Section 9A", "label": "PROVISION", "start_char": 354, "end_char": 364, "source": "regex", "metadata": {"linked_statute_text": "Berar Regulation of AKricultural Leases Act 1951", "statute": "Berar Regulation of AKricultural Leases Act 1951"}}, {"text": "Section 9A", "label": "PROVISION", "start_char": 788, "end_char": 798, "source": "regex", "metadata": {"linked_statute_text": "Berar Regulation of AKricultural Leases Act 1951", "statute": "Berar Regulation of AKricultural Leases Act 1951"}}, {"text": "Berar Regulation of Agricultural Leases Act 1951", "label": "STATUTE", "start_char": 806, "end_char": 854, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh Act", "label": "STATUTE", "start_char": 856, "end_char": 874, "source": "regex", "metadata": {}}, {"text": "8-8-1955", "label": "DATE", "start_char": 1080, "end_char": 1088, "source": "ner", "metadata": {"in_sentence": "The landlord, therefore, after attaining majority filed a petition for possession .. _ By order dated 8-8-1955, the authorities terminated the tenancy under s. 9A(2) of the Berar Act."}}, {"text": "s. 9A(2)", "label": "PROVISION", "start_char": 1135, "end_char": 1143, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Act", "statute": "Madhya Pradesh Act"}}, {"text": "31-3-1956", "label": "DATE", "start_char": 1246, "end_char": 1255, "source": "ner", "metadata": {"in_sentence": "It was directed that the landlord shall apply for possession of the suit land after 31-3-1956."}}, {"text": "s. 9A", "label": "PROVISION", "start_char": 1288, "end_char": 1293, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Act", "statute": "Madhya Pradesh Act"}}, {"text": "s. 100(2)", "label": "PROVISION", "start_char": 1626, "end_char": 1635, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Act", "statute": "Madhya Pradesh Act"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 1640, "end_char": 1645, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Act", "statute": "Madhya Pradesh Act"}}, {"text": "section 9A", "label": "PROVISION", "start_char": 2095, "end_char": 2105, "source": "regex", "metadata": {"statute": null}}, {"text": "Kesheorao", "label": "PETITIONER", "start_char": 2151, "end_char": 2160, "source": "ner", "metadata": {"in_sentence": "The Tenancy Court took the vie\\v that the tenancy was terminated by the order dated 8-8-1955 under section 9A of the Berar 1\\ct and that the possession of Kesheorao thereafter was not in the caoacity of a tenant and allowed the landlord's claim for possession under s. 132(3) of the Tenancy Act.", "canonical_name": "KESHEORAO"}}, {"text": "s. 132(3)", "label": "PROVISION", "start_char": 2262, "end_char": 2271, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2442, "end_char": 2446, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38(3)", "label": "PROVISION", "start_char": 2595, "end_char": 2603, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 227", "label": "PROVISION", "start_char": 2763, "end_char": 2774, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 2969, "end_char": 2974, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100(2)", "label": "PROVISION", "start_char": 2994, "end_char": 3008, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9A", "label": "PROVISION", "start_char": 3367, "end_char": 3372, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 3425, "end_char": 3430, "source": "regex", "metadata": {"statute": null}}, {"text": "7-8-1955", "label": "DATE", "start_char": 3653, "end_char": 3661, "source": "ner", "metadata": {"in_sentence": "HELD: (1) After the order dated 7-8-1955 \\vas passed under section 9A of the Beror Act the lease was terminated nnd the appellant ceased to be n\n\nKESHEORAO v. NARNARAYAN (Kailasam, J.) 15\n\ntenant."}}, {"text": "section 9A", "label": "PROVISION", "start_char": 3680, "end_char": 3690, "source": "regex", "metadata": {"statute": null}}, {"text": "Kailasam", "label": "JUDGE", "start_char": 3792, "end_char": 3800, "source": "ner", "metadata": {"in_sentence": "HELD: (1) After the order dated 7-8-1955 \\vas passed under section 9A of the Beror Act the lease was terminated nnd the appellant ceased to be n\n\nKESHEORAO v. NARNARAYAN (Kailasam, J.) 15\n\ntenant.", "canonical_name": "Kailasam"}}, {"text": "s. 9A", "label": "PROVISION", "start_char": 4669, "end_char": 4674, "source": "regex", "metadata": {"statute": null}}, {"text": "M. W. Phadke", "label": "LAWYER", "start_char": 5087, "end_char": 5099, "source": "ner", "metadata": {"in_sentence": "M. W. Phadke, V. M. Phadke and A. G. Ratnaparkhi, for the appellant."}}, {"text": "V. M. Phadke", "label": "LAWYER", "start_char": 5101, "end_char": 5113, "source": "ner", "metadata": {"in_sentence": "M. W. Phadke, V. M. Phadke and A. G. Ratnaparkhi, for the appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 5118, "end_char": 5135, "source": "ner", "metadata": {"in_sentence": "M. W. Phadke, V. M. Phadke and A. G. Ratnaparkhi, for the appellant."}}, {"text": "Sharad Manohar", "label": "LAWYER", "start_char": 5157, "end_char": 5171, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar, Suresh Sethi and B. P. Maheshwari, for respondents."}}, {"text": "Suresh Sethi", "label": "LAWYER", "start_char": 5173, "end_char": 5185, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar, Suresh Sethi and B. P. Maheshwari, for respondents."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 5190, "end_char": 5206, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar, Suresh Sethi and B. P. Maheshwari, for respondents."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 5270, "end_char": 5278, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.\n\nThis appeal arise out of special leave granted by E this Court against the judgment and order of the High Court of Judicature Bombay at Nagpur.", "canonical_name": "Kailasam"}}, {"text": "High Court of Judicature Bombay at Nagpur", "label": "COURT", "start_char": 5385, "end_char": 5426, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.\n\nThis appeal arise out of special leave granted by E this Court against the judgment and order of the High Court of Judicature Bombay at Nagpur."}}, {"text": "Gangaon", "label": "GPE", "start_char": 5747, "end_char": 5754, "source": "ner", "metadata": {"in_sentence": "6 area 15 acres 23 gunthas F in village Gangaon."}}, {"text": "Jodhraj", "label": "OTHER_PERSON", "start_char": 5757, "end_char": 5764, "source": "ner", "metadata": {"in_sentence": "Jodhraj the father of Narnarayan, the landlord before us, died some time in J 942."}}, {"text": "Narnarayan", "label": "OTHER_PERSON", "start_char": 5779, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "Jodhraj the father of Narnarayan, the landlord before us, died some time in J 942."}}, {"text": "Trivenibai", "label": "OTHER_PERSON", "start_char": 5913, "end_char": 5923, "source": "ner", "metadata": {"in_sentence": "Narnarayan who was then .a minor became the owner and his widowed mother Trivenibai leased the land on behalf of the minor to Kesheorao, the tenant before us, for one year."}}, {"text": "31st January, 1952", "label": "DATE", "start_char": 6046, "end_char": 6064, "source": "ner", "metadata": {"in_sentence": "After the expiry of the lease on 31st January, 1952, the tenant refused to deliver possession of the field."}}, {"text": "section 9", "label": "PROVISION", "start_char": 6399, "end_char": 6408, "source": "regex", "metadata": {"statute": null}}, {"text": "8th {\\ugust, 1955", "label": "DATE", "start_char": 6622, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "8th {\\ugust, 1955 the Sub-Diviional Officer found that Narnarayan 1s entitled to 'terminate the lease of the tenant Kesheorao and ordered that lease of\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\nKesheorao is terminated under section 9A(2) of the Berar Regulation of Agricultural Leases Act and further ordered under that section that Narnarayan shall apply for possession of the suit filed after 31st March, 1956."}}, {"text": "section 9A(2)", "label": "PROVISION", "start_char": 6845, "end_char": 6858, "source": "regex", "metadata": {"statute": null}}, {"text": "31st March, 1956", "label": "DATE", "start_char": 7016, "end_char": 7032, "source": "ner", "metadata": {"in_sentence": "8th {\\ugust, 1955 the Sub-Diviional Officer found that Narnarayan 1s entitled to 'terminate the lease of the tenant Kesheorao and ordered that lease of\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\nKesheorao is terminated under section 9A(2) of the Berar Regulation of Agricultural Leases Act and further ordered under that section that Narnarayan shall apply for possession of the suit filed after 31st March, 1956."}}, {"text": "section 9", "label": "PROVISION", "start_char": 7101, "end_char": 7110, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100(2)", "label": "PROVISION", "start_char": 7525, "end_char": 7539, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 7544, "end_char": 7554, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 7565, "end_char": 7575, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Tenancy Act, 1953", "label": "STATUTE", "start_char": 7583, "end_char": 7607, "source": "regex", "metadata": {}}, {"text": "Vidharba Region", "label": "GPE", "start_char": 7610, "end_char": 7625, "source": "ner", "metadata": {"in_sentence": "Vidharba Region and Kutch area)."}}, {"text": "sections 36(2) and 38(1)", "label": "PROVISION", "start_char": 7811, "end_char": 7835, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Act, 1953", "statute": "the Bombay Tenancy Act, 1953"}}, {"text": "section 9", "label": "PROVISION", "start_char": 8058, "end_char": 8067, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Act, 1953", "statute": "the Bombay Tenancy Act, 1953"}}, {"text": "30th September, 1963", "label": "DATE", "start_char": 8232, "end_char": 8252, "source": "ner", "metadata": {"in_sentence": "8th August, J 955 under section 9-A of the Berar Regulation of Agricultural Leases Act and that his possession thereafter was not in the capacity of a tenant and therefore set aside the order dated 30th September, 1963 and allowed the • landlord's claim for possession nnder section 132(3) of the Bombay Tenancy and Agricultural Lands Act, 1958."}}, {"text": "section 132(3)", "label": "PROVISION", "start_char": 8309, "end_char": 8323, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy Act, 1953", "statute": "the Bombay Tenancy Act, 1953"}}, {"text": "Bombay Tenancy and Agricultural Lands Act, 1958", "label": "STATUTE", "start_char": 8331, "end_char": 8378, "source": "regex", "metadata": {}}, {"text": "Revenue Tribunal, Nagpur", "label": "COURT", "start_char": 8417, "end_char": 8441, "source": "ner", "metadata": {"in_sentence": "The tenant took up the matter to the Revenue Tribunal, Nagpur and the Revenue Tribunal set aside the order of the Appellate authority holding that the tenant was protected lessee and entitled to enjoy that status under section 6 of the Tenancy Act."}}, {"text": "section 6", "label": "PROVISION", "start_char": 8599, "end_char": 8608, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "section 36(2)", "label": "PROVISION", "start_char": 8678, "end_char": 8691, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "section 38(3)", "label": "PROVISION", "start_char": 8740, "end_char": 8753, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 8992, "end_char": 9009, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the order of the Revenue Tribunal the landlord filed the writ petition out of which this appeal arises before the Nagpur High Court under Article 227 of thei Constitution praying that the order of the Revenue Tribunal may be quashed and the order passed by the Special Deputy Collector may be restored."}}, {"text": "Article 227", "label": "PROVISION", "start_char": 9016, "end_char": 9027, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "section 36", "label": "PROVISION", "start_char": 9351, "end_char": 9361, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "section 38", "label": "PROVISION", "start_char": 9372, "end_char": 9382, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act, 1958", "statute": "the Bombay Tenancy and Agricultural Lands Act, 1958"}}, {"text": "section 100(2)", "label": "PROVISION", "start_char": 9387, "end_char": 9401, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 9792, "end_char": 9801, "source": "regex", "metadata": {"statute": null}}, {"text": "7th August. 1955", "label": "DATE", "start_char": 10069, "end_char": 10085, "source": "ner", "metadata": {"in_sentence": "After 7th August."}}, {"text": "31st March, 1958", "label": "DATE", "start_char": 10681, "end_char": 10697, "source": "ner", "metadata": {"in_sentence": "The only ground on which the rights of a tenant are claimed is that after 31st March, 1956 and after 31st March, 1958 though his tenancy rights expired he continued to be a tenant because he was in possession and various proceedings were taken by the landlord on the basis that he was a tenant."}}, {"text": "have been taken through the relevant provision of the Bombay Tenancy Act", "label": "STATUTE", "start_char": 11171, "end_char": 11243, "source": "regex", "metadata": {}}, {"text": "8th )August, 1955", "label": "DATE", "start_char": 11701, "end_char": 11718, "source": "ner", "metadata": {"in_sentence": "The objection that is taken ]Jy the learned counsel for the tenant is that the order which is made on 8th )August, 1955 under section 9-A cannot be given ffect to except under the provisions of section 36 of the Bombay Tenancy Act."}}, {"text": "section 9", "label": "PROVISION", "start_char": 11725, "end_char": 11734, "source": "regex", "metadata": {"linked_statute_text": "We have been taken through the relevant provision of the Bombay Tenancy Act", "statute": "We have been taken through the relevant provision of the Bombay Tenancy Act"}}, {"text": "section 36", "label": "PROVISION", "start_char": 11793, "end_char": 11803, "source": "regex", "metadata": {"linked_statute_text": "We have been taken through the relevant provision of the Bombay Tenancy Act", "statute": "We have been taken through the relevant provision of the Bombay Tenancy Act"}}, {"text": "lth January, 1960", "label": "DATE", "start_char": 12048, "end_char": 12065, "source": "ner", "metadata": {"in_sentence": "It was brought to our notice that the landlord did make an application on 1 lth January, 1960 for possession within two years from the date of the Bombay Act coming into force and as such it is not barred by limitation."}}, {"text": "section 132(2)", "label": "PROVISION", "start_char": 12227, "end_char": 12241, "source": "regex", "metadata": {"linked_statute_text": "We have been taken through the relevant provision of the Bombay Tenancy Act", "statute": "We have been taken through the relevant provision of the Bombay Tenancy Act"}}, {"text": "3 lst March, 1958", "label": "DATE", "start_char": 12406, "end_char": 12423, "source": "ner", "metadata": {"in_sentence": "We find that the tenant ceased to have _any right after 3 lst March, 1958 and did not acquire any rights subsequentfy by the landlord acquiescing in the tenancy."}}, {"text": "section 9", "label": "PROVISION", "start_char": 12583, "end_char": 12592, "source": "regex", "metadata": {"statute": null}}, {"text": "18th February, 1968", "label": "DATE", "start_char": 12841, "end_char": 12860, "source": "ner", "metadata": {"in_sentence": "The landlord had in fact applied for possession after we are also informed that the landlord obtained possession as early as 18th February, 1968."}}, {"text": "8th August, 1955", "label": "DATE", "start_char": 13165, "end_char": 13181, "source": "ner", "metadata": {"in_sentence": "The Revenue Tribunal was in error in upsetting the mder of the appellate authority that the tenancy was terminated by the Sub-Divisional Officer on 8th August, 1955 under section 9-A of the leases Act and that his possession thereafter was not in the capacity of a tenant."}}, {"text": "section 9", "label": "PROVISION", "start_char": 13188, "end_char": 13197, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_153_164_EN", "year": 1977, "text": "ROSHAN-DI-HATTI v.\n\nCOMMISSIONER OF INCOME TAX\n\nMarch 8, 1977\n\nI 5 3\n\n[P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.J\n\nIncome Tax Act 1922-Sec. 34(1) (a)-Escaped income-Ueassess111ent- Burden of '{)oaf about source of inco1ne-Finding of facts of the Tribunal can be interfered under what circumstances-Conclusion without any 1naterials- No person act1nf; judicially and properly instructed as to the relevant law\\ would co1ne to det:?nnilrntivn-lncon1e rax Appellate Tribunal-Whether Tribunal can ask questions to assessee informally-Whether part of record-lncon1e Tax Apvel!ate Tribunal Rules 29, 30 and 31.\n\nThe assessee,. a llindu Undivided Family, was carrying on business in gold nnd jewellery ni Lahore till June 1947.\n\nIn view of the impending partition of Jndia, Roshan La] d, ecided to move out of Lahore and accordingly transferred sums of Rs. 12,094/-, Rs. 13,000/- and Rs. 6,000/- from Lahore Banks to New Delhi Banks.\n\nHe left Lahore and proceeded to Mussoorie in June, 1947.\n\nOn his way, he stopped at Amritsar for a few days and opened an account with the Imperial Bank of India with a view to obtaining a locker in the Safe Deposit Vault but a locker was not available and hence he denosited a trunk \\Vhich he had brought from Lahore containing gold ornaments, jewellery and cash with the Imperial Bank of India. The assesSee came to Delhi in October, l 947. and rented <! house.\n\nIn February, 1948, he succeeded in securing business premises \"and started business on 30.3.1948.\n\nThe first entry in the books of account on 30.3.1948 showed gold ornaments of Rs. 1,19.320/-, Gold Rawa Rs. 1,69,020/- Stones worth Rs. 4,000/- Bank balance \"\"'ith the Imperial Bank of India, Delhi Rs. 35,053/- Bank Balance with Hindustan Commercial Bank, Delhi Rs. 221/- and Cash of Rs. 2,800/.\n\nThe assessee thus brought in an aggregate capital of Rs. 3,33,414/- in the business on 30.3.1948.\n\nJn 1957, it came to the notice of the Income Tax Officer that the assessee had made considerable income in his gold and jewellery business but had failed to pay any tax on such income and hence issued a notice to the assessec under s. 34(1)(a) of the Indian Income Tax Act, 1922, for bringing the income of the a:; sessee for the assessment year 1948-49 to tax.\n\nThe assessee filed his return.\n\nIn the course of the assessment proceedings the I.T.O. ca1led upon the assessee to explain the nature and source of the capital of Rs. 3.33,414/-.\n\nThe assessee contended that he brought the gold Rawa, ornarnenfs and cash reoresenring the capital when he migrated from Lahore and they were kept in -a sealed trunk with the bank at Amritsar and thereafter brought over ro Delhi and deposited in the Safe De_posit Vault of Hindustan Commercial Barik nt Ddhi.\n\nWhen the business of the assessee was commenced, he surrendered the locker and brought the entire gold, jewellery and cash into the business.\n\nThe assessee observed that till he started his business in March 1948, neither the :-i.ssessee nor Roshan Lal had any other business or means of income fr0n1 \\vhic; h the amount of Rs. 3,33,414/- could have been earned.\n\nThe assessee examined some witnesses.\n\nThe ITO also examined the brothers of Roshan Lal who stated that the father of Roshan Lal was a man of ordinary means who \\Vas almost reduced to penury by about 1940 and that he had given a sum of Rs. 2000/- to his son Roshan Lal for starting gold and jewellery business in 1935 and he had also subsequently lent some monies to Roshan Lal on nominal interest.\n\nThe Income Tax Officer rejected the explanation offered by the assessee and came to the conclusion that it was not possible to believe that the assessee had been able to accumulate capital to the extent of Rs. 3.33,41f/- out of income from the business carried on.\n\nThe Income Tax Officer gave credit for a sum of Rs. 20,000 /- and treated the balance of Rs.\n\nA 3,30,41-4/- as income of the assessee from undisclosed source. On appeal, the Appellate Assistant Commissioner allowed a further sum of Rs. 80,000/- on the fnl!o\\v1ng grounds :\n\n(1) That the assessee transferred a sum of Rs. 12.004/-, Rs. 13.000/- and Rs. 6.000/- from Banks as Lahore to the Bank at New Delhi.\n\nThis shows that the assessee was not a man of very small means while he was at Lahore.\n\n(2) H.;- was having accounts in 4 different Banks and a man of\n\nYcry modest means would not have normally so many Bank accounts.\n\n(3) While at Lahore. Roshan Lal had taken Life Insurance Policies\n\n'..vorth Rs. 22,000/-.\n\nA number of letters and receipts regarding business transactions in Lahore Indicated that the Lahore business was not as small as the Income Tax Officer had taken it to be.\n\nThe assessee stopped at Amritsar and opened an account and took Safe Deposit Vault where he deposited a sealed box. It is reasonable to presume that there must have been something quite valuable in the box.\n\nA further appeal filed by the assessee. to the Tribunal failed.\n\nThe Trihunal, when the appeal came to be heard, put a. question to Roshan Lal as to how he had brought gold and jewellery from Lahore and enquired about the weight of the box. 'The Tribunal after bearing the arguments of the parties rejected the appeal. The main arguments which weighed with the Tribunal were :\n\n(1) that the weight of the box was too less:\n\n(2) that the assessee did not disclose his assets under the scheme of the Government of India published in the Press Note in January 1952, requiring a11 evacuees to declare the amounts of money brought by them from Pakistan.\n\n(3) that the assessee did not file any income tax.returns in Lahore.\n\nE The H.igh Court confirmed the finding of the Tribunal in the reference.\n\nAllowing the appeal,\n\nHELD: (1) The law is well settled that the onus of proving the source of a sum of money found to have been received by an assessee is on him.\n\n[160 El\n\nA GovindarajUlu Mudaliar v. Commissioner of lnco111e Tax (1958) 34 ITR 807 and Cou111zissioner of lncon1e Tax. U.P. v. Devi Prasad Vishwanath Prasad 72 !TR 194 followed. ·\n\n(2) The concluion of the Tribunal on a finding of fact can be assailed only i.f it is shown that the Tribunal had acted without any material or upon a view of the facts which could not reasonably be entertained or the fa:ts found were such that no person acting judicially and properly instructed as to the relevant law would have come to that determination. (161 C-D].\n\nMehta Parikh &: Co. v. Commissioner of Income-Tax Bombay 30\n\nITR 18 L followed.\n\n(3) The Tribunal was right in commenting that primary evidence with regard to the extent of the Lahore business of the assessee :was not forthcoming but it niust be remembered that the assessee was being called upon to nrove the extent of his business in a territory from which the member of the Hindu undivided family had to flee for their lives and from where, it was totally impossib'e to produce any Primary evidence. The finding of the AAC that the assessee was doing fairly well in the business in Lahore was not disturbed bv the Ttibunal.\n\nThe AAC found that it was reasonable to presume to at there was something quite valuable in the box and this finding was also not dissented by the Tribunal.\n\nThere was no inaterial to show that the orna-\n\nROSHAN-Dl-HATTI v. COMMR. OF I.T. (Bhagwati, J.) 155\n\nn1ents, j>!we11ery and cash brought by the assessee and kept in the sealed trunk \\vere of the value of only Rs. 1 lac and not more.\n\nThe circumstances that the assessee had not filed any Income Tax return could be of no avail to the Revenue because admittedly the assessee had brought substantial amount from Lahore.\n\n[16J D-G]\n\n(4) The Tribunal was wrong in relying upon certain answers given by Roshan Lal, about the wei.u; ht of the sealed box when he was questioned by the Tribunal at th~'. hearing of the appeal.\n\nIt must be pointed out straightway that the answer given by Roshan Lal could not be relied on by the Tribunal because there is a procedure prescribed in rules 29. 30 and 31 of the Income Tax Appellate Tribunal Rules for taking additional evidence before the Tribunal and if the members of the Tribunal wanted to examine Roshan Lal on any apects of the case. they should have followed this procedure.\n\nThe answers given by Roshan Lal disregarding the perscribed procedure could not forn1 part of the record and the Tribunal was not entitled to rely upon the same. [162 H, 163 A-Cl\n\n(5) The Tribunal erred in relying on the Press Note because admittedly the assessee had brought a sum of Rs. 1 lac to .India and even that was not declared to the Government of India. [163 E-Fl\n\n(6) There was no material on the basis of which the Tribunal could come to the conc1us1on 1hat the ornaments. jewellery and cash were not worth than Rs. 1 lac. It was not proved that Roshan Lal or the assessee had nny business or other mearrs of income in India until 30.3.1948.\n\nThe 2enuineness of the entry of l\\.farch 1948 was also not challenged.\n\nIt is .utterly improbably amounting almost to impossibility that the assessee could have earned such a large amount of Rs. 2,33,414/- as profit within a few months in the disturbed conditions which then prevailed in India. [164 B-El\n\n(7) The Tribunal acted without any nlaterial and in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such finding.\n\n[164 F-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 284 of 1972.\n\n(From the Judgment and Order dated 3-5-1971 of the Delhi High Court in LT. Case No. 6-D of 1964)\n\nA. K. Sen, V. S. Desai and Bishamber Lal, for the appellant.\n\nG. C. Sharma and S. P. Nayar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This is an appeal by special leave directed against\n\nthe Judgment of the Delhi High Court answering in favour of the Revenue a question which was directed to be referred by the Tnbunal under section 66 (2) of the Indian Income Tax Act, 1922. The con~ troversy between the parties arises out of an assessment made on the G assessee as a Hindu Undivided Family for the assessment year 1948-49, the corresponding accounting year being the financial year 1947-48.\n\nThe assessee was at the material time a Hindu Undivided Family with one Roshan Lail as its manager and karta.\n\nTill June 1947 the assessee was carrying on business in old an~ jewel!ry at Chowk Surjan Singh in Lahore. In view of the 1mpendmg partition of India Roshan Lal decided to move out of Lahore and accordingly he transferred a um H of Rs. 12,094/- from the account of the assessee with the Lahore Branch of the P11njab National Bank Ltd. to the New Delhi Branch of that bank in June 1947. He also transferred from the Lahore\n\nBranch of the Punjab National Bank Ltd. to the branch of that bank at New Delhi two sums of Rs. 13,000/- and Rs. 6,000/-, the former in his own name and the latter in Ille name of his wife and obtained fixed deposit receipts for these two amounts from the New Delhi Branch of the Bank in July 1947.\n\nHe left Lahore in June 1947 and proceeded to Mussoorie but on his way he stopped at Amritsar for a few days.\n\nHe opened an account with the Amritsar Branch of the Imperial Bank of India by depositing a sum of Rs. 300/- with a view to obtaining a locker in the safe deposit vault where he could depo, it\n\nfor sale custody a trunk which he had brought with him from Lahore co11taining gold ornaments, jewellery and cash. It seems that a locker was not available and hence he deposited the trunk in a sealed condition with the Amritsar Branch of the Imperial Bank of India on 25th June, 194 7.\n\nThe sealed trunk, according to the assessee, contained gold ornaments of the value of Rs. 1,19,320/-, gold rawa of the value of Rs. 1,69,020/- and stones of the value of Rs. 4,000/-. Roshan Lal then went to Mussoorie via Haridwar and stayed at Mussoorie until aboul October 1947. The case of the assessee was that during this period Roshan Lal did not carry on any business nor did he have any other means of income. In October 194 7 Roshan Lal came over to Delhi and rented a house in Kinari Bazar with a view to settling down in Delhi. He started looking for suitable premises for commencing business and it was only in February 1948 that lie succeeded in securing suitable premises at Dariba Kalan in Delhi. He tfien started gold and jewellery business in these premises in the name and style of Roshan-Di-Hatti on 30th March, 1948.\n\nThe business was joint family business of the assessee and the first entry made in the books of account of the assessee was dated 30th March, 1948 and it was as follows :\n\nGold Ornaments Rs. 1,19,320/- Gold Rawa Rs. 1,69,020/- Stones Rs. 4,000/- Bank balance with the Imperial Bank of India, Delhi Rs. 35,053/- Bank balance with Hindustan Commercial Bank, Delhi Rs. 221/- Cash Rs. 2,800/-.\n\nThe asseesee thus brought in an aggregate capital of' Rs. 3,33,414/- in the business on 30th March, 1948.\n\nIt appears that the assessee prospered in this gold and jewellery business of Roshan-Di-Hatti but it did not file any return of income nor paid any income tax.\n\nIt came to the notice of the Income Tax Officer some time in the beginning of 19 57 that the assessee had made considerable income in its gold and jewellery business bnt had failed to pay any tax on such income and hence the Income Tax Officer issued a notice to the assessee under section 34(1)(a) of the Indian Income Tax Act, 1922 for bringing the income of the assessee for the assessment year 1948-49 to tax.\n\nThe asscssee filed its retnrn of income and in the course of the assessment proceedings, the Income Tax Officer, called upon the assessee to explain the nature and source of the capital of Rs. 3,33,414/- brought by it into the business on 30th March; 1948.\n\nThe assessee pointed\n\nout that gold rawa, ornaments and, cash representing thi!l capital were A brought by Roshan Lal when he migrated from Lahore and they were kept in a sealed trnnk with t!he Amritsar Branch of the Imperial Bank of India and when Roshan Lal came over to Delhi in October 194 7, he deposited the same in a locker in the safe deposit vault of Hindustan Commercial Bank at Delhi and when the business of the assessee was commenced, he surrendered the locker and brought the entire gold, jewellery and cash into the business. It was emphasised by the B assessee as a supportive fact that after Roshan Lal migrated from Lahore in June 194 7 until the assessee started the business of Roshan- Di-Hatti on 30th March, 1948, neither the assessee nor Roshan Lal had any other business or means of income from which the assets of Rs. 3,33,414/- could have been earned.\n\nThis explanation was given in the course of various statements made by the assessee from time to time before the Income Tax Officer.\n\nThe assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948.\n\nThe Income Tax Officer also examined Prem Nath and Kishan Chand, D brothers of Roshan Lal.\n\nThe statement of Prem Nath was to the effect that their father w.as a man of ordinary means who was almost reduced to penury by about 1940 and that he had given a sum of Rs. 2000 /- to his son Rosh an Lal for starting gold and jewelery business in 1935 and he had also 'ubsequently lent some monies to Roshan Lal at nominal interest.\n\nPrem Nath deposed that for the purpose of the business of the assessee, Roshan Lal was occupying E a shop belonging to his father but he was not paying rent though demanded on the ground that he did not have sufficient income to pay the rent.\n\nIt was also stated by Prem Nath that before the partition of the country the standard of living of Roshan Lal and his family was no higher than that of Prem Nath who was getting a salary of Rs. 150/- per month.\n\nThe statement of Prem Nath was clearly directed towards showing that the assessee did not have any flourishing F business or large income prior to partition.\n\nThe Income Tax Officer, on the basis of this material before him, reiccted the explanation offered by the assessee and came to the conclusion that it was not possible to believe that the assessee had been able to accumulate capital to the extent of Rs. 3,33,414/- out of income from the business carried on by it in Lahore and since the nature and source of the capital of Rs. 3,33,414/- credited in the books of account of the business on G 30th March, 1948 was not satisfactorily explained, the Income Tax Officer, gave credit only for a sum of Rs. 20,0001and treated the balance of Rs. 3,13,414/- as income of the assessee from undisclosed sources.\n\nThe assessee appealed against this order of the Income Tax Officer and on appeal, the Appellate Assistant Commissioner took the view that, on the facts as disclosed by the material placed on record in the H proceedings, a much larger allowance should have been made in respect of the capital brought hv the assessee from Lahore and he allowed a further sum of Rs. 80,000/-. The reason given by the Appellate\n\nAssistant Commissioner for taking this view are a little material and they may be reproduced as follows :\n\n\"There is documentary evidence to show that assessee transferred an amount of Rs. 12,094/- from the Punjab National Bank account at Lahore to the same bank in New Delhi in June 1947. It is also seen that he :i; so transferred two amounts Rs. 13,000/- in his own name and Rs. 6,000/- in his wife's name from the Punjab National Bank, Lahore, to the same Bank at Minto Road, New Delhi and fixed deposit receipts were taken for this total sum of Rs. 19,000/- from the Delhi Bank in July 1947. All these monies including the realised fixed deposits later on went into the assessee's account with the State Bank of India which reveals a credit balance of Rs. 35,053/- as on 30-3-1948. This at least shows that the assessee was not a man of very small means while he wrus at Lahore.\n\nHe was having four accounts in different banks at Lahore.\n\nThe particulars, however, are not available and it is also stated that most of these accounts were very small; but even then a man of very modest means would not normally have so many bank accounts. Moreover, while at Lahore Shri Roshan Lal had taken life insurance Policies Rs. 22,000/-. A number of letters and receipts regarding business transactions in Lahore were also filed which indicate that the Lahore business was not as small as the Irtcome Tax Officer has taken it to be.\n\nThere are some papers which relate to deals worth Rs. 10,000/- or more at one time.\n\nThere are also several vouchers relating to advertisement charges paid at Lahore: All these things together with the fact that the assessee was in position to transfer a sum of Rs. 31,000 /- approx. through banks indicate that he was doing fairly well in the business at Lahore.\n\nHow he could have managed to evade tax at Lahore for all these years, is a mystery; but from the circumstances of the case it appears that tbe assessee had certainly assessable incomes while he was doing business there during the pre-partition period.\n\nThere is another factor which has also to be given its due weight.\n\nWhile leaving Lahore and coming over to India in June 194 7, the assessee stopped for few days at Amritsar.\n\nThere on the 25th June, 1947 he deposited a sea(ed box with the State Bank of India Amritsar Branch.\n\nThis box was withdrawn by him on the 20-10-47.\n\nThese facts are corroborated by the bank certificate.\n\nThe assessee claims that he had considerable amount of jewellery and gold etc. (part of his trading stock in Lahore) as well as crush, in this box that is why he did not take the risk of carrying it with him on his way to Mussoorie, but kept in deposit with the State Bank at Amritsar till snch time as he was able to settle down in India.\n\nThe contents of the sealed box are unknown to the bank and so it is not possible to ascertain what the box actually contained.\n\nBut it is reasonable to\n\nROSHAN-Dl-HATTI v. COMMR. OF I.T. (Bhagwati, J.) 159\n\npresume that there must have been something quite valu- A able in the box as otherwise the assessee would not have kept it iu the custody of a bank like State Bank of India.\n\nIt must also be noted that as early as June, 1947, the assessee hired a locker in the Hindustan Commercial Bank Ltd., New Delhi.\n\nIt is clear therefore, that when in June, 194 7, the assessee was leaving Lahore he must have had with him quite a substantial amount either in the form of B jewellery etc., or cash, as otherwise he would not have taken the precaution of either depositing the sealed .box with the Stak Bank of India at Amritsar or opening a locker in a New Delhi Bank.\n\nConsidering all the evidence discussed above, I am of the opinion that the Income Tax Officer's allowance of Rs. 20,000/- only as capital brought over f'rom Pakistan is too low. It is true that the capital disclosed in the books as on :I0-3-1948 is mostly unverifiable and even assuming that the. assessee wms doing reasonably well in his business at Lahore, there are hardly any reasons to believe that he could have accumulated so much capital and could have brought a'; l that capital safely into India; but the circumstances of the case do in my view justify a much larger allowance for old capital than has been allowed by the Income Tax Officer.\n\nIn my opinion, a reduction of the assessment by Rs. 80,000/- will meet the requirement of the cruse.\"\n\nThe Appellate Assistant Commissioner thus reduced the figure undisclosed income of the assessee to Rs. 2,33,414/-.\n\nBut this relief was not enough and the assessee preferred a further appeal to the Tribunal.\n\nWhen the appeal came to be heard by the Tribunal, Roshan Lal, who was present at the hearing, was asked by the Members of the Tribunai as to how he had brought gold and jewellery from Lahore and he stated that it was brought in train in a box of the size of 2t'x H'id' and he was.then asked what was the\n\nweight of the box, to which he replied stating that the weight of the F contents of the box was about eight seers.\n\nThe Tribunal then, after hearing the arguments of the parties, rejected the appeal.\n\nThe main arguments which weighed with the Tribnnal in negativing the appeal of the assessee were : first, if the weight of the contents of the box was only eight seers, the value of gold and jewellery in the box could not be more than Rs. 66,000/- at the then current rate of gold at Rs. 90/- per tola; secondly, the Government of India had issued a G Press l\\ote in January 1952 requiring all evacuees to declare the amounts of money brought by them from Pakistan and assuring them that in case they did so, no further enquiries would be made from them as to how they had earned the same and whether they had paid any tax on it and yet the assessee had not declared before the Revenue authorities until the commencement of the assessment proceedings in 1957 that it had brought the capital of Rs. 2,33,414/- from Pakistan; H thirdly, the assessee claimed to have a flourishing business in Lahore in the course of which it was supposed to have earned enough to enable it to save a capital of Rs. 3,33,414/- and yet it had not filed\n\nany income tax return nor was it ever assessed to income tax m Lahore and fourthly, the depositions of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devidas Mehra and Panna Lal were vague and based on hearsay and they had no evidentiary value in the absence of contemporaneous primary evidence.\n\nThe Tribunal, accordingly, held that the assessee could not have brought assets worth more than Rs. 1,00,000/- from Lahore and the estimate made by the Appellate Assistant Commissioner did not calI for any interference and in this view, the Tribunal confirmed the assessment of the balance of\n\ns. 2,33,414/- as the undisclosed income of the assessee for the assessment year 1948-49.\n\nThe assessee applied to the Tribunal for referring to the High Court the question of law arising out of its order but the Tribunal declined to make a reference on the ground that in its opinion no question of law arose out of its order.\n\nThis led to the making of an application to the High Court under section 66(2), but the High Court also took the same view and rejected the application.\n\nThe assessee thereupon preferred an appeal to this Court by special ]eave and in the appeal, an order was made by this Court referring the following question for the opinion of the High Court :\n\nWhether there was material for coming to the conclusion that Rs. 2,33,414/-, out of the capital of Rs. 3,33,414/- credited in the books of account of the assessee on 31st March, 1948, represented income from undisclosed source ?\n\nPursuant to this order the Tribunal stated a case for the opinion of the High Court and the High Court answered the question referred to it in favour of the Revenue by holding that there was material on the basis of which the Tribunal could come to the conclusion that Rs. 2,33,414/- represented the undisclosed income of the assessee.\n\nHence the present appeal by the assessee with special leave obtained from this Court.\n\nNow, the law is welJ settled that the onus of proving the source of a sum of money found to have been received by an assessee is on him.\n\nIf he di:sputes the liability for tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Act.\n\nIn the absence of such proof, the Revenue is entitled to treat it as taxable income.\n\nThis was laid down as far back as 1958 when this Court pointed out in A. Govindarajulu Mudaliar v.\n\nCommissioner of Income-tax(') that \"there is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain an1ount of cash received during the accounting year, the Income Tax Officer is entitled to draw the inference that the receipts are of an assessable nature''.\n\nTo put it differently, where the nature and source of a receipt, whether it be of money or of other property, cannot be satisfactorily explained by the assessee, it is open to the Revenue to hold that it is the income of the assessee and no further burden lies on the Revenue to show that that income is from any particular source.\n\nVide Commissioner of Income Tax, U.P. v. Devi Prasad Vishwanath Prasad(\"). Herc,\n\n(I) (1958) 34 l.T.R. 807.\n\n(2) 72 I.T.R. 194.\n\nin the present case, the assessee introduces in the books of account of its business on 30th March, 1948, capital of Rs. 3,33,414/- which consisted of gold rawa, gold ornaments, stones and cash.\n\nThe burden of accounting for the receipt of these assets was clearly on the assessee and if the assessee failed to prove satisfactorily the nature and sourc~ of these assets, the Revenue could legitimately hold that these assets represented the undisclosed income of the assessee.\n\nThe assessee offered the explanation that these assets had been brought by Roshan Lal when he migrated from Lahore in June 194 7 and they represented the entire savings of the assessee in Pakistan.\n\nThis explanation w.as disbelieved. by the Tribunal which took the view that, on the matenal on record, it was not possible to hold that the a.sessee must have brought more than Rs. 1,00,000/- from Lahore and hence the Tribunal added the balance of Rs. 2,33,414/- as undisclosed income of the assessee.\n\nThis conclusion reached by the Tribunal was clearly a finding of fact and hence it could be assailed only if it was shown that the Tribunal had acted without any material or upon a view of the facts which could not reasonably be entertained or the facts found were snch that no person acting judicially and properly instructed as to the relevant law would have come to that determination.\n\nVide Mehta Parikh & Co. v. Commissioner of Income-Tax, Bombay(').\n\n/ Let us consider what were the primary facts established by the material on record.\n\nThe assessee was admittedly carrying on the business of Roshan-Di-Hatti in Lahore from 1935 until June 1947 when Roshan Lal migrated from Lahore.\n\nIt is true that the assessee was not paying any Income tax in Lahore but, as pointed out by the Appellate Assistant Commi, ssioner in his order, a number of letters and receipts regarding business transactions in Lahore were filed by the assessee which showed that the business in Lahore was not smaU\n\nand there were documents and papers which referred to dealings involving Rs. 10,000/- or more at a time and there were also several vouchers produced by the asse, ssee relating to advertising charges paid at Lahore.\n\nThe business carried on by the assessee at Lahore was, therefore, a reasonably large business though its extent could not be verified by any rnliable material produced by the asscssee. The assessee undoubtdly filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devidas Mehra and Panna Lal, but, as commented upon by the Tribunal, these affidavits were vague and could not be regarded as having much evidentiarv value.\n\nStill they did go to show that the Lahore business of theassessee was a fairly large business.\n\nThe Tribunal was no doubt right in commenting that primary evidence with regard to the extent of the Lahore business of the assessee was not forthcoming, but it must be remembered that the assessee was being called upon to prove the extent of its business in a territory from which the members of the Hindu Undivided Family had to flee !or\n\nthir lives .and from where it '.\"as totally impossible to produce any pnmary evidence. Be that as it may, it was found as a fact by the Appellate Assistant Commissioner and this finding was not disturbed !'Y the Tribunal. that the assessee \"was doing fairly well in the business\n\nm Lahore\": Roshan Lal, in anticipation of the partition of the country which was soon to follow, decided to move out of Lahore in June 1947 at a time when massacre and holocaust had not yet started\n\nO)To ct-:-ICITIand he was in a position to remove his belongings. He migrated from Lahore with all his belongings and came over to Amritsar and he . brought with him a trunk which he wanted to keep in a locker in Safe Deposit Vault of the Imperial Bank of India.\n\nHe could not obtain a locker and hence he deposited the sealed trunk with the Amritsar Branch of the State Bank of India instead of carrying it with him to Mussoorie.\n\nThere is no documentary evidence to show as to what were the contents of the sealed trunk but, as pointed out by the Appellate Assistant Commissioner and not dissented by the Tribunal, \"it is reasonable to presume that there must have been something quite valuable in the box as otherwise the assessee would not have kept in the custody of a bank like the State Bank of India\".\n\nThere can be no doubt, as observed by the Appel':ate Assistant Commissioner, and not disputed by the Tribunal that the assessee \"must have had with him quite a substantial amount either in the form of jewellery etc. or cash, or otherwise he would not have taken the precaution of either depositing the sealed box with the State Bank of India, Amritsar or opening a locker in a New Delhi Bank\".\n\nThe clear finding of the Appellate Assistant Commissioner, affirmed by the Tribunal, therefore, was that Roshan Lal did bring ornaments, jewellery and cash with him when he migrated from Lahore in June 1947 and kept the sam~ in a sealed trunk with the Amritsar Branch of the State Bank of India.\n\nIf that be so, then on what material could it be said that the ornaments, jewell<:ry and cash brought by the assessee and kept in the sealed trunk were of the valne of only Rs. 1,00,000/- and no more.\n\nWhat were the materials on the basis of which the claim of the assessee that Roshan Lal had brought gold, ornaments and cash of the value ot Rs. 3,33,414/- could be rejected?\n\nThe only materials relied upon by the Tribunal was that the assessee had never filed any income-tax return nor ever paid any tax on the income of its business in Lahore and the presumption must, therefore, be that the assessee did not earn any assessable income before migration from Lahore.\n\nNow, it is true that where an assessee has not paid i•ncome tax, the presumption ordinarily must be that the assessee had no assessable income, but here the fact remains that the assessee transferred no less than an aggregate sum of Rs. 31,094/- from Lahore to New Delhi and also brought substantial amount either in the form of jewellery etc. or cash\" and deposited the same in a sealed trunk with the Imperial Bank of India, Amritsnr Branch in June 1947. This obvionsly the assessee could not have done unless it had a reasonably large business in Lahore and, therefore, the fact that the assessee d; tl not pay income tax in Lahore cannot have much evidentiary value.\n\nAll that it would show is that, as pointed out by the Tribunal, \"the assessee has not been very straightforward in his dealings with the income-tax departments\".\n\nThe Tribunal also relied upon certain answers given by Roshan Lal when he was questioned by the Members of the Tribunal at the hearing of the appeal. It must be pointed out straight away that\n\nthese answers given by Roshan Lal could not be relied upon by the Tribunal for the purpose of coming to any conclusion adverse to the assessee, because there is a procedure prescribed in Rules 29, 30 and 31 of the Income-Tax Appellate Tribunal Rules for iaking additional evidence before the Tribunal and if the Members of the Tribunal wanted to examine Roshan Lal on any aspects of the case, they should have followed this procedure.\n\nBut unfortunately the Members of the n;•bunal, disregarding the prescribed procedure, put questions to Roshan Lal in an informal manner unauthorised by the Rules.\n\nThe answers given by Roshan Lal could not in the circumstances form part of the record and the Tribunal was not entitled to reply upon the same in arriving at its findings of fact.\n\nIt may be noted that the High Court also took the view that the procedure adopted by the Tlibunal was irregular and the answers given by Roshan Lal should be left out of account. c\n\nOne other circumstance on which the Tribunal relied was that notwithstanding the Press Note issued by the Government of India in January 1952 the assessee did not declare tha~ it had brought assets of the value of Rs. 3,33,414/- from Pakistan and this circumstance, according to the Tribunal, cast considerable doubt on the versiOn put forward by the assessee.\n\nNow, the Press Note of Government of India was not produced before us but we will assume that it did promise a certain concession to the evacuees who declared the assets brought by them from Pakistan.\n\nEven so, . we fail to see how it could be utilised as a circumstance militating against the explanation of the assessee.\n\nBoth according to the Appellate Assistant Commissioner as well as the Tribunal, the assessee did bring assets worth Rs. 1,00,000/- from Lahore in June 1947 and these assets were admittedly not disclosed by the assessee despite the Press Note issued by the Government of India.\n\nThen, how could any inference bedrawn from the non-disclosure of the assets by the assessee that the assessee must not have brought assets representing the balance of Rs. 2,33,414/-? Whether the assets brought by t_he assessee were Rs. 1,00,000/- or Rs. 3,33,414/-, the fact remains that they were not disclosed by the assessee despite the Press Note of the Government of India and hence no adverse inference could be drawn from the fact of non-disclosure of the assets by the assessee.\n\nIt will, therefore, be seen that there was no material on the basis of which the Tribunal could come to the conclnsion that though the assessee had a fairly large business in Lahore and had brought its entire ornaments, jewellery and cash from Lahore and deposited the same in a sealed trunk with the Amritsar Branch of the Imperial Bank of India, these ornaments, jewellery and cash were worth not more than Rs. 1,00,000/-. One may also ask the question that if the assessee <lit! not bring assets worth more than Rs. 1,00,000/- from Lahore, where and how did it get the remaining assets of the value of Rs. 2,33,414/-? Roshan Lal had come away from Lahore as a refugee and conditions in post-partition Ind; a were also highly unsettled and the clear and nndoubted evidence was that neither Roshan Lal nor the assessee had any business or other means of\n\nA income in India until 30th March, 1948. In this situation, it is impossible to believe that the assessee could have earned such a huge amount of profit as Rs. 2,33,414/- within a few months, even if it be assumed that some business was started by it in October 194 7 when Roshan Lal came down to Delhi.\n\nThe utter improbability, amounting almost to imposs;•bility, of the assessee having earned such a large amount of Rs. 2,33,414/- as profit within a few months in B the disturbed conditions which then prevailed in India was a circumstance which ought to have been taken into account by the Tribunal but which the Tribunal unfortunately failed to do. It may be po;\"1ted out that it was not the case of the Revenue that the books of account of the business were subsequently written up and the entry crediting the capital of Rs. 3,33,414/- on 30th March, 1948 was not a genuine entry and the undisclosed profits 9f the subse- C quent years were sought to be concealed by the showing a bogus entry of Rs. 3,33,414/- as capital contribution on 30th March,\n\n1948. If such had been the case, the present argument as to the improbability of the assessee having earned such a huge amount of Rs. 2,33,414/- within a few months, would not have been available to the assessee.\n\nBut the Revenue did not d;'Spute the correctness of the entry and accepted that assets worth Rs. 3,33,414/- were intro- D duced in the business on 30th March, 1948 and sought to include the amount of Rs. 3,33,414/- representing the value of these assets as undisclosed income of the assessee for the assessment year 1948- 49.\n\nThe only question could, therefore, be whether these aisets were brought by the assessee from Lahore in June 194 7 or they represented the concealed income earned by the assessee during the period June 1947 to 30th March, 1948.\n\nThe impossibility of the E assessee having earned such a huge amount of profit with;'l1 a few months immediately after migration to India in the disturbed and unsettled conditions which then prevailed must, therefore, necessarily support the inference that the assessee must have brought these assets from Lahore.\n\nWe are, therefore, of the view that in reaching the conclusion that out of the cap;'tal of Rs. 3,33,414/- credited in the books of the assessee on 30th March, 1948, assets of the value of Rs. 2,33,414/- represented undisclosed income of the assessee for the assessment year 1948-49, the Tribunal acted without any material or in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such finding.\n\nWe accordingly allow the appeal, set aside the order of the High Court and answer the question referred by the Tribunal in the negative. The Commissioner will pay the costs of the appeal to the assessee.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 77, "entities": [{"text": "ROSHAN-DI-HATTI", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "Roshan- Di-Hatti", "offset_not_found": true}}, {"text": "COMMISSIONER OF INCOME TAX", "label": "RESPONDENT", "start_char": 20, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 71, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 87, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Income Tax Act 1922", "label": "STATUTE", "start_char": 133, "end_char": 152, "source": "regex", "metadata": {}}, {"text": "Sec. 34(1)", "label": "PROVISION", "start_char": 153, "end_char": 163, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act 1922", "statute": "Income Tax Act 1922"}}, {"text": "Roshan La", "label": "OTHER_PERSON", "start_char": 785, "end_char": 794, "source": "ner", "metadata": {"in_sentence": "In view of the impending partition of Jndia, Roshan La] d, ecided to move out of Lahore and accordingly transferred sums of Rs.", "canonical_name": "Roshan Lail"}}, {"text": "Lahore", "label": "GPE", "start_char": 821, "end_char": 827, "source": "ner", "metadata": {"in_sentence": "In view of the impending partition of Jndia, Roshan La] d, ecided to move out of Lahore and accordingly transferred sums of Rs."}}, {"text": "Lahore Banks", "label": "ORG", "start_char": 912, "end_char": 924, "source": "ner", "metadata": {"in_sentence": "6,000/- from Lahore Banks to New Delhi Banks."}}, {"text": "New Delhi Banks", "label": "GPE", "start_char": 928, "end_char": 943, "source": "ner", "metadata": {"in_sentence": "6,000/- from Lahore Banks to New Delhi Banks."}}, {"text": "Mussoorie", "label": "GPE", "start_char": 978, "end_char": 987, "source": "ner", "metadata": {"in_sentence": "He left Lahore and proceeded to Mussoorie in June, 1947."}}, {"text": "Amritsar", "label": "GPE", "start_char": 1030, "end_char": 1038, "source": "ner", "metadata": {"in_sentence": "On his way, he stopped at Amritsar for a few days and opened an account with the Imperial Bank of India with a view to obtaining a locker in the Safe Deposit Vault but a locker was not available and hence he denosited a trunk \\Vhich he had brought from Lahore containing gold ornaments, jewellery and cash with the Imperial Bank of India."}}, {"text": "Imperial Bank of India", "label": "ORG", "start_char": 1085, "end_char": 1107, "source": "ner", "metadata": {"in_sentence": "On his way, he stopped at Amritsar for a few days and opened an account with the Imperial Bank of India with a view to obtaining a locker in the Safe Deposit Vault but a locker was not available and hence he denosited a trunk \\Vhich he had brought from Lahore containing gold ornaments, jewellery and cash with the Imperial Bank of India."}}, {"text": "Delhi", "label": "GPE", "start_char": 1364, "end_char": 1369, "source": "ner", "metadata": {"in_sentence": "The assesSee came to Delhi in October, l 947."}}, {"text": "30.3.1948", "label": "DATE", "start_char": 1498, "end_char": 1507, "source": "ner", "metadata": {"in_sentence": "In February, 1948, he succeeded in securing business premises \"and started business on 30.3.1948."}}, {"text": "Imperial Bank of India, Delhi", "label": "ORG", "start_char": 1678, "end_char": 1707, "source": "ner", "metadata": {"in_sentence": "4,000/- Bank balance \"\"'ith the Imperial Bank of India, Delhi Rs."}}, {"text": "Hindustan Commercial Bank, Delhi", "label": "ORG", "start_char": 1739, "end_char": 1771, "source": "ner", "metadata": {"in_sentence": "35,053/- Bank Balance with Hindustan Commercial Bank, Delhi Rs."}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2138, "end_char": 2149, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 2157, "end_char": 2184, "source": "regex", "metadata": {}}, {"text": "Roshan", "label": "OTHER_PERSON", "start_char": 3001, "end_char": 3007, "source": "ner", "metadata": {"in_sentence": "The assessee observed that till he started his business in March 1948, neither the :-i.ssessee nor Roshan Lal had any other business or means of income fr0n1 \\vhic; h the amount of Rs.", "canonical_name": "Roshan Lail"}}, {"text": "Roshan Lal", "label": "OTHER_PERSON", "start_char": 3200, "end_char": 3210, "source": "ner", "metadata": {"in_sentence": "The ITO also examined the brothers of Roshan Lal who stated that the father of Roshan Lal was a man of ordinary means who \\Vas almost reduced to penury by about 1940 and that he had given a sum of Rs.", "canonical_name": "Roshan Lail"}}, {"text": "New Delhi", "label": "GPE", "start_char": 4185, "end_char": 4194, "source": "ner", "metadata": {"in_sentence": "6.000/- from Banks as Lahore to the Bank at New Delhi."}}, {"text": "Government of India", "label": "ORG", "start_char": 5386, "end_char": 5405, "source": "ner", "metadata": {"in_sentence": "The main arguments which weighed with the Tribunal were :\n\n(1) that the weight of the box was too less:\n\n(2) that the assessee did not disclose his assets under the scheme of the Government of India published in the Press Note in January 1952, requiring a11 evacuees to declare the amounts of money brought by them from Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 5527, "end_char": 5535, "source": "ner", "metadata": {"in_sentence": "The main arguments which weighed with the Tribunal were :\n\n(1) that the weight of the box was too less:\n\n(2) that the assessee did not disclose his assets under the scheme of the Government of India published in the Press Note in January 1952, requiring a11 evacuees to declare the amounts of money brought by them from Pakistan."}}, {"text": "Mehta Parikh", "label": "PETITIONER", "start_char": 6401, "end_char": 6413, "source": "ner", "metadata": {"in_sentence": "Mehta Parikh &: Co. v. Commissioner of Income-Tax Bombay 30\n\nITR 18 L followed."}}, {"text": "India", "label": "GPE", "start_char": 8839, "end_char": 8844, "source": "ner", "metadata": {"in_sentence": "It was not proved that Roshan Lal or the assessee had nny business or other mearrs of income in India until 30.3.1948."}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 9581, "end_char": 9590, "source": "ner", "metadata": {"in_sentence": "6-D of 1964)\n\nA. K. Sen, V. S. Desai and Bishamber Lal, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 9592, "end_char": 9603, "source": "ner", "metadata": {"in_sentence": "6-D of 1964)\n\nA. K. Sen, V. S. Desai and Bishamber Lal, for the appellant."}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 9608, "end_char": 9621, "source": "ner", "metadata": {"in_sentence": "6-D of 1964)\n\nA. K. Sen, V. S. Desai and Bishamber Lal, for the appellant."}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 9643, "end_char": 9655, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma and S. P. Nayar, for the respondent."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 9660, "end_char": 9671, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma and S. P. Nayar, for the respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 9738, "end_char": 9746, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-This is an appeal by special leave directed against\n\nthe Judgment of the Delhi High Court answering in favour of the Revenue a question which was directed to be referred by the Tnbunal under section 66 (2) of the Indian Income Tax Act, 1922."}}, {"text": "section 66", "label": "PROVISION", "start_char": 9942, "end_char": 9952, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 9964, "end_char": 9991, "source": "regex", "metadata": {}}, {"text": "Roshan Lail", "label": "OTHER_PERSON", "start_char": 10284, "end_char": 10295, "source": "ner", "metadata": {"in_sentence": "The assessee was at the material time a Hindu Undivided Family with one Roshan Lail as its manager and karta.", "canonical_name": "Roshan Lail"}}, {"text": "Punjab National Bank Ltd.", "label": "ORG", "start_char": 10759, "end_char": 10784, "source": "ner", "metadata": {"in_sentence": "He also transferred from the Lahore\n\nBranch of the Punjab National Bank Ltd. to the branch of that bank at New Delhi two sums of Rs."}}, {"text": "25th June, 194 7", "label": "DATE", "start_char": 11618, "end_char": 11634, "source": "ner", "metadata": {"in_sentence": "It seems that a locker was not available and hence he deposited the trunk in a sealed condition with the Amritsar Branch of the Imperial Bank of India on 25th June, 194 7."}}, {"text": "Haridwar", "label": "GPE", "start_char": 11858, "end_char": 11866, "source": "ner", "metadata": {"in_sentence": "Roshan Lal then went to Mussoorie via Haridwar and stayed at Mussoorie until aboul October 1947."}}, {"text": "Dariba Kalan", "label": "GPE", "start_char": 12325, "end_char": 12337, "source": "ner", "metadata": {"in_sentence": "He started looking for suitable premises for commencing business and it was only in February 1948 that lie succeeded in securing suitable premises at Dariba Kalan in Delhi."}}, {"text": "Roshan-Di-Hatti", "label": "PETITIONER", "start_char": 12436, "end_char": 12451, "source": "ner", "metadata": {"in_sentence": "He tfien started gold and jewellery business in these premises in the name and style of Roshan-Di-Hatti on 30th March, 1948.", "canonical_name": "Roshan- Di-Hatti"}}, {"text": "30th March, 1948", "label": "DATE", "start_char": 12455, "end_char": 12471, "source": "ner", "metadata": {"in_sentence": "He tfien started gold and jewellery business in these premises in the name and style of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Roshan-Di-Hatti", "label": "ORG", "start_char": 13050, "end_char": 13065, "source": "ner", "metadata": {"in_sentence": "It appears that the assessee prospered in this gold and jewellery business of Roshan-Di-Hatti but it did not file any return of income nor paid any income tax."}}, {"text": "section 34(1)(a)", "label": "PROVISION", "start_char": 13415, "end_char": 13431, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 13439, "end_char": 13466, "source": "regex", "metadata": {}}, {"text": "30th March; 1948", "label": "DATE", "start_char": 13787, "end_char": 13803, "source": "ner", "metadata": {"in_sentence": "3,33,414/- brought by it into the business on 30th March; 1948."}}, {"text": "Hindustan Commercial Bank", "label": "ORG", "start_char": 14166, "end_char": 14191, "source": "ner", "metadata": {"in_sentence": "The assessee pointed\n\nout that gold rawa, ornaments and, cash representing thi!l capital were A brought by Roshan Lal when he migrated from Lahore and they were kept in a sealed trnnk with t!he Amritsar Branch of the Imperial Bank of India and when Roshan Lal came over to Delhi in October 194 7, he deposited the same in a locker in the safe deposit vault of Hindustan Commercial Bank at Delhi and when the business of the assessee was commenced, he surrendered the locker and brought the entire gold, jewellery and cash into the business."}}, {"text": "Roshan- Di-Hatti", "label": "PETITIONER", "start_char": 14504, "end_char": 14520, "source": "ner", "metadata": {"in_sentence": "It was emphasised by the B assessee as a supportive fact that after Roshan Lal migrated from Lahore in June 194 7 until the assessee started the business of Roshan- Di-Hatti on 30th March, 1948, neither the assessee nor Roshan Lal had any other business or means of income from which the assets of Rs.", "canonical_name": "Roshan- Di-Hatti"}}, {"text": "Hira Lal", "label": "OTHER_PERSON", "start_char": 14848, "end_char": 14856, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Mulk Ram", "label": "OTHER_PERSON", "start_char": 14910, "end_char": 14918, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Billa Mal", "label": "OTHER_PERSON", "start_char": 14920, "end_char": 14929, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Dalal", "label": "PETITIONER", "start_char": 14931, "end_char": 14936, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Wazir Chand", "label": "OTHER_PERSON", "start_char": 14938, "end_char": 14949, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Devida' Mehra", "label": "OTHER_PERSON", "start_char": 14951, "end_char": 14964, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948.", "canonical_name": "Devida' Mehra"}}, {"text": "Panna Lal", "label": "OTHER_PERSON", "start_char": 14969, "end_char": 14978, "source": "ner", "metadata": {"in_sentence": "The assessee also examined c Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devida' Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948."}}, {"text": "Prem Nath", "label": "OTHER_PERSON", "start_char": 15286, "end_char": 15295, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer also examined Prem Nath and Kishan Chand, D brothers of Roshan Lal."}}, {"text": "Kishan Chand", "label": "OTHER_PERSON", "start_char": 15300, "end_char": 15312, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer also examined Prem Nath and Kishan Chand, D brothers of Roshan Lal."}}, {"text": "Rosh an Lal", "label": "OTHER_PERSON", "start_char": 15534, "end_char": 15545, "source": "ner", "metadata": {"in_sentence": "2000 /- to his son Rosh an Lal for starting gold and jewelery business in 1935 and he had also 'ubsequently lent some monies to Roshan Lal at nominal interest.", "canonical_name": "Roshan Lail"}}, {"text": "Punjab National Bank", "label": "ORG", "start_char": 17560, "end_char": 17580, "source": "ner", "metadata": {"in_sentence": "12,094/- from the Punjab National Bank account at Lahore to the same bank in New Delhi in June 1947."}}, {"text": "Punjab National Bank, Lahore", "label": "ORG", "start_char": 17771, "end_char": 17799, "source": "ner", "metadata": {"in_sentence": "6,000/- in his wife's name from the Punjab National Bank, Lahore, to the same Bank at Minto Road, New Delhi and fixed deposit receipts were taken for this total sum of Rs."}}, {"text": "Delhi Bank", "label": "ORG", "start_char": 17925, "end_char": 17935, "source": "ner", "metadata": {"in_sentence": "19,000/- from the Delhi Bank in July 1947."}}, {"text": "State Bank of India", "label": "ORG", "start_char": 18056, "end_char": 18075, "source": "ner", "metadata": {"in_sentence": "All these monies including the realised fixed deposits later on went into the assessee's account with the State Bank of India which reveals a credit balance of Rs."}}, {"text": "30-3-1948", "label": "DATE", "start_char": 18129, "end_char": 18138, "source": "ner", "metadata": {"in_sentence": "35,053/- as on 30-3-1948."}}, {"text": "25th June, 1947", "label": "DATE", "start_char": 19590, "end_char": 19605, "source": "ner", "metadata": {"in_sentence": "There on the 25th June, 1947 he deposited a sea(ed box with the State Bank of India Amritsar Branch."}}, {"text": "State Bank of India Amritsar Branch", "label": "ORG", "start_char": 19641, "end_char": 19676, "source": "ner", "metadata": {"in_sentence": "There on the 25th June, 1947 he deposited a sea(ed box with the State Bank of India Amritsar Branch."}}, {"text": "20-10-47", "label": "DATE", "start_char": 19716, "end_char": 19724, "source": "ner", "metadata": {"in_sentence": "This box was withdrawn by him on the 20-10-47."}}, {"text": "Hindustan Commercial Bank Ltd.", "label": "ORG", "start_char": 20591, "end_char": 20621, "source": "ner", "metadata": {"in_sentence": "It must also be noted that as early as June, 1947, the assessee hired a locker in the Hindustan Commercial Bank Ltd., New Delhi."}}, {"text": "I0-3-1948", "label": "DATE", "start_char": 21225, "end_char": 21234, "source": "ner", "metadata": {"in_sentence": "It is true that the capital disclosed in the books as on :I0-3-1948 is mostly unverifiable and even assuming that the."}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 21759, "end_char": 21781, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner thus reduced the figure undisclosed income of the assessee to Rs."}}, {"text": "Devidas Mehra", "label": "OTHER_PERSON", "start_char": 23637, "end_char": 23650, "source": "ner", "metadata": {"in_sentence": "3,33,414/- and yet it had not filed\n\nany income tax return nor was it ever assessed to income tax m Lahore and fourthly, the depositions of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devidas Mehra and Panna Lal were vague and based on hearsay and they had no evidentiary value in the absence of contemporaneous primary evidence.", "canonical_name": "Devida' Mehra"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 24078, "end_char": 24082, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(2)", "label": "PROVISION", "start_char": 24471, "end_char": 24484, "source": "regex", "metadata": {"statute": null}}, {"text": "31st March, 1948", "label": "DATE", "start_char": 24921, "end_char": 24937, "source": "ner", "metadata": {"in_sentence": "3,33,414/- credited in the books of account of the assessee on 31st March, 1948, represented income from undisclosed source ?"}}, {"text": "Commi", "label": "PETITIONER", "start_char": 28486, "end_char": 28491, "source": "ner", "metadata": {"in_sentence": "It is true that the assessee was not paying any Income tax in Lahore but, as pointed out by the Appellate Assistant Commi, ssioner in his order, a number of letters and receipts regarding business transactions in Lahore were filed by the assessee which showed that the business in Lahore was not smaU\n\nand there were documents and papers which referred to dealings involving Rs."}}, {"text": "State Bank of India, Amritsar", "label": "ORG", "start_char": 31366, "end_char": 31395, "source": "ner", "metadata": {"in_sentence": "or cash, or otherwise he would not have taken the precaution of either depositing the sealed box with the State Bank of India, Amritsar or opening a locker in a New Delhi Bank\"."}}, {"text": "Imperial Bank of India, Amritsnr Branch", "label": "ORG", "start_char": 32810, "end_char": 32849, "source": "ner", "metadata": {"in_sentence": "or cash\" and deposited the same in a sealed trunk with the Imperial Bank of India, Amritsnr Branch in June 1947."}}, {"text": "Roshan Lal in an informal manner unauthorised by the Rules", "label": "STATUTE", "start_char": 33974, "end_char": 34032, "source": "regex", "metadata": {}}, {"text": "30th March,\n\n1948", "label": "DATE", "start_char": 37752, "end_char": 37769, "source": "ner", "metadata": {"in_sentence": "3,33,414/- as capital contribution on 30th March,\n\n1948."}}]}
{"document_id": "1977_3_165_171_EN", "year": 1977, "text": "VANGUARD ROLLING SHUTTERS\n\nAND STEEL WORKS LTD. v.\n\nCOMMISSIONER OF SALES TAX, U.P.\n\nMarch 8, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J\n\nS'ales Tax-Contract for sale of material and works contract-Tests for distinguis!1f11g.\n\nThe nse'iee, \\vho was a manufacturer of iron shutters, fabricates the different nart:; and comoonents and fits them into shutters.\n\nThe shutters are prepared ric, c1ding to the specific requirementfJ cf the customer and fixed in the custotner's p::emises.\n\nThough the ma<; onary work connected with the fitting of the shutters \\Vas done by the customer, it was done according to the contractor's instructions.\n\nThe contract was comr>lete after the shutters were taken to the ore1nises of the customer and affixed to tho building; and when htted into the-\\Valls the shutters becom.e permanently embedded into the wall<; and are not detachable.\n\nThe price charged by the contractor from the customer was a lun1psum and did not show a break up of the rnaterials used or fabricated or the cost of services or labour.\n\nThe assessee claimed that the contract being a works contract, the proceeds from such contracts: are not exigible to tax.\n\nBut this plea vvas rejected by the Sales Tax Officer.\n\nThe asses<iee's appe::il was rejected by the Assi-stant Commissioner (Judicial). The Judge (Revisions) SalesTax upheld the assesee.'s contention.\n\nOn reference the High Court held that the contract was not a v.orks contract but a contract for the supply of gocxls sin1pliciter.\n\nAllowing the .. assessee's appeal,\n\nHELD '. The contract in the present case was a works contract and the transaction \\Va\"> not exiiible to tax.\n\nThe High Court was in error in holding that the assessee wa~ liable to pay tax on the sale proceeds of the contract.\n\n[171 EJ\n\n( 1) The question whether a contract can be said to be a works contract has to depend on the facts of each case.\n\nIt is difficult to lay down any rule of universal application but some of the important tests evolved by this Court are: [168 HJ\n\n(i) Where the contra:ct was primarily a contract for the supply of materials at a price agreed to bet\\veen the parties for the materials so supplied and the work or service rendered is incidental to the execution of the contract, the contract is one for sale of materials and the sal_e proceeds would be exigible to sales-tax. [169 A-Bl\n\n(ii) Where the contract is primarily for work and Jabour, and materials\n\nare supplied in execution of such contract, there is no contract for sale of G ni.ateriats but it is a works contract.\n\nThe circumstance that the materials have no evarate identity as a commercial article and it is only by bestowing \\\\'Ork and labour upon them, that is, by affixing them to the building Would be prilna facie indicative of a works contract.\n\nWhere certain materials are not :rr.erely suppi; cd but fixed to an immovable property so as to become a per~ nJanent fixtlire apd anl accretion to the said property, the contract prbna facie would be a works contract. [169 CJ Jn the instant case the transa<:tion was a composite, consolidated contract which was one and indivisible comprising labour and services executed for a H Jumpsum.\n\nThe contract could be completed when materials with various component parts had been taken to the site, fitted into one another and then finally fixed ibt0 a frame so that the fixture became permanent and a, part of\n\n... the premises. This operation oould not be. sai, d to be merely incidential to the contract but was fundamental part of the contract itself. [168 I' & 170 A]\n\n(2) It is not correct to say that the contract could not be a works contract because the price was paid in advance and the title passed to the customer as soon as the shutters were packed and despatched to the site.\n\nAdvance payment of the price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment; the contract would be completed only after the shutters were finally assembled at the site and fixed according to specifications, which was essentially the responsibility of the contractor. (170 DJ\n\nState of' Rajasthan v. Man Industrial Corporation Ltd. 24 -5:r C. 349, 355 and Srate of RajaSthan v. Nanu Ran1 26 S.T.C. 268 followed.\n\nState of Madras v. Richardson and Cruddas Ltd. 21 S.T.C. 245 (S.C.) and Con1n1issioner of Sales Tax. M.P. v. Purshottam Premji 25 S.T.C. 38. referred to.\n\nMis T. V. Su11dran1 Iyengar & Sons v. The State of Madras 35 S.T.C. 24-[19751 2 S.C.R. 372 distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 106 of 1976.\n\n(Appeal by Special Leave from the Judgement and Order dated 30.9.1975 of the Allahabad High Court in S.T.R. No. 698/70)\n\nS. C. Manchanda, Mrs. Urmila Kapoor, !. D. Jain and Miss Kamlesh Bansal, for the appellant.\n\nG. N. Dikshit and 0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nF AZAL Au, J .-This is an appeoal by special leave by the assessee who was a contractor dealing in fabrication of Vanguard rolling shutters and steel works.\n\nThe assessee manufactures iron shutters according to specifications given by the parties and fixes the same at the premises of the customers. In the assessment year 1965-66 the assessee received an aggregate sum of Rs. 1,08,633-08 in the execution of such contracts. This amount was claimed by the assessee as not being liable to sales tax during the •assessment year 1965-66 on the ground that the same represented the proceeds of work contracts.\n\nThe Sales Tax Officer rejected the plea of the assessee and the Assistant Commissioner (Judicial) on appeal also affirmed the order of the Sales Tax Officer. But the plea of the assessee appears to have found favour with the Judge (Revisions) Sales Tax who decided that the amount was not exigible to sales tax, because the contracts in question were work contracts. Thereafter at the instance of the Commissioner, the Revising Authority made a reference to the High Court and referred the following question of law for its opini0n :\n\n\"Whether under the circumst•ances of the case and under the terms of the contract the supply of shutters and iron gates worth Rs. 1,08,633-08 was sale or amounted to work H contract ?\"\n\nThe High Court, after hearing the parties and considering the materials on the record, came to the conclusion that the contract entered into\n\n• I\n\nVANGUARD ROLLING v. COMMR. OF S.T. (Fazal Ali, J.) 167\n\nby'the appellant was not 'a work contract but a contract for the sup- A ply of goods simpliciter and the assessee, was, therefore, liable to pay ; tax.\n\nThe question referred to the High Court was answered accordingly.\n\nThe assessee's case was that having regard to the circumstances of the present case, the terms and conditions of the contract and the nature of the work done by the appellant the contract in que•tion B was out and out a work contract and not a contract for supply of goods or materials, In order to decide this question it may be neces- . sary first to give the salient features of the contract between the parties.\n\nA specimen of the contract has been filed by the assessee ao Annexure 'A' in the Paper Book, the relevant portions of which may be extracted thus :\n\n\"Please erect at our premises .... Nos. of .... of the C following: dimension against the contract price of Rs. . .. . .\n\n1. Full payment against delivery prior to despatch or documents by Bank. It is clearly understood that there will be no such thing as to make payment after fixing.\n\n2. Material will be carried to the side of work at cost of the party.\n\nOur responsibility ceases when the same leaves our premises. 3. x x x\n\n4. We dlil not hold ourselves responsible for any structural damage or dispute with the landlord. Masomiry work done by the party at his cost according to our instructions.\n\n5. x x x\n\n6. No responsibilities for non.delivery or late despatch of goods due. to any reason beyond our control.\" It would appear from the terms extracted above, that the assessee was required under the contract to fabricate the rolling shutters in the first instance, to bring them to the site and thereafter to erect the same at the premises. In an application given to the Assistant Come missioner (Judicial), which is Annexure 'C' of the Paper Book, by the assessee he explains the various steps which the contractor had to take in order to fix the rolling shutters to the factory premises of the owner.\n\nFirst the different parts and components of the rolling shuUers are fabricated. It is only when the various component parts are fitted into one that they constitute the rolling shutter as one unit, and taken separately they have no separate existence. It was further explained that the component parts do not constitute a rolling shntter unless they are affixed to and erected in the building in position and in the required manner. It was further alleged that the contract was not concluded merely by delivery of fabricated materials but. was completed only afkr the same were taken to the site and ftnally erected and affixed to the site of the building. In order to fix them\n\n12--240SCI/77\n\nto the premises certain masonary work had to be done by the owner and that too according to the instructions of the contractor. It was also averred that in erection of the shutters some parts were permanently. embedded into the walls and lintals and they become permanent fixtures which are 'not detachable. The allegations made in\n\nAnneure 'C' have not been controverted by the State either in this Court or before the. High Court.\n\nMoreover, the Indian Standard\n\nSpecication Book for Metal Rolling Shutters and Rolling Grills the particulars of the fittings of rolling shritters, whose authenticity has not been doubted by counsel for the parties, clearly shows that rolling shutters consist of curtains, lock plates, guide channels, bracket plates, rollers, hood covers, gears, worms, fixing bolts, safety devices, anchoring rods, central hasp and staple. Each guide channel has to be provided with a minimum of three fixing cleats or supports for attachment to the walls or column by means of bolts or screws. The guide channels are further attached to the jambs, plumb either iu the overlapping fashion, projecting fashion or embedded in grooves, depending on the method of fixing.\n\nAll these operations take place at the site after despatch of the component parts of the rolling shutter.\n\nHood covers are fixed in a neat manner and supported at the top at suitable intervals.\n\nThis also has to be done at the site. . Item 11.1 of the specifications shows that the rolling shutter curtain and bottom lock plate are interlocked together and rolled in one piece, but the other p&rts like guide channels, bracket plates, rollers etc., are despatched separately. Item 12.1 shows that all the rolling shutters are erected by the manufacturer or his authorizoo representative hi a sound manner, so as to afford trouble-free and easy operation, long life and neat appearance. Even after erection is done, grease is ap~ plied to the springs and on the sides of the guide channels.\n\nThus the process involved in the fabrication of a rolling shutter and its actual fixing to the premises at the site is a .continuous one and is completed only when erection is completed in every way.\n\nThe price charged by the contractor from the owner of the premises is one lumpsum with_<:>ut at all specifying as to what part is meant for the materials used or fabricated and what part for the services or labour put in by the contractor. It is, therefore, clear that in the facts and circumstances of the present case, the transaction is a composite consolidated contract which is one and indivisible comprising labour and servics executed for a lumpsum. It is also clear that the materials are not merely supplied to the owner so as to pass as chattel 'simpliciter, but are actually fixed to an immovable property and after the same arc fixed and erected they become a permanent fixture so as to become an accretion to the immovable property. In these circumstances, the conclusion is inescapable that the present contract cannot he said to be a pure and simple sale of goods or materials as chattels hut is a work contract. It is well settled ihat a work contract is a contract for construction of bridges, buildings etc., and infor a Iumpsum. The question as to under what circumstances a contract can be s1id to be a work contract is not free from difficulty and has to depend on the facts of each case. It is difficult to lay down any rule of universal application, but there are some well recognized tests which are laid down by decided cases. of this Court which afford\n\n.~\n\n........\n\n~ '\n\nVANGUARD ROLLING v. COMMR. OF S.T. (Faza.I Ali, J.) 169\n\nguidelines for determining as to whether a contract in question is a work contract or a con.tract for supply of goods. One of the important tests is to find out whether the contract is primarily a contract\n\nfor supply of materials at a price agreed to between the parties for the materials s~ supphed and the work or service rendered is incidental to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be exigible to sales tax.\n\nOn the other hand where the contract is primarily a contract for work and labour and materials are supplied in execution of suck contract, . there is no contract for sale of materials but it is a work contract.\n\nThe circumstance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, as for example by affixing them to the building in case of window-leaves or wooden doors and windows that they acquire commercial identity, would be prima facie indicative of a work contract.\n\nSo also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixure and an accretion to the said property, the contract prima facie would be work contract.\n\nThis is exactly what has happened in the present case.\n\nIn State of Rajasthan v. Man Industrial Corporation Ltd.('), after discussing the entire case law on the subject, this Court observed as follows :\n\n\"The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale.\"\n\nAlthough the aforesaid case appears to us to be on all fours with the facts of the present case, the High Court merely noticed the decision, but did not try to apply it to the facts of the present case. Jn Mm1 Industrial Corporation Ltd's case (supra) the contract was to prepare window-leaves according to specifications and fix them to the building.\n\nF It was held that fixing the window leaves to the building was not incidental or subsidiary to the sale but an essential term of the contract, because the contract became complete only after the windows v:ere fixed as stipulated in the contract. Similarly ill. the instant case, the contract could not be completed merely by sending the matenals at the site but would be completed only after erection of the shutters had been made and the shutters fixed to the premises so as to beco1:ie G an accretion to the premises.\n\nMr. Dikshit appearing for the State submitted that in the present case the contract was merely for the supply of shutters in one unit after being fabricated by the contractor and the price was paid for the shutters, the question of fixing the shutters at the site was not an integral part of the contract but was only incidental to the supply of mate, rials and, therefore, the contract was not a work contract.\n\nH We are, however, unable to agree with this contention, because as\n\n(I) 24 S.T.C. 349, 355.\n\nA . discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame. so tt.ut the fixture became permanent and a part of the premises.\n\nThe operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man B Industrial Corporation Ltd's case (supra) fully covers the facts of the present case.\n\nIt was further argued by Mr. Dikshit learned counsel appooring for the State that it will appear from the terms of the contract that the price of the goods had to be paid in advance before delivery of the same to the wstomer which shows that the title to the shutters passed C to the customer as soon as the shutters were packed and despatched to the site and the price paid and therefore the contract in the instaut case cpuld not be a work contract. It is not possible to oaccept this contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the shutter~ were fully D assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractor.\n\nIn Richardson and Crudda.s Lta. v. State of Madras(') there was a similar recital in the contract for full price to be paid in advance and still the Madras High Court held that the contract was a work contract.\n\nThe decision of the Madras High Court was approved by this Court in Man Industrial Corporation Ltd's case (Supra) and affirmed by this E Court in Staie of Madras v. Richardson and Cruddas Ltd.(2 ) Fer these reasons the contention put forward by Mr. Dikshit on this sc01e is overruled.\n\nIn a later case of this Court in State of Rajasthan v. Nanu Ram(•) tenders were invited by the Chief Engineer from the contractors for supplying and fixing of wooden door and windows, sashas together with frames and painting them in the police lines building and for F supplying and fixing the wooden chowkhats and this was held to be a work contract. The decision 'in Man Industrial Corporation Ltd's case (supra) was followed by this Court in that case. Again in Commissioner of Sales Tax, M.P. v. Purshottam Premji(') this Court indicated the essential difference between a contract for work and services and a contract for sale of goods and observed as follows : G \"The primary difference between a ontract. for work or service and a contract for sale of goods Is that m the former there is in .the person performing work or rendering service no property in the thing produced as a whole .... In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property H\n\n(1) 16 S.T.C. 827.\n\n(2) 21 $.T.C. 245 (S.C.).\n\n(3) 26 S.T.C. 26g.\n\n(4) 2{; S.T.C. 38..\n\n...\n\n' ·-\n\nVANGUARD ROLlING v. COMMR. OF S.T. (Fazal Ali, !.) . 171\n\ntherein passes only under the contract relating thereto to the A other party for price.\"\n\nThe High Court placed great reliance on the decision in M/ s T. V.\n\nSundram Iyengar & Sons v. The State of Madras(').\n\nIn that case what had happened was that the contractor built bus bodies and fitted the same to the chassis provided by the customers and clharged tbe price for building the' body and fitting the same to the chassis. It was held by this Court that the contract was completed only when the complete bus with the body fitted to the chassis was delivered to the customer and, therefore, the supply of body being one single. unit constituted a sale of goods. That case is clearly distinguishable from the facts and circumstances of the present case.\n\nIn the first place, the supply of materials and completion of the contract was indisputably in respect of movable property, no immovable property was at all involved at any st1ge in .the process of completion of the contract.\n\nThe bus-body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis which was also movable property. Secondly, the bodies constructed and fitted to the clhas.sis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detachable.\n\nThe High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case.\n\nWe are of the considered opinion that the present-case is clearly covered by the two decisions of this Court referred to in Man Industrial Corporation Ltd's case and Nenu Ram's case (supra), and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the contract.\n\nWe, therefore, allow this appeal, set aside the order of the High Court and restore the order of the Revising Authority and hold that the assessee was not liable .to pay sales-tax. The appellant will be entitled to his costs throughout.\n\nP.B.R.\n\nAppeal allowed .\n\n(I) 35 S.T.C. 24-IJ975] 2 S.C.l'l. 372.", "total_entities": 19, "entities": [{"text": "VANGUARD ROLLING SHUTTERS\n\nAND STEEL WORKS LTD", "label": "PETITIONER", "start_char": 0, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "VANGUARD ROLLING SHUTTERS AND STEEL WORKS LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF SALES TAX, U", "label": "RESPONDENT", "start_char": 52, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES TAX, U.P", "offset_not_found": false}}, {"text": "March 8, 1977", "label": "DATE", "start_char": 85, "end_char": 98, "source": "ner", "metadata": {"in_sentence": "v.\n\nCOMMISSIONER OF SALES TAX, U.P.\n\nMarch 8, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.J\n\nS'ales Tax-Contract for sale of material and works contract-Tests for distinguis!1f11g.\n\nThe nse'iee, \\vho was a manufacturer of iron shutters, fabricates the different nart:; and comoonents and fits them into shutters."}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 101, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 120, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4529, "end_char": 4557, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 4712, "end_char": 4727, "source": "ner", "metadata": {"in_sentence": "698/70)\n\nS. C. Manchanda, Mrs. Urmila Kapoor, !."}}, {"text": "Urmila Kapoor", "label": "LAWYER", "start_char": 4734, "end_char": 4747, "source": "ner", "metadata": {"in_sentence": "698/70)\n\nS. C. Manchanda, Mrs. Urmila Kapoor, !."}}, {"text": "D. Jain", "label": "LAWYER", "start_char": 4752, "end_char": 4759, "source": "ner", "metadata": {"in_sentence": "D. Jain and Miss Kamlesh Bansal, for the appellant."}}, {"text": "Kamlesh Bansal", "label": "LAWYER", "start_char": 4769, "end_char": 4783, "source": "ner", "metadata": {"in_sentence": "D. Jain and Miss Kamlesh Bansal, for the appellant."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 4805, "end_char": 4818, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 4823, "end_char": 4833, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and 0."}}, {"text": "F AZAL Au", "label": "JUDGE", "start_char": 4900, "end_char": 4909, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nF AZAL Au, J .-This is an appeoal by special leave by the assessee who was a contractor dealing in fabrication of Vanguard rolling shutters and steel works."}}, {"text": "s1", "label": "PROVISION", "start_char": 12415, "end_char": 12417, "source": "regex", "metadata": {"statute": null}}, {"text": "Dikshit", "label": "OTHER_PERSON", "start_char": 15379, "end_char": 15386, "source": "ner", "metadata": {"in_sentence": "Mr. Dikshit appearing for the State submitted that in the present case the contract was merely for the supply of shutters in one unit after being fabricated by the contractor and the price was paid for the shutters, the question of fixing the shutters at the site was not an integral part of the contract but was only incidental to the supply of mate, rials and, therefore, the contract was not a work contract."}}, {"text": "Man B Industrial Corporation Ltd", "label": "ORG", "start_char": 16361, "end_char": 16393, "source": "ner", "metadata": {"in_sentence": "In our opinion, therefore, the decision in Man B Industrial Corporation Ltd's case (supra) fully covers the facts of the present case."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 17478, "end_char": 17495, "source": "ner", "metadata": {"in_sentence": "v. State of Madras(') there was a similar recital in the contract for full price to be paid in advance and still the Madras High Court held that the contract was a work contract."}}, {"text": "Man Industrial Corporation Ltd", "label": "ORG", "start_char": 17609, "end_char": 17639, "source": "ner", "metadata": {"in_sentence": "The decision of the Madras High Court was approved by this Court in Man Industrial Corporation Ltd's case (Supra) and affirmed by this E Court in Staie of Madras v. Richardson and Cruddas Ltd.(2 ) Fer these reasons the contention put forward by Mr. Dikshit on this sc01e is overruled."}}, {"text": "Nenu Ram", "label": "OTHER_PERSON", "start_char": 20770, "end_char": 20778, "source": "ner", "metadata": {"in_sentence": "We are of the considered opinion that the present-case is clearly covered by the two decisions of this Court referred to in Man Industrial Corporation Ltd's case and Nenu Ram's case (supra), and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax."}}]}
{"document_id": "1977_3_172_181_EN", "year": 1977, "text": "SHIV MOHAN SINGH v.\n\nSTATE (DELHI ADMINISTRATION)\n\nMarch 10. 1977\n\n(Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.]\n\nReview-Exercise of the powers of Review inust be justified by lite co1npelling pressure of fresh circumstances within the limits of law-Suprenze Court Rules. 1966 Order XI-Penal Code (1860) S. 302-Sentence-Validity of death sentence. ~\n\nCriminal Procedure Code, 1973 (Act /I of 1974)-Section 235(2)-Right to be heard al the stage of passing sentence-Considerations in sentencing.\n\nThe petitioner was convicted u/ s 302 I.P .C. and sentenced to death by the trial court which was confirmed by the High Court.\n\nThe Special Leave\n\npplication, to this Court was dismissed. A further petition for rehearing and a review petition thereafter having been dismissed, a petition for directions regarding remand of the case to the court of Sessions for reconsideration of the sentence in !he light of s.235(3) of the Criminal Procedure Code 1973, was made, simultaneously with mercy petitions to the President.\n\nThe mercy petitions to the President and the petition for direction to this Court having been rejected .. the petitioner's father moved the instant review petition.\n\nDismissin~ the petition the Court, HELD : ( 1) This court's review power has repeatedly been invoked in vain and ntu1ally a further exercise of the same power must be justified by the compelling pressure of fresh circumstances within the limits of law.\n\nRecognised grounds such as manifest injustice induced by obvious' curial error or oversight or new and important matter not reasonably within the ken or reach of the party seeking review on the prior occasion, may warrant inter~ E ference to further justice.\n\n(2) Under the Indian Penal Code death penalty has been ruled to be constitutkmal. The law having sanctioned it and this Court having refused special leave against conviction and sentence in this very case, it is a vanquished cause to argue for a vague illegality vitiating capital sentence as such.\n\n[179 D-E]\n\nGregg v. Georoia, U.S. Supreme Court decided on July 2, 1976 held not F applicable.\n\n(3) In India under present conditions deterrence through death ptnalty may not be a time-barred punishment in some frightful areas of barbarous. murder.\n\nIlluslratively the court has mentioned that the brutal features of the criine and the hapless and helpless state of the victim steel the heart of the law to impose the sterner senten~. [180 A-B]\n\nEdiga Annam1na v. State of A.P., [1974] 4 S.C.C. 443 explained.\n\n( 4) The la\\!;· is thus harsh and humane and when faced with arguments about the so.:1ai invalidity of the death penalty the personal predilections of the judge n1ust bow to the raw.\n\nThe Bench with all its will to break through is 't; ound by a jurisdictional servitude.\n\nThis fetter is that if there is no legal ground for the alleged grievances the court cannot grant relief.\n\nThe court enters a province of \"powerless power' 1 and finds itself in a quandary between codified law and progressive thought.\n\nThe latter beckons, but the former binds.\n\n[180 B, 177 F-G]\n\n(5) l:Iearing i~ obligatory at the sentencing stage under the new Criminal Procedure Code.\n\nThe humanist principle of individualising punishment to suit the person and his circumstances is best served by hearing the culprit even on the nature and quantum of tho penalty to be imposed. [180 Fl\n\n~ '\n\n(6) The heinousness of the crime is a relevant factor in the choice of the sentence.\n\nThe circumstances of the crime, especially social pressures \\vhich induce the crime 1; vhich may be epitomised as \"a just sentence in an unjust\n\n--- society\" are another considerations. The criminal. not the crime, must figure prominently ir. shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.\n\nSombre sentencing is the Fifth Act in the tragedy of a murder trial and for the judges of the Supreme Court, assumes a grim seriousness and poignant gravity.\n\nThe Penal Code does not give: the judge a free hand where B\n\nn1urdcr has been n1adc out.\n\nThe choice is painfully-not quite scientifically though-li1nitcd. to but two alternativeG. [173 P, 180 A-C]\n\n<Jbserration : [Sentencing under the Indian scheme is not yet realistically forward looking nor correctionally flexible, but Parliament in its wisdom n1ay examine this inadequacy].\n\nCRIMINAL APPELLATE JURISDICTION : Review Petition No. 2 of C 1977.\n\n(Petition for review of this Court's order dated 22-9-1976 in Cr!.\n\nM.P. Nos. 1567, 1600-1601/76). .\n\nSita/ A. K. Dhar, for the petitioner.\n\nR. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-If 'survival after death' may aptly describe any litigative phenomenon, the present review proceeding may well qualify for that quaint claim. The relief of. review \"elates to the death penalty imposed npon the petitioner by the trial court, confirmed in appeal, and dismissed even at the stage of special leave by this Court.\n\nIn the ordinary course, judicial finality, has thus been affixed on the capital sentence so awarded although Presidential clemency, which has been, sought and negatived, may still be open unµer Article 72 of Constitution.\n\nMercy, like divinity, is amenable to unending exercise but in this mundane matter it is for the Head of State to act and not for the apex Court.\n\nSombre sentencing is the Fifth Act in the tragedy of a murder trial and, for the Judges of the Supreme Court, aswmes a grim seriousness and poignant gravity since the petitioner's final appeal for judicial commutation, if rejected, may perhaps prove imminently fatal to his life. Even so, when we chronicle the events connected with the judicial proceedings in this Conrt it will be realised that our review power has repeatedly, been invoked in vain and naturally a further exercise of the same power must be justified by the compelling pressure ot fresh circumstances within the limits of the law.\n\nThe nature of. the judicial process, even at the tallest tower; is such that, to use Gardozo's elegant expressions, 'a jqdge even when he is free, is still not wholly . free; he is not to innovate at pleasure; he is not a knight-errant, roaming at will in pnrsuit of his own ideal of beanty or of goodness; he is to draw inspiration from consecrated principles'. Where the Jndge's values and those prevailing in society clash, the judge must, in theory, give way to the 'objective right'.\n\nA The focus, therefore; must turn on the existence of grounds ot\n\nmanifest miscarriage of justice unavailable on the earlier occasions.\n\nBefore that, a brief reference may be made to the 'criminal' facts.\n\nA treacherous murder of a tender school-boy by the petitioner, the circumstances of which were so heartless and heinous, terminated condiguly at the trial court and the High Court; the extreme penalt)l having been visited on the offender for his horrendous killing.\n\nThis Court refused special leave to appeal, drawing the dark curtain on the criminal proceedings.\n\nThe petitioner struggled to extricate himself from the executioner by a sequence of desperate steps.\n\nOn his behalf, a motion for re-hearing the special leave petition was fruitlessly made to this Court. A review petition was made again to this Court in vain. Yet another, out of the same motive but with modified reliefs, was made and dismissed.\n\nThen followed an application for directions regarding remand of the case to the court of sessions for reconsideration of the sentence in the light of s. 235(3) of the Code of Criminal Procedure, 1973.\n\nDismissal of this proceeding did not deter the petitioner from persisting in moving this Court. That is how the present review petition has been put in on his behalf by his\n\nfather.\n\nMercy petitions to the President punctuated the court proceedings but they too were turned down.\n\nThe convict, nevertheless, clung on and, as stated earlier, his pathetic persistence in the plea for commutation has been pressed before us by counsel on two scores.\n\nHe has urged that a decision of this Court in Santa Singh v. State of Punjab(') of which he was not aware at the earlier stages entitles him to a remand to the Sessions Court for reconsideration of the sentence of death.\n\nSecondly, he has also pressed upon us personal and social circumstances which have received jndicial approval as justifying the imposition of the lesser sentence of life imprisonmnt even where the offence of murder has been made out.\n\nIn the ordinary course, the supplicant's forensic battle for life must be repelled by us since this Court has refused leave, rejected review petitions and denied reconsideration.\n\nEven so, realising that by this prolonging proceeding he is longing for dear life and clutching at legal straws, we have desisted from a dramatic rejection of the petition out- P, ght, anxious to set if there be some tenable ground which reasonably warrants judicial interdicts to halt the hangman's halter.\n\nWe were willing to strain, within permissible limits, to blend leniency with legality. 'The last breath' is the last hold of the law on the Jiving to do justice and at that point judges, while hating the crime, do not hate the man who committed it, such being the humanism of penal justice. Circuit Judge Christmas Humphreys told the B.B.C. Reporter recently that a judge looks \"at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself'. In the context of Karuna and punishment for Karma the same Judge said:\n\n(I) Criminal Appeal No. 230of1976 decided on 17-8-76.\n\n~-·\n\n\"The two things are not incompatible.\n\nYou do A punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful.\n\nYou feel with him; that is what compassion means.\"\n\n(The Listener, d/25.11.1976, P. 692)\n\nBut if the harsh frontiers of the criminal are clearly drawn, to travel beyond is out of bounds. for the court.\n\nThe focus of counsel's first submission was turned on the compassion of the Code of Criminal Procedure, 1972 which obligates the court, under section 235, to hear the convict on the question of sentence.\n\nThe provision is salutary although its 11pplication to the present case is moot, in. the light of section 484 of the Code.\n\nWitlfout pausing to decide wl1ether the new Code applies, we have extended to the petitioners the benefit of the benignant provision and allowed his counsel to present the circumstances he relies on to activate our commiserative jurisdiction.\n\nlt is true that the New Code provides many additional facilities for persons accused of crim~, the paramount idea being to avoid an innocent man being mistakenly found guilty or punished disproportionately.\n\nIn the present case, the conviction has become conclusive and. only the question of sentence is being argued for extenuating consideration.\n\nEven so, sometimes one is led to wonder whether the words of Learned Hand have some relevance to the Indian system.\n\nThe learned Judge said of the American system :\n\n\"Under our criminal Procedure, the accused has every advantage.\n\nWhile the prosecution is held rigidly to the charge, the accused need not disclose the barest outline of his defence.\n\nHe is immune from questioning or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of anyone of the 12 Jurers.\n\nOur procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What w~\n\nneed to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime\".\n\nWe advert to this aspect only to emphasize a sense of perspective in the judiciary when applying the protective procedural provisions of the Code.\n\nSentencing under the Indian scheme, is not yet realistically forward-looking nor correctionally flexible but Parliament in its wisdom, may examine this inadequacy.\n\nThe penalty of death is an irrevocable process and naturally our pensive thought was turned to the moral-jnral aspects of the utility and futility of this dmdly sanction of State a_gainst citizen of hanging a human being into a cold oadaver.\n\nThe miscellany of ideologicalociological-jural considerations, although not pertinent within the\n\nnarrow horizon of a. court of law, has. a fascinating and portentous significance when we remind ourselves that the Supreme Court goes beyond chopping little .Jaw into spacious jurisprudence on great occasions and our Penal Code is itself under review before Parliament.\n\nThis prolegomenon to the principles of capital sentence is our alibi for a brief divagation into the basics of infliction of death as a weapon of extinction society uses against its terribly deviant members as beyond deterrence.\n\nIs the death penalty a purposeful punitive strategy or legitimate legal weapon, viewed against the advanced penological goals of reformation, deterrence and social defence? Why is death terrifying and what are the objects of punishment served by its infliction ? .\n\nC The. literature on doing ju'stice at the sentencing stage is profound and proliferatin_g and penological controversy on death penalty has led to a Great Divj_e among sociologists, jurists and spiritualists. To go eggregiously wrong on punishment is to commit the 'crime' of sentence, r'\" and, naturally, since taking the life of the prisoner neither prevents him nor reforms him (for he is no more), theorie's supporting capital punishment prove self-defeating.\n\nMoreover, the irreversible step of D extinguishing the offender's life leave society with no opportunity to retrieve him if 'the conviction and punishment be found later to be founded on . flawsome evidence' or the sentence is discovered to be induced by some phoney aggravation, except the poor consolation of posthumous rehabilitation as ha's been done in a few other countries for which there is no procedure in our system.\n\nMay be, these are campaign points of abolitionists against capital sentence.\n\nEnvisioned from another fundamentally different angle, is the dread of death penalty a deterrant? Socrates would not recant, Jesus would not plead, St. Joan would not deny-with the cup of poison, bleeding crucifixion and burning 'stakes starting them in the face as punishment.\n\nWhy, Higher Truth, acting through its inspired agents, taunts human law; for, then the body gives little purchase over the soul, as Gandhiji demonstrated by defiance of British-Indian 'justice'.\n\nAnd, more dramatically yet dimly, psychic, electronic and medical explorations, scientifically conducted, are reportedly revealing through fascinating flashes of research and recording and extraordinary but tested investigations into rebirth, that death is only discarnation, not utter dissolution, that after 'death' we survive and act in a demonstrable, subtle dimension of existence. No longer is this thesis projected as faith but sought to be proved as fact.\n\nIf, in the not distant G future, the greatest of all man's fears-fear of death-is dispelled by the finding of noetic science proving that you live after 'death' and can communicate with the 'living', that the confusion between discarnation and death can be scientifically explored and cleared, a revolution in the penological programmes of society would have dawned.\n\nThe trans-physical human future, as sciences unravel, may make our current penal strategies obsolescent.\n\nAt Court, current criminal law binds us willy-nilly and we have to abandon the subject suggestively.\n\nThe basic issue 'What is death ?', may engage us psycho-crimino· logically, although a wee-bit digressively for a moment, to assess the\n\nSHIV MOHAN SINGH v. STATE (DELHI AoMN.) (Krishna Iyer, J.) I 77\n\nsocial impact of the death penalty.\n\nBy and large, humankind holds fast to the belief that death is a total extinction of dear life and views its arrival through the executioner's rope or electric chair or firing squad with awesome horror.\n\nWith poetic pragmatism, Shakespeare expressed this common feeling when he referred, in tb.e context of death, to 'that undiscovered country from whose iourn no traveller returns'.\n\nThere are others, however--and among them are ancient seers, modern-divines and several psychic researchers i.n institutes who regard as super-sensory.\n\nReality or scientific vrity that there is life after life, that the phenonmenon of death may even have a liberating effect, that the -grosser existence is in corporeal life and the subtler in the incorporeal state and life-death-life is a continuum.\n\nOur sages assert with vision that 'dcathbound littleness is not all we are' and great death as integral to the life process.\n\nMany scientists are investigating what happens after death and lifting the dark veil with luminous evidence of ethenic survival.\n\nEven so, most men-'even pious ones-are earthy materialists, and, in our work-a-day world, fake it an axiom that it is given to us to live but once.\n\nThe law, a people's practical scheme, which operates on the behavioral patterns and psyche of the humdrum run of mortals, steers clear of super-scientific and mystic maybes and grunds itself on the hard-headed realist's view that the sentence of death is the maximum punishment as it puts the criminal out of material existence.\n\nIndeed, it. is a fiercely final step for mortals and; in a sense, abhorrent because survival after death, though slowly, murkily, falteringly, gaining scientific, ground, is still suspect and has not made headway into the thoughtways of jurisprudes and legislators, rationalists and practical people. If after-life and re-birth are verities, as many noetic scientists claim to prove beyond easy dismissal both penology and criminology will undergo re-evaluation.\n\nFor, as punishment 'death penalty' will cease to be terrible and criminologyically, crime will be inescapably punished in this life or on re-birth.\n\nThese futuristic projections are of no practical consequence now.\n\nJurispmdence has to react to and build upon established belief-systems, branches of human knowledge and behavioral sciences.\n\nBut these problems are more Tomorrow's challenge to philosophers, spiritualists, social and mental scientists, fundamental thinkers, parliamentarians and penal reformers.\n\nThe B, ench, with all its will to break-through, is bound by a jurisdictional servitude.\n\nThis fetter s, as stressed by Government counsel, that if there is no legal ground _er the alleged grievance, the Court cannot grant relief.\n\nThe Court enters a province of 'powerless power' and finds itself .in a quandary between codified law and progressive thought.\n\nThe latter . beckons, but the former binds.\n\nWe divagated into the import and portent of life and after-life on capital sentence not because these distant, dubious searches have immediate legal standing but merely to show how we may be swept\n\noff our feet if we chase 'tomorrow' theories, especially since law in H court is hard realism.\n\nTo-day for the condemned prisoner, the day of execution is the dreadful last day of life.\n\nEven so, critics like Becearia have said 'the death penalty cannot be useful, because of\n\nthe example of barbarity it gives men. . . . It seems to me absurd that laws which are an expression of the public will, which detest and punish homicide, should themselves commit it'. On the other hand, the deterrent and retributive theorists prevail amongst penologists and lextalionis continues in sublimated form Orthodox jurists have shared the view of Genesis 9: 6: \"Whosoever sheddeth a man's blood, so shall his blood be shed.\" To epitomize, in this blurred area of criminal jurisprudence we are lost in the conflict between ideals, theories and research findings and the subject remains so fluid that legislative decision-making and jurisprudential debate must crystallize into a Code before the Court can activise these norms or incorporate them as judge-made l!!w.\n\nThe plea of counsel against death penalty has topical flavour and echoes the recent American debate. To abbreviate the discussion, we content ourselves with adverting to the judicial divisio'! of opinion in the Supreme Court of U.S.A. in Gregg v. Georgia (decided on July 2, 1976) wherein Mr. Justice Brennan, in his dissenting judgment, drove home his point thus :\n\n\"I emphasie only that foremost among the 'moral concepts' recognized in our cases and inherent in the clause is the primary moral principle that the state, even as it punishes, must treat its citiz~_!I~ in a manner consistent with their intrinsic worth as human beings a pnnis.hment must not be so severe as to be degrading to human dignity.\n\nA judicial determination whether the punishment of death comports with human dignity is. therefore not only permitted bnt compelled by the clause.\n\nDeath is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.\"\n\nMr. Justice Marshall added the weight of his opinion :\n\n\"The wo . purposes that . sustain the death penalty as non-excessive m the court's view are general deterrence and retribution.\n\nThe Enrlich study, in short, is of little, if any assistance in assessing the deterrent impact of the death penalty.\n\nThe evidence I reviewed in Furman remains convincing, in my view, that 'capital punishment is not necessary as a deterrent to crime in onr society'.\n\nThe justification for the death penalty must be found elsewhere.\n\nH The other principal purpose said to be served by the death pena!ty is retribution.\n\nThe notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my brothers Stewart, Powell,·\n\nand Stevens, and that of my brother White in Roberts v.\n\nLouisiam. It is thh; notion that I find to be the most disturbiug aspect of to-day's unfortunate decision.\n\nThe foregoing contentions-that society's expression of moral ontrage through the imposition of the death penalty pre-empts the citizenry from taking .the law into its ()Wn\n\nhands and reinforces moral values-are not retributive in the purest sense.\n\nThey are essentially utilitarian in that they portray tjie death penalty as valuable because of its beneficial results.\n\nThese justifications for the de_; ith penalty are inadequate because the penalty is, quite clearly I think not necessary to the accomplishment of those res_ults.\n\nThere remains for consideration, however, whar might be termed the purely retributive justification for the death penalty-that the death penlty is appropriate, not because of ifs beneficial effect on society, but because the taking of the murderer's life is itself morally good. Some of the language of the plurality's opinion appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment.\"\n\nThese American views of eminent judges deserve deferential notice but do not aid us in the decision of this Indian Appeal which relates to implement!ltion of a valid sentence since, under the Indian Code, death penalty. has been ruled to be constitutional.\n\nThe law having sanctioned it and this Court having refused special leave against conviction and sentence. in this very case, it is a vanquished cause to argue for a vague illegality vitiating capital sentence as such. To tbat extent the pall must fall.\n\nCounsel for the. petitioner brought to our notice a number of recent decisions of this Court where judges have expressed themselves in favour of a sentcncill.g policy of life term as against death penalty.\n\nIn Ediga Annamma (1974 (4) SCC 443) the Court pointed to tli!e\n\nretreat of death penalty as part of punitive strategy in many countries of the world.\n\nCounsel cited rulings of this Court to show that where the murderer too young or too old or the haunting horror of being hanged has been hovering over his head for a few years or the condemned prisoner .is the sole bread-winner of the whole family, the lesser sentence of life imprisonment should be the judicial choice.\n\nHe brought to our notice the social and personal circumstances in the present case revant to the above approach.\n\nUndoubtedly, the prisoner was a young man around 21 /22 years when he committed the crime.\n\nHe claims that his young wife will be helpless, that upon him depends t)1e family for livelihood, that his mother is blind, that all of them will have a miserable, indigent life if the petitioner were to be extinguished from earthly existence. He also emphasised that since 1974 the sentence of death had been shattering his morale. It must, however, be pointed out that counsel for the State refuted some of the more important of these grounds and went to the extent of even stating that the petitioner's wifg had remarried.\n\nIn Ediga Annamma this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally clearly highlighted that in India under present conditions deterrence through death penalty may not be. a time-barred punisb![lent in some frightful areas of barbarous murder.\n\nIllustratively, the Court has mentioned that the brutal features of the crime and the hapless and helpless state of the victim steel the heart of the Jaw to impdse the sterner sentence.\n\nThe Jaw is thus harsh and humane and when faced with arguments. about the social invalidity of the death penalty the personal predilections of the Judge must bow to the law as by this Court declared, adopting the noble words of Justice Stenley Mask of California uttered in a death sentence case : \"As Judge, I am bound to the Jaw as I find it to be and not as fervently wish it to be''.\n\n(The Yale Law Journal No. 6, p. 1138).\n\nA learned writer on the Indian Constitution has observed :-\n\n\" .... judges must enforce the laws, whatever they be, and decide according to the best of their lights; but the laws are not always jnst, and the lights are not always luminous.\n\nNor, again are judicial methods always adequate to secure justice.\" We have given deep consideration to the many circumstances pressed by the petitioner's counsel to review our earlier orders dismissing review and refosing special leave to appeal.\n\nWhile we agree that Judges, like others are fallible and their findings are not 'untouchably' sacrosanct, we disagree that on an overall view of the many circumstances of the crime and the criminal in the present case, the sentence of death should be departed from.\n\nRecognized grounds such as manifest injustice induced by obvious curial error or oversight, or new and important matter not >easonably within the ken or reach of the party seeking review on the prior occasion, may warrant interference, to further justice.\n\nThe scenario of events in this case rules out the arguments urged by counsel. Hear- . ing is obli\"'atory at the sentencing stage under the New Criminal\n\nProcedure Code.\n\nThe humanist principle of individualising punishment to suit the person and his circumstances is best served by hearing is obligatory at the sentencing stage under the New Criminal imposed.\n\nIn the present case, the date of commen; ement of the trial might rule out the applicability of the new Code. Moreover, he bad already come to this Court seeking special leave to appeal at a time when the new Code was in force.\n\nHe did not urge the ground of denial of opportunity to be heard at the sentencing stage. Assuming indulgently in his favour that he came to know the correct law on this branch only after the decision of this Court in Shallt Singh\n\n(Supra), his earlier application for review was disposed of after that ruling was rendered by this Court.\n\nEven then the present grievance of non-hearing was not pressed.\n\nHe has missed the bns and his contention based on the new Code is of doubtful substance.\n\nEven so, having regard to the compassion that must temper the rigour _of rigid\n\n~··\n\nrules we have allowed counsel a fresh opportunity to put forward A before us, after taking instructiolls from his client, ?II the circumstances the Court should consider by way of ameliorative gesture and reduction of th~ death penalty to a life term incaraceration. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, especially social pressures which induce the clime which we may epitomise as 'a just sentence in an unjust society' are another consideration. The criminal, not B the crime, must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.\n\nThe Penal Code does not give the Judge a free hand where murder has been made out.\n\nThe choice is painfully-not quite scientifically though-limited to but two alternatives. We have given reasons why, as the law now stands, we decline to de1j1olish the death sentence.\n\nWe, therefore, C dismiss the review petition.\n\nThe judicial fate notwithstanding, there are some circumstances suggestive of a claim to Presidential clemency. The two jurisdictions are different, although some considerations may overlap.\n\nWe partiularly mention this because it may_ still be open to the petitioner to mvoke the mercy power of the President and his success or failure in D\n\ntht endeavour may _decide the arrival or othe1wise of his doomsday.\n\nWith these observatlons we leave the 'death penalty' judicially 'untouched'. -\n\ns. R.\n\nReview P'tition dismissed.", "total_entities": 51, "entities": [{"text": "SHIV MOHAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "SHIV MOHAN SINGH", "offset_not_found": false}}, {"text": "STATE (DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 21, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "STATE (DELHI ADMINISTRATION)", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 68, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "Y.V. 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[173 P, 180 A-C]\n\n<Jbserration : [Sentencing under the Indian scheme is not yet realistically forward looking nor correctionally flexible, but Parliament in its wisdom n1ay examine this inadequacy]."}}, {"text": "A. K. Dhar", "label": "LAWYER", "start_char": 4569, "end_char": 4579, "source": "ner", "metadata": {"in_sentence": "Sita/ A. K. Dhar, for the petitioner."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4602, "end_char": 4616, "source": "ner", "metadata": {"in_sentence": "R. N. Sachthey, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 4683, "end_char": 4695, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-If 'survival after death' may aptly describe any litigative phenomenon, the present review proceeding may well qualify for that quaint claim.", "canonical_name": "KRISHNA IYER"}}, {"text": "Article 72", "label": "PROVISION", "start_char": 5221, "end_char": 5231, "source": "regex", "metadata": {"statute": null}}, {"text": "apex Court", "label": "COURT", "start_char": 5383, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "Mercy, like divinity, is amenable to unending exercise but in this mundane matter it is for the Head of State to act and not for the apex Court."}}, {"text": "Sombre sentencing is the Fifth Act", "label": "STATUTE", "start_char": 5396, "end_char": 5430, "source": "regex", "metadata": {}}, {"text": "Gardozo", "label": "OTHER_PERSON", "start_char": 6082, "end_char": 6089, "source": "ner", "metadata": {"in_sentence": "the judicial process, even at the tallest tower; is such that, to use Gardozo's elegant expressions, 'a jqdge even when he is free, is still not wholly ."}}, {"text": "s. 235(3)", "label": "PROVISION", "start_char": 7557, "end_char": 7566, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 7574, "end_char": 7606, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Christmas Humphreys", "label": "JUDGE", "start_char": 9308, "end_char": 9327, "source": "ner", "metadata": {"in_sentence": "Circuit Judge Christmas Humphreys told the B.B.C. Reporter recently that a judge looks \"at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself'."}}, {"text": "17-8-76", "label": "DATE", "start_char": 9678, "end_char": 9685, "source": "ner", "metadata": {"in_sentence": "230of1976 decided on 17-8-76."}}, {"text": "Code of Criminal Procedure, 1972", "label": "STATUTE", "start_char": 10186, "end_char": 10218, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 235", "label": "PROVISION", "start_char": 10252, "end_char": 10263, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1972", "statute": "the Code of Criminal Procedure, 1972"}}, {"text": "section 484", "label": "PROVISION", "start_char": 10413, "end_char": 10424, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1972", "statute": "the Code of Criminal Procedure, 1972"}}, {"text": "Jaw into spacious jurisprudence on great occasions and our Penal Code", "label": "STATUTE", "start_char": 12592, "end_char": 12661, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Socrates", "label": "OTHER_PERSON", "start_char": 14270, "end_char": 14278, "source": "ner", "metadata": {"in_sentence": "Socrates would not recant, Jesus would not plead, St. Joan would not deny-with the cup of poison, bleeding crucifixion and burning 'stakes starting them in the face as punishment."}}, {"text": "Jesus", "label": "OTHER_PERSON", "start_char": 14297, "end_char": 14302, "source": "ner", "metadata": {"in_sentence": "Socrates would not recant, Jesus would not plead, St. Joan would not deny-with the cup of poison, bleeding crucifixion and burning 'stakes starting them in the face as punishment."}}, {"text": "Joan", "label": "OTHER_PERSON", "start_char": 14324, "end_char": 14328, "source": "ner", "metadata": {"in_sentence": "Socrates would not recant, Jesus would not plead, St. Joan would not deny-with the cup of poison, bleeding crucifixion and burning 'stakes starting them in the face as punishment."}}, {"text": "Gandhiji", "label": "OTHER_PERSON", "start_char": 14583, "end_char": 14591, "source": "ner", "metadata": {"in_sentence": "Why, Higher Truth, acting through its inspired agents, taunts human law; for, then the body gives little purchase over the soul, as Gandhiji demonstrated by defiance of British-Indian 'justice'."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 15866, "end_char": 15878, "source": "ner", "metadata": {"in_sentence": "Krishna Iyer, J.) I 77\n\nsocial impact of the death penalty.", "canonical_name": "KRISHNA IYER"}}, {"text": "Shakespeare", "label": "OTHER_PERSON", "start_char": 16155, "end_char": 16166, "source": "ner", "metadata": {"in_sentence": "With poetic pragmatism, Shakespeare expressed this common feeling when he referred, in tb.e context of death, to 'that undiscovered country from whose iourn no traveller returns'."}}, {"text": "Becearia", "label": "WITNESS", "start_char": 19241, "end_char": 19249, "source": "ner", "metadata": {"in_sentence": "Even so, critics like Becearia have said 'the death penalty cannot be useful, because of\n\nthe example of barbarity it gives men. . . ."}}, {"text": "Supreme Court of U.S.A.", "label": "COURT", "start_char": 20297, "end_char": 20320, "source": "ner", "metadata": {"in_sentence": "of opinion in the Supreme Court of U.S.A. in Gregg v. Georgia (decided on July 2, 1976) wherein Mr. Justice Brennan, in his dissenting judgment, drove home his point thus :\n\n\"I emphasie only that foremost among the 'moral concepts' recognized in our cases and inherent in the clause is the primary moral principle that the state, even as it punishes, must treat its citiz~_!I~ in a manner consistent with their intrinsic worth as human beings a pnnis.hment must not be so severe as to be degrading to human dignity."}}, {"text": "Brennan", "label": "JUDGE", "start_char": 20387, "end_char": 20394, "source": "ner", "metadata": {"in_sentence": "of opinion in the Supreme Court of U.S.A. in Gregg v. Georgia (decided on July 2, 1976) wherein Mr. Justice Brennan, in his dissenting judgment, drove home his point thus :\n\n\"I emphasie only that foremost among the 'moral concepts' recognized in our cases and inherent in the clause is the primary moral principle that the state, even as it punishes, must treat its citiz~_!I~ in a manner consistent with their intrinsic worth as human beings a pnnis.hment must not be so severe as to be degrading to human dignity."}}, {"text": "Marshall", "label": "JUDGE", "start_char": 21350, "end_char": 21358, "source": "ner", "metadata": {"in_sentence": "Mr. Justice Marshall added the weight of his opinion :\n\n\"The wo ."}}, {"text": "Furman", "label": "GPE", "start_char": 21668, "end_char": 21674, "source": "ner", "metadata": {"in_sentence": "The evidence I reviewed in Furman remains convincing, in my view, that 'capital punishment is not necessary as a deterrent to crime in onr society'."}}, {"text": "White", "label": "OTHER_PERSON", "start_char": 22132, "end_char": 22137, "source": "ner", "metadata": {"in_sentence": "The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my brothers Stewart, Powell,·\n\nand Stevens, and that of my brother White in Roberts v.\n\nLouisiam."}}, {"text": "Ediga Annamma", "label": "OTHER_PERSON", "start_char": 25168, "end_char": 25181, "source": "ner", "metadata": {"in_sentence": "In Ediga Annamma this Court, while noticing the social and personal circumstances possessing an extenuating impact, has equally clearly highlighted that in India under present conditions deterrence through death penalty may not be."}}, {"text": "Stenley Mask", "label": "JUDGE", "start_char": 25893, "end_char": 25905, "source": "ner", "metadata": {"in_sentence": "about the social invalidity of the death penalty the personal predilections of the Judge must bow to the law as by this Court declared, adopting the noble words of Justice Stenley Mask of California uttered in a death sentence case : \"As Judge, I am bound to the Jaw as I find it to be and not as fervently wish it to be''."}}, {"text": "Shallt Singh", "label": "OTHER_PERSON", "start_char": 27907, "end_char": 27919, "source": "ner", "metadata": {"in_sentence": "Assuming indulgently in his favour that he came to know the correct law on this branch only after the decision of this Court in Shallt Singh\n\n(Supra), his earlier application for review was disposed of after that ruling was rendered by this Court."}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 29000, "end_char": 29010, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1977_3_182_194_EN", "year": 1977, "text": "• F\n\nBATA SHOE CO.\n\nCITY OF JABALPUR CORPORATION\n\nMarch 11, 1977\n\n[Y'. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.J\n\nCentral Pl'ovinces & Berar Municipalities Act, 1922 s. 84(3 )-Scope of- Act sefj.contained Code-\"\".Obiections regarding assessment, levy etc. of octroi duty shall not be taken in any manner or by any other authority than is provided in the Act\"-Suit in a Civil Court-If lies.\n\nThe (entrai Provinces and Berar Municipalities Act, 1922, empowers a municipality to assess and recover octroi duty on goods brought within the municipal I imits for sale. consumption and use therein.\n\nUnder the Act an appeal against assessment or levy or refusal to refund any tax lies to a desig nated official.\n\nA person aggrieved by the decisic1n. of the appellate authority has a right to apply to the State Government for revision.\n\nThe. Act also provides for reference to the High Court on questions like liability to assessment or principles of assessment and so on.\n\nSection 84(3) lays down that \"no objection shall be taken to any valuation. assessment or levy nor shall the liability of any person to be taxed or assessed be questioned in any other n1anner or by any other authority than is provided in the. Act.\" Rule 14(b) of the Rules framed under the Act provides that any person importing or bringing any dutiable articles within the octroi limits of a municipality without paying ti.e duty or without giving a declaration to the octroi Moharrir, shall be liable to pay double the duty and shall in: addition be liable to be prosecuted for evasion uf duty.\n\nThe plaintiffs imported within the municipal limits for sale in their retail shops articles manufactured by' them in their faCtories situated at different places in the country.\n\nThey paid the octroi levied by the municipality at a certain tate.\n\nBut sometime later the municipality reopened and revised the assessment and charged octroi at a different rate. It also levied double the duty by way of penalty on the ground that the plaintiffs had intentionally evaded pay1nnt of duty on the goods.\n\nThe appellate authority modified the decision of the municipality but upheld the assessment of double duty. The plaintiffs' revj5ion application was rejected by the Board of Revenue.\n\nThe plaintiffs pai({ the duty and penalty under protest and filed a suit for rtecovery of the amount on the ground that the municipality was not entitled to recover the amount of octroi duty and penalty.\n\nOverruling the defendant municipality's objection as regards the civil court's jurisdiction to entertain the suit the trial court decreed the suit.\n\nOn appeal. the High Court held that the dcfend<ints were entitled to revise and reopen the assessment and that the reassessment of duty fixed in appeal by the appellate authority could not be questioned by the plaintiffs in a civil court.\n\nIn appeal it was contended in this Court by the plaintiffs that s. 84(3) mav bar a suit to challenge an act which was within the purview of the Act, but it could not bar a suit to challenge an act which was outside the Act or the Rules and since in this case the defendant had no power to revise or reopen the assessment, its action was wholly lacking in jurisdiction and so the suit was competent.\n\nDismissing the, appeal,\n\nHELD: Since s. 84(3) expressly p<ohibits a challenge to valuation,\n\nasessn1ent or le\\'Y \"in any other mb.nner~ ....... .... than is provided 1n this Act\" and since the Act has devised its own special machinery for inquiring\n\n- into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order\n\nBATA SHOE co. v. JABALPUR CORP. (Clwndrachud, !.) 18 3\n\nof assessment to octroi duty.\n\nSimilarly the sub-section excludes expressly the A poo.1cr of \"any other authority than is provided in this Act\" to entertain an objection to any valuation, assessment or levy of octroi.\n\nThis part of the provision is in the nature of ouster of jurisdiction of civil courts. at least by necessary impi1cation, to entertain an objection to any valuation, assessment or levy. [187 A]\n\n1. Two of the propositions bearing on the construction of statutes which expressly or by necessary implication bar the jurisdiction of civil courts stated iro Dlwlabhai & Ors. v. The State of Madhya Pradesh [1968] 3 SCR 662 and B which are reh::Yant for the purposes of this case are : (i) where the .statute gives finality to the orders of special tribunals the civil court's jurisdiction must be held to be excluded if there is an adequate remedy to do what the .civil courts \\vould normally do in a suit.\n\nSuch provision, however, does not exclude cases when~ the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity \\Vith the fundamental principles of judicial procedure, (ii) questions of the correctness of\n\nthe assessment, apart from its constitutionality, 'are for the decision of the C authorities and a civil suit! does not lie if' the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.\n\nIn either case the scheme of the particular Act must be examined because it is a relevant enquiry. [189 D-F]\n\n(a) Jn the instant case, the various provisions of the Act show in the first place thut the 1nunicipality possesses the right and the power to assess and recover octroi duty and double duty on goods brought \\Vithin the 1nunicipal limits for sale, consumption or use therein. The circumstance that the rnunici- D lity nlight have acted in excess ofi or irregularly in the exercise of that power could not support the conclusion that the assessment or recovery of the tax \\Vas without jurisdiction. If the appropriate authority, while exercising its jurisdk:tion and powers under the relevant-provisions o~ the Act, holds erroneously that an assessment a]ready 1nade can be corrected or that an assessee is liable toi pay double duty, it cannot be said that the decision of the authority is without jurisdiction. [192 E-F]\n\n(b) Both the Act and the Rules contain provisions enabling the aggrieved E party to challenge an illegal assessment or levy of double duty.\n\nBy reasOn of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84 (3) of the Act. [193 Hl\n\n(c) Levy of double duty, though not justified by the terms of r. 14(b) goes to the correctness of the levy and not to the jurisdiction of the assessing authority.\n\nAssuming that neither of the two eventualities mentioned in r. 14 (b) occurred and, thcn::fure, lherc was no justification for imposing double duty. the error F could be corrected only in the manner !1rovided in the Act and by the authority prescribed therein. The ren1edy by \\Vay of a suit is barred. [193 A-Bl\n\n(d) The suit for refund of double duty or revised duty is not maintainable because in tiie first 9lace the assessment was made by the authority duly empo\\vered to 110 so and secondly the authority was acting under the Act while revising the r,:)sessment and imposing double duty.\n\nIt had the power to assi::ss and levy double duty.\n\nIf it exceeded that power it acted \\\\TOngly, but not without jurisdic1ion. [193 C-D] G\n\n(e) It 1s not correct to say that the Act protects correct assessments only vnd that every incorrect or wrong order of assessment can be challenged by & suit th0ugh the statute gives it finality and provides full and effective remedies to challenge it.\n\nExcept in matters of constitutionality and the like, a self- -contained Code must have priority over the common means of vindicating rights.\n\nIf the appropriate authority, while exercising its jurisdiction and power under the releyant rirovisions of the Act. comes to an erroneous conclusion it cannot be said that the decision is without jurisdiction. [193 F--G] H\n\nDlmlabhai and Others v. The State of Madhya Pradesh [1968] 3 SCR 662 \"'1fid Kam/a !vflils Ltd. v. State of Bombay [1966] 1 SCR 64 applied.\n\n13-240SCI/77\n\n18.4\n\nV• . '\n\nBharat K(lla Bhandar Ltd. v. Municipal Con1111ittee, Dharnangavn, [1965] 3 SCR 499, B. M. Lalwni v. Malkapur Municipality, AIR 1970 S.C. 1002 and\n\nFinn Seth Radka -Kishan v. Administrator, Municipal Co111nzittee, Ludhia.na [1954] 2 SCR 273, 284 distinguished.\n\nWolverlzanipton New Waterworks Company v. Hawkerford [1859] 6 C. B. (N.S.) 336. Slcretary of State v. Mask & Company, 67 I.R. 222, Naville v.\n\nLondon \"L'xptess\" Newspaper, Limited, [1919] A.C. 368, Bengal ltnmunity Co. Ltd. v. :$tale of Bihar •. [19551 2 SCR 603 and Firm and Illuri Subbaya chetty & Sons. v. Ille State of Andhra Pradesh, [19641 I SCR 752 referred to.\n\n(f) The instant case does not fall within the propositions in Dhulabhai's case because s. 84(3) not merely gives finality to the orders passed by the special tribunal but expressly provides that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. [194 Ill\n\n(g) In tile instant case, the plaintiffs availed themselves of the remedies provided under the Act and succeeded to an extent.\n\nHaving exhausted their re~ medies under the Act and having been benefited by the appellate decision, they turned to 1he civil court to claim refund.\n\nThis is impermissible under s. 84(3). [194 F-Gl\n\nC!vrL APPELLATE JURISDICTION : Civil Appeal Nos. 1923-1924 of 1972.'\n\n(From the Judgment and Decree dated 25-10-1957 of the Madhya Pradesh High Court in First Appeal No. 138/52)\n\nA. K. Sen, B. P. M_aheshwari and Suresh Sethi, for the appellant in C.A. No. 1923/72 and respondent in CA No. 1924/72.\n\nD. N. Mukherjee, for the respondent in CA No. 1923/72 and for atJpellant in CA 1924/72.\n\nCHANDRACHUD, J.-These are cross appeals arisin& out of a judgment rendered by the Madhya Prac\\P:sh High Court in First Appeal No. 138 of 1952 modifying the dec:e passed by the First Additional District Judge. Jabalpur in Civil Suit No. 6-B of 1949. It would be convenient to refer to the 'parties as plaintiffs and defendants, plain~ tiffs being the Bata Shoe Co. Ltd. and the defendants being the Corporation for the City of Jabalpur.\n\nPlaintiffs are a limited company having their registered office at Calcutta.\n\nAt the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi.\n\nThe sale's organisation of the plaintiffs is situated at Cl!lcutta, and that organisation sells manufactured articles through the Company's retml shops situated in different parts of India and Pakistan.\n\nThree such retail shops were situated at Jabalpur.\n\nIn respect of the articles which were imported by the retail shops at Jabalpur within the limits of the then Jabalpur Municipal Committee betwen April 1. 1943 and March 31. 1945 the plaintiffs had paid to the Municipal Committee a sum of Rs. 16,528 odd as cotroi duty.\n\nThis duty was assessed by the Municipal Committee on an amount which was 40% less than the retail price of the g0ods which were brought within the municipal limits.\n\nIn the year 1946-4 7 the Municipal Committee decided to reopen and revise the assessment by\n\n•. ' -- •\n\n¥ •\n\nI .llA'fA SHOE co. v. JABALPUR CORP. (Chandrachud, /.) ! 85\n\n, charging the octroi duty on an amount which was only. 6!% less than t.he retail price of the goods.\n\nThe Municipal Convnittee further\n\ndcjded to levy double the duty by way of penalty for the aforesaid pertod on tlie ground that the plaintiffs had intentionally evaded the payment of the duty payable on the goods.\n\nPlaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub- 0\\visional ()fficer, Jabalpur who. by an order dated July 14, 1948 modified tbe ccision of the Municipal Committee by permitting them to charge the octroi duty on an amount which was less by 12t% tha.il the retail price of the goods.\n\nThe Sub~Divisional Officer however upheld the assessment of double duty. . The revision application\n\npreferred by the plaintiffs to the Board of Revenue was rejected on 09tober 4, 1948 on the ground that it was not maintainable.\n\nIn conformity with the appellate order, but under protest, plaintiffs paid to the Municipal Committee a sum of Rs. 21,071-1-3 on August 6, 1948. Defendants demanded a further sum of Rs. 10,604-2-6\n\nalleging that they had overlooked asking for it through mistake.\n\nPlaintiffs paid that amount too on September 22, 1948 under protest.\n\nOn June 20, 1949 they filed a suit against the Municipal Committee for recovery of the total amount of Rs. 31,675-3-9 with interest at 6% per annum on the ground that the defendants were not entitled to recover the amount by way of octroi duty and penalty.\n\nDuring the pendency of the suit the Municipal Committee was succeeded by rhe Corporation for the City of Jabalpur who were substituted as defendant• to the suit.\n\nThe Trial Court decreed the suit to the extent of Rs. 32.629-7-0 calculating the interest at 4 % , holding that the defendants could not charge octroi duty on an amount arrived at by anything less than 40%\n\nfrom the retail sale price, that the recovery of octroi duty by deducting a sum of 12t% only from the retail price was illegal and that the defendants were not justified in recovering double duty by way of penalty since the plaintiffs had not intentionally evaded the payment of proper duty.\n\nDefendants had raised contentions both as regards the jurisdiction of the Civil Court to entertain the suit and as regards limitation but the Trial Court rejected those contentiahs and held that it had jurisdi, tion to entertain the su:it and that it was not barred by !imitation.\n\nIn appeal the High Court held that the defendants were entitled to revise and reopen the assessment and that the recassessment of octroi duty which was ultimately fixed in appeal by the Sub-Divisional Officer could not be questioned by the plaintiffs in the Civil Court.\n\nOn the que.stion of. limittion the. High Court held that applying the special penod of hm1tat10n provided in s. 48 of the Central Provinces and Berar Municipalities Act, 1922 the suit was within limitation as regards the payment made by the plaintiffs on September 22, 1948 but that it was barred by limitation as regards the payment made on August 6,\n\n1948.\n\nThe suit in regard to the amount paid to the Municipal Committee in September 1948 was held to be within limitation on account\n\nof the intervening summer vacation during which the Courts were closed.\n\nAccording to the High Court the exaction of the double duty being beyond the powers of the defendants, the special period of limitation was not attracted and the plaintiffs were therefore entitled to recover the sum paid by way of double duty. In the result the High Court passed a decree in the sum of Rs. 24,103-13-3 which, according to it, represented the double duty wrongly recovered by the defendants from the plaintiffs.\n\nThe High Court has granted to both the parties a certificate to file an appeal to this Court under art. 133 ( l) of the Constitution and both parties being partly aggrieved by the decree of the High Court have filed cross appeals.\n\nThe first question for consideration is whether the civil court has jurisdiction to entertain the suit brought by the plaintiffs.\n\nIt is undisputed that the Municipal Committee had the power under s. 65(1) (e) of the Act of 1922 to impose octroi tax on the goods brought within the Municipal limits for sale, consumption or use therein.\n\nUnder rule 6(b) framed by the Provincial Government in exercise of the powers conferred by ss. 71, 76 aud 85 of that Act, octroi duty was payable on the \"current price of articles\" which is equivalent to the cost price of the articles to the importer plus the cost of carriage and not the price prevailing in the local market.\n\nPrior to 1940, plaintiffs used to submit to the defendants an invoice relating to the imported goods wherein the cost price used to be shown by deducting from the retail price the aggregate amount of expenses amounting to 40%. Defen~\n\ndants later disputed the deduction claimed by the plaintiffs and informed the latter by a letter of May 7, 1940 that octroi duty was leviable on the cost price of the goods as shown in the invoice plus the freight charges.\n\nPlaintiffs accepted that view and started showing in the invoices the cost price of the articles and the freight charges. Defendants used to assess octroi duty on those invoices until the dipute giving rise to the present suit arose during the year 1946-47, when the basis for charging the duty was fixed at 6t% less than the retail price of the goods and the assessments already made were reopened with a view to r.evis!ng them.\n\nSection 83 (I) of the Act of 1922 provides for appeal against the assessment or levy of any tax under the Act to the Deputy Commissioner or to such o'her officer as may be empowered by the Provincial Government in tha: behalf.\n\nSection 84(3) of the Act which bears directly on the question of jurisdiction reads thus :\n\n\"84(3) No objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other au'.hority than is provided in this •\\ct.\"\n\nJt is plain from this sub-section that any valuation, assessment o~ levy and the liab:Jity of any person to be assessed or taxed can be C\\ucst1oned only in the manner prescribed by the Act and by the authonty mn tioned in the Act and in no other manner or by any other authonty.\n\nSince the snb-scction expressly prohibits a challeng~ to a. valuatiO!l,\n\nassessment or levy \"in any other manner .... than 1s provided m this\n\n~· • -- •\n\nAct\" and since the Act has devised its own special machinery for inquiring into and adjudicating upon such challenges, the cmmon remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order of assessment to octroi duty.\n\nSimilarly, the sub-section excludes expressly the power of ·:any other authority than is provided in this Act\". to en'.ertain an objection. to an_y valuation, assessment or levy of octr01.\n\nThis part of the prov1s1on IS in the nature of ouster of the jurisdiction of Civil Courts, at least by necessary implication, to entertain an objection to any valuation!. assessment or levy.\n\nThis is the evident intendment, meamng and 1mpl1cation of the provision.\n\nIn Wolverhampton New Waterworks Company v. Hawkesford(') Willes J. referred to various classes of cases in which the jurisdiction of ordinary courts is excluded, the third class of such cases being \"where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.\" The view of Willes J., that with respect to that class o'. cases the party must adopt the form of remedy given by the statute and no other, was accepted by the Privy Council in Secretary of State\n\nv. Mask & Company(') and by the House of Lords in Neville v.\n\nLondon \"Express\" Newspaper, Limited(').\n\nIn Ma!k & Company's(') case the Privy Council was dealing with the provlS!ons of the Sea Customs Act, 1876 section 186 whereof uave a right of appeal to the person aggrieved by any decision or order pased by the Customs Officers under that Act.\n\nSection 191 further gave the aggrieved person a right to make an application to the Local Government for revision of the appellate decision or order.\n\nThe last paragraph of section 188 provided : \"Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, be final\".\n\nThere was no express exclusion of the civil courts' jurisdiction to entertain a suit challenging an order passed by a Customs Officer but the Judicial Committee, while recognising that the exclusion of the jurisdiction of civil courts was not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied, observed that looking at the last paragraph of section 188 of the Sea Customs Act it was difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts. If a provision merely giving finality to an order could be construed as ousting the civil Court's jurisdiction, s. 84(3) of the Act, which is far more expressive, can legitimately be construed to have the same effect.\n\nIt excludes in terms a challenge to the various things therein mentioned, in any other manner or by any other authority than is provided in the Act.\n\nBut counsel foi; the plaintiffs contends that s. 84(3) cannot oust the civil Court's jurisdiction to entertain the present suit because the defendants have no power at all either under the Act or under the\n\n(I) [18591 6 C.B. (N.S.) 336.\n\n(2) 67 I.A. 222.\n\n(3) [19191 A.C. 368.\n\nRules framed thereunder to reopen or revise an as>essment to octroi duty. An assessment once made is final subject to the remedies which the Act provides to. the aggrieved party and since, according to the\n\nconsel, the reopm?g of assessment is wholly without jurisdiction the smt to challenge 1t 1s competent.\n\nThe argument, in other words, is that s. 84 ( 3) may bar a suit to challenge an act which is within the purview of th~ Act or the Rules but it cannot bar a suit to challenge an act which 1s outside the Act or the Rules and is therefore wholly Jacking in jurisdiction.\n\nIn support of the contention that the civil Court has jurisdiction to entertain the suit plaintiffs rely principally on the decisions of this Court in Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon('), B. M. Lakhani. v. Malkapur Municipality(') and Dlmlabhai and others v. The State of Madhya Pradesh(\").\n\nThe appellants in Bharat Kala Bhandar's(') case filed a suit for recovery of excise tax paid by them under s. 66(1) (b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force of s. 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of Rs. 50/- per annum could not be imposed by the Municipal Committee and that after the coming into force of the Constitution, imposition of tax in excess of Rs. 250/- per annum was unconstitutional.\n\nThe Trial Court decreed the suit but on appeal the High Court held that the suit was bad for non-compliance with s. 48 of the C.P. Act according to which a suit for anything done or purported to be done under the Act had to be instituted within six months from the date of the accrual of the cause of action.\n\nIn answer the Municipal Committee contended that apart from the provisions of s. 48. the suit was barred by s. 84(3) under which no objection could be taken to any assessment in any other manner than is provided in the Act. That section is the very same provision under which the present suit, according to the defendants, is said to be barred from the cognisance of the civil Courts. It was held by this Court by majority that since the Municipal Committee had no authority to levy a tax beyond what was permitted by s. 142A of the Government of India Act or art. 276 of the Constitution, the assessment proceedings were totally void insofar as they purported to levy a tax in excess of the constitutionally permissible limits and therefore the suit was maintainable.\n\nThe question involved in B. M. Lakhani v. Malkapur M_unicipaity\n\n(supra) was similar, the contention being that the reeovenes wh1h were made in contravention of s. 142-A of the Government of Jndrn Act. 1935 and art. 276(2) of the Constitution were wholly without jurisdiction and therefore a suit for refm.1d of tax . ecovered by he Municipality in violation of the constitutional prov1s1ons was mamtamable.\n\nThat contention was accepted by this Court which treated the matter as concluded by the decision in Bharat Kala Bhandar's (supra) case.\n\n(I) [1965] 3 S.C.R. 499.\n\n(2) A.LR. 1970 S.C. 1002.\n\n(3) [I 96i] J S.C.R. 662.\n\n• , J\n\n- ---\n\nIn Dhulabhai and others v. The State of Madhya Pradesh (supra) foe position was similar to that in the two cases noticed above.\n\nSection 1 7 of the Madhya Bharat Sales Tax Act provided that no assessment made and no order passed under the Act or the Rules made thereunder shall be called in question in any Court. It was conceded by the State Government that the sales tax levied on the appellants was un- (:Onstitutional in view of art. 301 of the Constitution but it was contended that the civil Court had no jurisdiction to entertain the appellants' suit for refund of the tax in view of s. 17 of the Act. After an examination of vari, ous decisions including those to which we have referred in this judgment Hidayatullah, J., who spoke for the Constitution Bench formulated seven propositions bearing on the construction of statutes which, expressly or by necessary implication, bar the jurisdiction of civil Courts. It is unnecessary to examine each one of those propositions for the short reason that as in the case of Bharat Kala Bhandar and B. M. Lakhani, (supra) so in the case of Dhulabhai {supra) the recovery of sales tax was unconstitutional and the suit, for that reason, was held maintainable.\n\nAttention must, however, be drawn to propositions (1), (4) and (6). The 1st proposition states that where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.\n\nSuch provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.\n\nThe 4th proposition is that when a provision is already declared unconstitutional or the constitutionality of any provis'on is to be challenged, a suit is open.\n\nThe 6th proposition which bears more appropriately on the instant case says that questions of the correctness of the assessment, apart from its constitutionality, arc for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an \"xpress prohibition in the particular Act.\n\nIn eith•:r case the schme of the particular Ac:t must be cxammed because 1t 1s a relevant enqrnry.\n\nTe plaintiffs' contention that the suit is not barred from the cognizance of the civil Court is effectively answered by these propositions but even so, a discussion of the jurisdictional issue will not be complete withou.t reference to a decision rendered by a seven-Judge Bench of this Court in Kam/a Mills Ltd. v. State of Bombay('). The appellants therein were assessed to sales tax on sales which were treated by the Sales Tax authorities as 'inside sales' but which according to the decision in Bengal Immunity Co. Ltd. v. State of Bihar(2) were 'out- ,; de sales' and therefore non-taxable under the Bombay Sales Tax Act, 1046, After the decision in Bengal Immunity(') case which came on\n\nSeptember 6, 1955 the appellants discovered that they were illegally 'ubjected to sales tax and since the period prescribed by the Act for adopting the remedies thereunder had expired, the appellants filed a -suit for recovery of the sales tax illegally .collected from them in respect\n\n0) [1966] t S.C.R. 64.\n\n(2) J, t955] 2 S.C.R. 603.\n\nof the outside sales.\n\nThe State of Bombay contended that the suit was. barred by s. 20 of the Act which provided, to the extent material, that no assessment made and no order passed under the Act or the Rules. shall be called into question in any civil Court.\n\nIt was held by this Court that s. 20 protected all assessments made under the Act or the Rules made thereunder and that the protection was wide enough to cover assessments made by the appropriate authorities under the Act whether the assessments were made correctly or not.\n\nObserving that if he appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes erroneously to the conclusion that a transaction which is an outside sale is not an outside sale and proceeds to levy sales tax on it its decision ca@ot be said to be without jurisdiction, the Court held that the suit was barred from the cognizance of the civil Court. In coming to this conclusion the Court relied upon the decision in Firm and Illuri Subhaya Chetty & Sons v.\n\nThe State of Andhra Pradesh(') which had taken the view, while interpreting a similar provision in s. 1 SA of the Madras General Sales Tax Act, that the expression \"any assessment made under this Act\" was wide enough to cover all assessments made by the appropriate authorities under the Act, whether the said assessments were made correctly r, r not.\n\nThe decision in Bharat Kala Bhandar (supra) was brought to the notice of tile Court in Kam/a Mills (supra) case but that decision was distinguished on the ground that the provision which fell for conslruction therein was worded differently and as observed in Mask & Co.\n\n(supra) \"decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid\n\ndown\".\n\nWith great respect, the decision in Bharat Kala Bhandar\n\n(supra) is distinguishable for the weightier reason that the tax recovered in that case was unconstitutional and no provision of a statute could be construed as laying down that no Court shall have jurisdiction to order a refund of a tax collected in violation of a constitutional provision. If there were a provision which so provided or which could be so construed, that provision would itself be unconstitutional.\n\nIn Kam/a Mflls (supra) case it was observed that if a statute c1cates a special right or liability, provides for the determination of that right or liability by tribunals specially constituted in that behalf and lays down that all questions in regard to that right or liability shall\n\nr.e exclusively determined by the tribunals so comtituted, it becomes pertinent to enquire whether rmedies normally associated with_actions in a civil Court are prescribed by the said statute or not.\n\nIf ihe Court is satisfied that the Act provides no remedy for maki~ a claim for the\n\nreovery of an illegally collected tax the Court might hesitate to construe a provision giving finality to the orders passed by the tribunals specially created by the Act as creating an abolute bar to the suit and if such a construction was not reasonably possible, the Court would be called upon to examine the constitutionality of the provision excluding the civil Court's jurisdiction in the light of arts. 19 and 31 of the Constitution.\n\nAccording to the 1st proposition in Dhulabhai's (supra) case, if the statut<l. gives finality to the orders passed by the special\n\n(1) [1964] I S.C.R. 752.\n\n--~\n\n\ntribunals created by it, the civil Court's jurisdiction would be excluded iC the statute provides adequate remedies to do what the civil Courts are normally empowered to do in a suit.\n\nThe 6th proposition in that case states that questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.\n\nFurther, that in either case the scheme of the particular Ac~ must be examined because it is a relevant enquiry. These considerations make it necessary to examine the relevant provisions of the Act of 1922 and the Rules framed thereunder with a view to seeing whether they provide adequate remedies to the aggrieved party to challene a wrong or\n\nii!egal exaction of octroi du\\y and whether correspondmgly, the autho_rities specially created by the Act have the 12ower t.o do what cIVJI Courts are generally empowered to do.\n\nThis mquiry 1s relevant even though s. 84(3) of the Act does not merell:' say that ordcr.s pssed by the special tribunals shall be final but provides that no ob1ect1on shall be taken to any asses5ment, levy etc., in any other manner or by any other authority than is provided in the Act.\n\nSection 66 (1 )(b) of the C.P. and Berar Municipalities Act, 1922 I) empowers the Municipal Committee to impose an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits.\n\nSection 83(1) provides that an appeal against the assessment or levy of, or refusal to refund, any tax under the Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the Provincial Government in that behalf.\n\nSub-section 1-A of s. 83 gives to the person aggrieved by the decision E , , of the appellate authority the right to apply to the State Government .,,. for revision of the decision on the ground (a) that the decision is contrary to law or is repugnant to any principle of assessment of a tax, or (b) that the appellate authority has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction vested in it by law.\n\nSection 83 (2) empowers the appellate or revision authority to draw up a statement of the case and make a reference to the High F Court for its decision if any question as to the liability to assessment or as to the principle of assessment arises in the matter on which the authority entertains a reasonable doubt.\n\nThen comes s. 84 which by sub-s. (1) provides for a limitation of 30 days for appeal and by sub-s.\n\n(3) lays down the injunction which is the bone of contentions in the instant case that no objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be taxed or assessed G be questioned in any other manner or by any other authority than is provided in the Act.\n\nSection 71 of _the Act empowers the Provincial Government to mae rules regulatm& the_ assessment of taxes and for preventing evasion\n\nf \"ssessmen;; Sect10n l6 which appers under the heading \"Collection o'. taxes empowers. the government to make rules regulating the H\n\ncollct10n of taxes mclud1g the pre~ntion of evasion of payment and\n\npa) ment of lump sums m composition.\n\nSection 85 confers similar empowerment to make mies regulating the refund of taxes.\n\nIn exrcise of the powers conferred by s. 71, 76 and 85 and in supersess1on of the earlier rules, the Provincial Government made rules\n\n\"for the assessment, collection and refund of the octroi tax\" which were gazetted on April 9, 1929 and were amended from time to time. Rule 1 provides tbat articles subject to octroi duty are liable to duty as soon as they enter the octroi limits.\n\nRule 6 (b) which prescribes the mode of calculating octroi duty provides that the current prices of articles liable to ad valorem duty shall be the cost price to the importer plus the cost of carriage and not the price prevailing in the local market.\n\nRule 8 prescribes the details of the procedure for assessing the octroi duty.\n\nThe note to that rule says that the duty shall be ssessed on invoice and not on V. P. covers, Bank receipts, letters and hundies.\n\nRules 9(a) (b) (c), lO(b), 12, 13(a) and 13(b) provide for various matters relating to assessment and levy of octroi duty.\n\nRule J4(b) provides that any person importing or bringing any dutiable articles\n\nwithin the octroi limits of the municipality '\"withou: paying the duty\" or without giving declaration to the Octroi Moharrir shall be liable to pay double the duty and shall in addition be liable to be prosecuted for evasion of duty.\n\nRules 29 onwards deal with \"Refund of Octroi\".\n\nRule 31 out of that collocation of rules prescribes how and when applications for refunds may be made.\n\nThese provisions show in the first place that the defendants indubitably possess the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal Emits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise\n\nof that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction.\n\nApplying the test in Kam/a Mills (supra), if the appropriate authority while exerci, iog its jurisdiction and powers under the relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty when rule 14(b), iu fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction.\n\nQuestions of th~ correctness of the assessment apart from its constitutionality are, as held in Dhula- Bhai (supra), for the dedsion of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality. There is uo constitutional prohibition to the assessment which is impeached in the instant case as there was in Bharat Kala Bha11dar (supra), B. M. Lakhani (supra), and Dhulabhai (supra). The tax\n\nimposed in those cases being uncoustitutional, its levy, as said by Mudholkar J. who spoke for the majority in Bharat Kala Bhandar (supra), was \"without a vestige or semblnce of authority or even a shadow of right.\"\n\nThat is in regard to the power of the authority concerned to reassess and to levy double duty.\n\nSecondly, both the Act and the Rules contain provisions which we have noticed above, enabling the H aggrieved party effectively to challenge an illegal assessment or levy of double duty.\n\nBy reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84(3) of the Act.\n\n:\"'\n\nThe argument that double duty was levied on the plaintiffs though A not justified by the terms of rule 14 (b) goes to the correctness (1[ the Je\\y, not to the jurisdiction of the assessing authority.\n\nThat rule authorizes the imposition of double duty if dutiable articles arc imported\n\n(a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty.\n\nBut the error could be corrected only in the manner provided B in the Act and by the authority prescribed therein.\n\nThe remedy by way of a suit is barred.\n\nPlamtiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duly, from certain observations contained in Firm Seth Radha Kisha11 v. AdminLitrator, Municipal Committee, Ludhiana(') to the effect that \"a :, uit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abnses its power or does not act under\n\nthe Act but in violation of its provisions.\" In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly the authority was acting under tlie Act while revising the assessment and imposing double duty.\n\nIt had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. ln Firm Seti! Rmlha Kishan (supra), the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on \"sambhar salt'\" which was a variety of common salt.\n\nSection 86 of the Puniab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act.\n\nThat provision is identical with s. 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case.\n\nSection 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder.\n\nIt was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of s. 86.\n\nThe observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it.\n\nExcept in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights.\n\nWe would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kanda Mills (suprn) case where, speaking for a seven-Judge Bench, Gajendragadkar C.J. observed that if the appropriate authority while exercising its jurisdiction. and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).\n\n\nPlaintiff's reliance on the I st proposition in Dhuabhui' s (supra) case is equally misconceived. The first two propositions formulated in. that case contain a dichotomy.\n\nThe 1st proposition refers to cases where the statute merely gives finality to orders of special tribunals. Jn such cases, according to that proposition, the civil Court's ju11sdiction would not be excluded if \"the provisions of the particular Act are not complied with\".\n\nThe instant case does not fall under the 1st proposition because s. 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act.\n\nThe 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil Courts' jurisdiction.\n\nThe second paragraph of that proposition deals with cases where there is no express exclusion.\n\nThe instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down tha_t such rights and Jiabilit'cs shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil Courts are prescribed by the Act.\n\nUpon that examination we concluded that the suit is barred from the cognizance of the Civil Court.\n\nNot only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of these remedies.\n\nIn 1946-4 7 when the Municipal Committee reopened and revised the past assessments by charging octroi duty on an amount which was only 6!% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1946 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12t%instead of 6t%than the retail price of the goods. .Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty.\n\nHaving exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil Court to claim the refund.\n\nThat is impermissible in view of the provision contained ins. 84(3) of the Act.\n\nIn the result, Civil Appeal No. 1923 of 1972 filed by the plaintiffs fails and is dismissed.\n\nCivil Appeal No. 1924 of 1972 filed by the defendants succeeds and is allowed with the result that the plaintiffs' suit will stand dismissed.\n\nConsidering that the defendants revised the assessment after a lapse of time, parties will bear their costs throughout.\n\nP.B.R.\n\nC.A. 1923/72 dismissed.\n\nC.A .. 1924/72 allowed.", "total_entities": 126, "entities": [{"text": "F\n\nBATA SHOE CO", "label": "PETITIONER", "start_char": 2, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BATA SHOE CO", "offset_not_found": false}}, {"text": "CITY OF JABALPUR CORPORATION", "label": "RESPONDENT", "start_char": 20, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "CITY OF JABALPUR CORPORATION", "offset_not_found": false}}, {"text": "March 11, 1977", "label": "DATE", "start_char": 50, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "CITY OF JABALPUR CORPORATION\n\nMarch 11, 1977\n\n[Y'."}}, {"text": "Y'. V. CHANDRACHUD", "label": "JUDGE", "start_char": 67, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "Y.V. 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[", "canonical_name": "Dhula- Bhai"}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 8802, "end_char": 8810, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 9337, "end_char": 9345, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 9482, "end_char": 9507, "source": "ner", "metadata": {"in_sentence": "(From the Judgment and Decree dated 25-10-1957 of the Madhya Pradesh High Court in First Appeal No."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 9537, "end_char": 9546, "source": "ner", "metadata": {"in_sentence": "138/52)\n\nA. K. Sen, B. P. M_aheshwari and Suresh Sethi, for the appellant in C.A. No."}}, {"text": "B. P. M_aheshwari", "label": "LAWYER", "start_char": 9548, "end_char": 9565, "source": "ner", "metadata": {"in_sentence": "138/52)\n\nA. K. Sen, B. P. M_aheshwari and Suresh Sethi, for the appellant in C.A. No."}}, {"text": "Suresh Sethi", "label": "LAWYER", "start_char": 9570, "end_char": 9582, "source": "ner", "metadata": {"in_sentence": "138/52)\n\nA. K. Sen, B. P. M_aheshwari and Suresh Sethi, for the appellant in C.A. No."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 9657, "end_char": 9672, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for the respondent in CA No."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 9746, "end_char": 9757, "source": "ner", "metadata": {"in_sentence": "CHANDRACHUD, J.-These are cross appeals arisin& out of a judgment rendered by the Madhya Prac\\P:sh High Court in First Appeal No."}}, {"text": "Madhya Prac\\P:sh High Court", "label": "COURT", "start_char": 9828, "end_char": 9855, "source": "ner", "metadata": {"in_sentence": "CHANDRACHUD, J.-These are cross appeals arisin& out of a judgment rendered by the Madhya Prac\\P:sh High Court in First Appeal No."}}, {"text": "Bata Shoe Co. Ltd.", "label": "ORG", "start_char": 10096, "end_char": 10114, "source": "ner", "metadata": {"in_sentence": "It would be convenient to refer to the 'parties as plaintiffs and defendants, plain~ tiffs being the Bata Shoe Co. Ltd. and the defendants being the Corporation for the City of Jabalpur."}}, {"text": "Jabalpur", "label": "GPE", "start_char": 10172, "end_char": 10180, "source": "ner", "metadata": {"in_sentence": "It would be convenient to refer to the 'parties as plaintiffs and defendants, plain~ tiffs being the Bata Shoe Co. Ltd. and the defendants being the Corporation for the City of Jabalpur."}}, {"text": "Calcutta", "label": "GPE", "start_char": 10250, "end_char": 10258, "source": "ner", "metadata": {"in_sentence": "Plaintiffs are a limited company having their registered office at Calcutta."}}, {"text": "Batanagar", "label": "GPE", "start_char": 10310, "end_char": 10319, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "West Bengal", "label": "GPE", "start_char": 10323, "end_char": 10334, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "Batapur", "label": "GPE", "start_char": 10336, "end_char": 10343, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "West Punjab", "label": "GPE", "start_char": 10347, "end_char": 10358, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "Bihar", "label": "GPE", "start_char": 10377, "end_char": 10382, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "Faridabad", "label": "GPE", "start_char": 10387, "end_char": 10396, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "Delhi", "label": "GPE", "start_char": 10402, "end_char": 10407, "source": "ner", "metadata": {"in_sentence": "At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi."}}, {"text": "India", "label": "GPE", "start_char": 10593, "end_char": 10598, "source": "ner", "metadata": {"in_sentence": "The sale's organisation of the plaintiffs is situated at Cl!lcutta, and that organisation sells manufactured articles through the Company's retml shops situated in different parts of India and Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 10603, "end_char": 10611, "source": "ner", "metadata": {"in_sentence": "The sale's organisation of the plaintiffs is situated at Cl!lcutta, and that organisation sells manufactured articles through the Company's retml shops situated in different parts of India and Pakistan."}}, {"text": "Jabalpur Municipal Committee", "label": "ORG", "start_char": 10775, "end_char": 10803, "source": "ner", "metadata": {"in_sentence": "In respect of the articles which were imported by the retail shops at Jabalpur within the limits of the then Jabalpur Municipal Committee betwen April 1."}}, {"text": "March 31. 1945", "label": "DATE", "start_char": 10829, "end_char": 10843, "source": "ner", "metadata": {"in_sentence": "1943 and March 31."}}, {"text": "July 14, 1948", "label": "DATE", "start_char": 11734, "end_char": 11747, "source": "ner", "metadata": {"in_sentence": "by an order dated July 14, 1948 modified tbe ccision of the Municipal Committee by permitting them to charge the octroi duty on an amount which was less by 12t% tha.il the retail price of the goods."}}, {"text": "09tober 4, 1948", "label": "DATE", "start_char": 12085, "end_char": 12100, "source": "ner", "metadata": {"in_sentence": "The revision application\n\npreferred by the plaintiffs to the Board of Revenue was rejected on 09tober 4, 1948 on the ground that it was not maintainable."}}, {"text": "August 6, 1948", "label": "DATE", "start_char": 12275, "end_char": 12289, "source": "ner", "metadata": {"in_sentence": "21,071-1-3 on August 6, 1948."}}, {"text": "September 22, 1948", "label": "DATE", "start_char": 12445, "end_char": 12463, "source": "ner", "metadata": {"in_sentence": "Plaintiffs paid that amount too on September 22, 1948 under protest."}}, {"text": "June 20, 1949", "label": "DATE", "start_char": 12483, "end_char": 12496, "source": "ner", "metadata": {"in_sentence": "On June 20, 1949 they filed a suit against the Municipal Committee for recovery of the total amount of Rs."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 14064, "end_char": 14069, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces and Berar Municipalities Act, 1922", "label": "STATUTE", "start_char": 14077, "end_char": 14129, "source": "regex", "metadata": {}}, {"text": "August 6,\n\n1948", "label": "DATE", "start_char": 14297, "end_char": 14312, "source": "ner", "metadata": {"in_sentence": "High Court held that applying the special penod of hm1tat10n provided in s. 48 of the Central Provinces and Berar Municipalities Act, 1922 the suit was within limitation as regards the payment made by the plaintiffs on September 22, 1948 but that it was barred by limitation as regards the payment made on August 6,\n\n1948."}}, {"text": "art. 133", "label": "PROVISION", "start_char": 15044, "end_char": 15052, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces and Berar Municipalities Act, 1922", "statute": "the Central Provinces and Berar Municipalities Act, 1922"}}, {"text": "s. 65(1)", "label": "PROVISION", "start_char": 15374, "end_char": 15382, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 71, 76", "label": "PROVISION", "start_char": 15606, "end_char": 15616, "source": "regex", "metadata": {"statute": null}}, {"text": "May 7, 1940", "label": "DATE", "start_char": 16178, "end_char": 16189, "source": "ner", "metadata": {"in_sentence": "Defen~\n\ndants later disputed the deduction claimed by the plaintiffs and informed the latter by a letter of May 7, 1940 that octroi duty was leviable on the cost price of the goods as shown in the invoice plus the freight charges."}}, {"text": "Section 83", "label": "PROVISION", "start_char": 16733, "end_char": 16743, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 84(3)", "label": "PROVISION", "start_char": 16961, "end_char": 16974, "source": "regex", "metadata": {"statute": null}}, {"text": "Willes", "label": "JUDGE", "start_char": 18493, "end_char": 18499, "source": "ner", "metadata": {"in_sentence": "In Wolverhampton New Waterworks Company v. Hawkesford(') Willes J. referred to various classes of cases in which the jurisdiction of ordinary courts is excluded, the third class of such cases being \"where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.\""}}, {"text": "Ma!k & Company", "label": "ORG", "start_char": 19087, "end_char": 19101, "source": "ner", "metadata": {"in_sentence": "In Ma!k & Company's(') case the Privy Council was dealing with the provlS!ons of the Sea Customs Act, 1876 section 186 whereof uave a right of appeal to the person aggrieved by any decision or order pased by the Customs Officers under that Act."}}, {"text": "Sea Customs Act, 1876", "label": "STATUTE", "start_char": 19169, "end_char": 19190, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 186", "label": "PROVISION", "start_char": 19191, "end_char": 19202, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1876", "statute": "the Sea Customs Act, 1876"}}, {"text": "Section 191", "label": "PROVISION", "start_char": 19330, "end_char": 19341, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1876", "statute": "the Sea Customs Act, 1876"}}, {"text": "section 188", "label": "PROVISION", "start_char": 19503, "end_char": 19514, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1876", "statute": "the Sea Customs Act, 1876"}}, {"text": "section 191", "label": "PROVISION", "start_char": 19628, "end_char": 19639, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1876", "statute": "the Sea Customs Act, 1876"}}, {"text": "section 188", "label": "PROVISION", "start_char": 20046, "end_char": 20057, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1876", "statute": "the Sea Customs Act, 1876"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 20069, "end_char": 20080, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 20330, "end_char": 20338, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 20633, "end_char": 20641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 21214, "end_char": 21219, "source": "regex", "metadata": {"statute": null}}, {"text": "Bharat Kala Bhandar", "label": "PETITIONER", "start_char": 21782, "end_char": 21801, "source": "ner", "metadata": {"in_sentence": "The appellants in Bharat Kala Bhandar's(') case filed a suit for recovery of excise tax paid by them under s. 66(1) (b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force of s. 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of Rs.", "canonical_name": "Bharat Kala Bha11dar"}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 21871, "end_char": 21879, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces Municipalities Act, 1922", "label": "STATUTE", "start_char": 21891, "end_char": 21933, "source": "regex", "metadata": {}}, {"text": "s. 142A", "label": "PROVISION", "start_char": 21984, "end_char": 21991, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces Municipalities Act, 1922", "statute": "the Central Provinces Municipalities Act, 1922"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 21999, "end_char": 22028, "source": "regex", "metadata": {}}, {"text": "January 25, 1950", "label": "DATE", "start_char": 22034, "end_char": 22050, "source": "ner", "metadata": {"in_sentence": "The appellants in Bharat Kala Bhandar's(') case filed a suit for recovery of excise tax paid by them under s. 66(1) (b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force of s. 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of Rs."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 22382, "end_char": 22387, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 48", "label": "PROVISION", "start_char": 22657, "end_char": 22662, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 22687, "end_char": 22695, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 142A", "label": "PROVISION", "start_char": 23097, "end_char": 23104, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 276", "label": "PROVISION", "start_char": 23139, "end_char": 23147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 142", "label": "PROVISION", "start_char": 23510, "end_char": 23516, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 276(2)", "label": "PROVISION", "start_char": 23560, "end_char": 23571, "source": "regex", "metadata": {"statute": null}}, {"text": "Bharat Kala Bhandar", "label": "PETITIONER", "start_char": 23858, "end_char": 23877, "source": "ner", "metadata": {"in_sentence": "That contention was accepted by this Court which treated the matter as concluded by the decision in Bharat Kala Bhandar's (supra) case.", "canonical_name": "Bharat Kala Bha11dar"}}, {"text": "[1965] 3 S.C.R. 499", "label": "CASE_CITATION", "start_char": 23899, "end_char": 23918, "source": "regex", "metadata": {}}, {"text": "Section 1", "label": "PROVISION", "start_char": 24118, "end_char": 24127, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 301", "label": "PROVISION", "start_char": 24422, "end_char": 24430, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 24580, "end_char": 24585, "source": "regex", "metadata": {"statute": null}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 24701, "end_char": 24713, "source": "ner", "metadata": {"in_sentence": "After an examination of vari, ous decisions including those to which we have referred in this judgment Hidayatullah, J., who spoke for the Constitution Bench formulated seven propositions bearing on the construction of statutes which, expressly or by necessary implication, bar the jurisdiction of civil Courts."}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 24737, "end_char": 24755, "source": "ner", "metadata": {"in_sentence": "After an examination of vari, ous decisions including those to which we have referred in this judgment Hidayatullah, J., who spoke for the Constitution Bench formulated seven propositions bearing on the construction of statutes which, expressly or by necessary implication, bar the jurisdiction of civil Courts."}}, {"text": "B. M. Lakhani", "label": "OTHER_PERSON", "start_char": 25038, "end_char": 25051, "source": "ner", "metadata": {"in_sentence": "It is unnecessary to examine each one of those propositions for the short reason that as in the case of Bharat Kala Bhandar and B. M. Lakhani, (supra) so in the case of Dhulabhai {supra) the recovery of sales tax was unconstitutional and the suit, for that reason, was held maintainable."}}, {"text": "Bombay Sales Tax Act, 1046", "label": "STATUTE", "start_char": 26971, "end_char": 26997, "source": "regex", "metadata": {}}, {"text": "September 6, 1955", "label": "DATE", "start_char": 27060, "end_char": 27077, "source": "ner", "metadata": {"in_sentence": "The appellants therein were assessed to sales tax on sales which were treated by the Sales Tax authorities as 'inside sales' but which according to the decision in Bengal Immunity Co. Ltd. v. State of Bihar(2) were 'out- ,; de sales' and therefore non-taxable under the Bombay Sales Tax Act, 1046, After the decision in Bengal Immunity(') case which came on\n\nSeptember 6, 1955 the appellants discovered that they were illegally 'ubjected to sales tax and since the period prescribed by the Act for adopting the remedies thereunder had expired, the appellants filed a -suit for recovery of the sales tax illegally .collected from them in respect\n\n0) [1966] t S.C.R. 64."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 27426, "end_char": 27441, "source": "ner", "metadata": {"in_sentence": "The State of Bombay contended that the suit was."}}, {"text": "s. 20", "label": "PROVISION", "start_char": 27481, "end_char": 27486, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1046", "statute": "the Bombay Sales Tax Act, 1046"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 27692, "end_char": 27697, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1046", "statute": "the Bombay Sales Tax Act, 1046"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 28548, "end_char": 28552, "source": "regex", "metadata": {"statute": null}}, {"text": "SA of the Madras General Sales Tax Act", "label": "STATUTE", "start_char": 28553, "end_char": 28591, "source": "regex", "metadata": {}}, {"text": "Kam/a Mills", "label": "ORG", "start_char": 28889, "end_char": 28900, "source": "ner", "metadata": {"in_sentence": "The decision in Bharat Kala Bhandar (supra) was brought to the notice of tile Court in Kam/a Mills (supra) case but that decision was distinguished on the ground that the provision which fell for conslruction therein was worded differently and as observed in Mask & Co.\n\n(supra) \"decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid\n\ndown\"."}}, {"text": "Mask & Co.", "label": "ORG", "start_char": 29061, "end_char": 29071, "source": "ner", "metadata": {"in_sentence": "The decision in Bharat Kala Bhandar (supra) was brought to the notice of tile Court in Kam/a Mills (supra) case but that decision was distinguished on the ground that the provision which fell for conslruction therein was worded differently and as observed in Mask & Co.\n\n(supra) \"decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid\n\ndown\"."}}, {"text": "arts. 19 and 31", "label": "PROVISION", "start_char": 30676, "end_char": 30691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 31935, "end_char": 31943, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 66", "label": "PROVISION", "start_char": 32188, "end_char": 32198, "source": "regex", "metadata": {"statute": null}}, {"text": "Berar Municipalities Act, 1922", "label": "STATUTE", "start_char": 32223, "end_char": 32253, "source": "regex", "metadata": {}}, {"text": "Section 83(1)", "label": "PROVISION", "start_char": 32427, "end_char": 32440, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act, 1922", "statute": "Berar Municipalities Act, 1922"}}, {"text": "section 1", "label": "PROVISION", "start_char": 32676, "end_char": 32685, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act, 1922", "statute": "Berar Municipalities Act, 1922"}}, {"text": "s. 83", "label": "PROVISION", "start_char": 32691, "end_char": 32696, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act, 1922", "statute": "Berar Municipalities Act, 1922"}}, {"text": "Section 83", "label": "PROVISION", "start_char": 33119, "end_char": 33129, "source": "regex", "metadata": {"linked_statute_text": "Berar Municipalities Act, 1922", "statute": "Berar Municipalities Act, 1922"}}, {"text": "s. 84", "label": "PROVISION", "start_char": 33446, "end_char": 33451, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 71", "label": "PROVISION", "start_char": 33841, "end_char": 33851, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 85", "label": "PROVISION", "start_char": 34216, "end_char": 34226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71, 76 and 85", "label": "PROVISION", "start_char": 34339, "end_char": 34355, "source": "regex", "metadata": {"statute": null}}, {"text": "April 9, 1929", "label": "DATE", "start_char": 34521, "end_char": 34534, "source": "ner", "metadata": {"in_sentence": "In exrcise of the powers conferred by s. 71, 76 and 85 and in supersess1on of the earlier rules, the Provincial Government made rules\n\n\"for the assessment, collection and refund of the octroi tax\" which were gazetted on April 9, 1929 and were amended from time to time."}}, {"text": "Dhula- Bhai", "label": "OTHER_PERSON", "start_char": 36711, "end_char": 36722, "source": "ner", "metadata": {"in_sentence": "Questions of th~ correctness of the assessment apart from its constitutionality are, as held in Dhula- Bhai (supra), for the dedsion of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality.", "canonical_name": "Dhula- Bhai"}}, {"text": "Bharat Kala Bha11dar", "label": "PETITIONER", "start_char": 36980, "end_char": 37000, "source": "ner", "metadata": {"in_sentence": "There is uo constitutional prohibition to the assessment which is impeached in the instant case as there was in Bharat Kala Bha11dar (supra), B. M. Lakhani (supra), and Dhulabhai (supra).", "canonical_name": "Bharat Kala Bha11dar"}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 37133, "end_char": 37142, "source": "ner", "metadata": {"in_sentence": "The tax\n\nimposed in those cases being uncoustitutional, its levy, as said by Mudholkar J. who spoke for the majority in Bharat Kala Bhandar (supra), was \"without a vestige or semblnce of authority or even a shadow of right.\""}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 37720, "end_char": 37728, "source": "regex", "metadata": {"statute": null}}, {"text": "error could be corrected only in the manner provided B in the Act", "label": "STATUTE", "start_char": 38255, "end_char": 38320, "source": "regex", "metadata": {}}, {"text": "Seti! Rmlha Kishan", "label": "OTHER_PERSON", "start_char": 39290, "end_char": 39308, "source": "ner", "metadata": {"in_sentence": "ln Firm Seti!"}}, {"text": "Section 86", "label": "PROVISION", "start_char": 39542, "end_char": 39552, "source": "regex", "metadata": {"statute": null}}, {"text": "Puniab Municipal Act, 1911", "label": "STATUTE", "start_char": 39560, "end_char": 39586, "source": "regex", "metadata": {}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 39768, "end_char": 39776, "source": "regex", "metadata": {"linked_statute_text": "the Puniab Municipal Act, 1911", "statute": "the Puniab Municipal Act, 1911"}}, {"text": "Municipalities Act, 1922", "label": "STATUTE", "start_char": 39790, "end_char": 39814, "source": "regex", "metadata": {}}, {"text": "Section 86(2)", "label": "PROVISION", "start_char": 39866, "end_char": 39879, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1922", "statute": "Municipalities Act, 1922"}}, {"text": "s. 86", "label": "PROVISION", "start_char": 40283, "end_char": 40288, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1922", "statute": "Municipalities Act, 1922"}}, {"text": "Kanda Mills", "label": "ORG", "start_char": 40879, "end_char": 40890, "source": "ner", "metadata": {"in_sentence": "We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kanda Mills (suprn) case where, speaking for a seven-Judge Bench, Gajendragadkar C.J. observed that if the appropriate authority while exercising its jurisdiction."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 40945, "end_char": 40959, "source": "ner", "metadata": {"in_sentence": "We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kanda Mills (suprn) case where, speaking for a seven-Judge Bench, Gajendragadkar C.J. observed that if the appropriate authority while exercising its jurisdiction."}}, {"text": "Dhuabhui", "label": "OTHER_PERSON", "start_char": 41248, "end_char": 41256, "source": "ner", "metadata": {"in_sentence": "Plaintiff's reliance on the I st proposition in Dhuabhui' s (supra) case is equally misconceived.", "canonical_name": "Dhula- Bhai"}}, {"text": "s. 84(3)", "label": "PROVISION", "start_char": 41710, "end_char": 41718, "source": "regex", "metadata": {"statute": null}}, {"text": "July 14, 1946", "label": "DATE", "start_char": 43313, "end_char": 43326, "source": "ner", "metadata": {"in_sentence": "In 1946-4 7 when the Municipal Committee reopened and revised the past assessments by charging octroi duty on an amount which was only 6!% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1946 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12t%instead of 6t%than the retail price of the goods."}}]}
{"document_id": "1977_3_18_25_EN", "year": 1977, "text": "RAJ RANI & ANR.\n\nKAILASH CHAND & ANR.\n\nFebruary 17, 1977 (M. H. BEG, C. J. AND P. S. KA:lASAM, J.J\n\nBurden of Proof under Art. 142 of the Lin1itatio11 .. 1ct, 1908-A pluintif] adniilting dispossession in suits based on title, had to prove that Ile was in actual or constructive possession lVithin twelve )'enrs.\n\nThe suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then).\n\nShital Prasad was not a party to the mortgage.\n\nWhen the whole house was sold in Court auction on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kail ash Chand (Respondent No. 1) purchr:sed the said house and took symbolical possession on 12.9.1938.\n\nThe residential portioQ of the house was in occupation of Knipa Shankar (Appellant's husband) and Devita Rani w/o Shital Prasad Who established her right to 1/3 share by a decree obtained on 22-1-1941.\n\nAnother suit filed by Bhagwandas for a declaration and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on 27-8-1945, and, again symbolical possession \\Vas obt::iined on 21-11-46 'lJndcr 0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son). Respcndent No. 1 son of the auction purchaser Bhagwan Das filed a suit No. 475/1959 on or about 10-8-1959 for partition and possession over 2/3 shareof the portion in addition to certain claims of rents illegally collected and the amount of tax unpaid by the appellants.\n\nThe plaint allegations were : (i) The auction-purchaser has been in possession over 2/3 part of the house \\Vith Devika Rani who had. 1/3 share in the house; (ii) The defendantshad no concern \\Vith 2/3 sha:re in the said house themselves or through any other person V.'erc not in possession or in occupation of any part of the above said hOuse at any time as ov..-ners:\n\n(iii) The plaintiff was being obstructed in looking after the house and ralis ing rents and that the defendant had misled so1ne tenants and rea1iseci the rents due to him.\n\nThe appellant defendants took the plea (i) the morrtgage was not valid as the amount was not borrowed for Jegal necessity; (ii) :Even if the house \"had been sold in execution of the mortgage, they have been openly denying the ri, ghts of the plaintiff and had been in adverse possession and occupation of the property for more than 12 years so that, even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law limitation.\n\nThe Trial Court decreed the suit and the first appellate court confirn1ed it.\n\nThe second appeal filed in the High Court '-V~3 also dismissed.\n\nAllowing the appeal by special leave, the Court,\n\nHELD: -G ( 1) The High Court in _a second appeal and the Subordinc1te courts failed to determine the crucial question of actual or eYen constructive possession of the plaintiff within twelve years and give a find1:ng to that effect. [24EJ\n\n(2) The plaintiff had to prove that he was in actual or constructive possession within twelve years. It would be enough if he establishes that he \\\\'as in constructive possession within twelve years by receipts of rent or otherwise.\n\n[25F)\n\n(3) A decision on the question whether Art. 142 Lin1itation Act applies to a case, really deoends upon an interpretation of the pleadings. In cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession in suits based on title, had to prove that he \\Vas in actual or constructive possession within twelve years. [25C-E]\n\n( 4) The allegations in the plaint amount to an allegation that by ss~1t ing their ownership and inducing the tena?ts. not to pay rents to the pla1!1tdfs, the defendants had dispossessed the plaintiff.\n\nIn such a case. even if a defendant in actual possession could be deemed to be initiallY. a co-sharer, the plaintiff wou)d be really assef!ing that the .co-shrcr had tspossessed or ousted him.\n\nHence an ouster having been admitted in the plaint the burden would lie upon the plaintiff of proving his case. tat .the ouster hd taken place \\Vithin twelve years as Art. 142 <; if the old Lnlltat10!1 Act applied t? such a case. In the instant case, even if the symboltc dehvery of posses.ston to a co-sharer could be said to have interrupted any adverse possession, that interruption toOk place beyond twelve years [23B-C1\n\nBindilyachal Chand & Ors. v. Ram Gharib Chand & Ors. AIR 1934 All. 993, referred to.\n\nManikyala Rao v. f\\Tarasimhaswanii AIR 1966 SC 470, distinguished.\n\nAppeal allo\\ved ad case rmandd. to first ppellat~ out to determine \\vhether plaintiff was in possession w1th1n the penod of hm1tat1on.\n\nOVIL APPELLATE JURISDICTION : Civil Appeal No. 1984 of 1968.\n\n(Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of 1963) s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for the appellants.\n\nJ. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents.\n\nThe Judgmep.t of \\he Court was delivered by\n\nBEG, C. J. This is the defendant's appeal by special leave against E the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No. 397 in Katra, Allahabad.\n\nThe plaintiff claimed to be the sole heir of the auction purchaser of the house in October, 1937, at a Court sale in execution of a mortgage decree.\n\nThe house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original F owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand.\n\nKripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity.\n\nShital Prasad, a son of Kalyan Chand, was not a party to the mortgage deed.\n\nHence, Sita] Prasad's share could not G be said to have been sold.\n\nOn 12th September, 1938, symbolical possess10nwas taken by_ the auction purchaser, and, again in 1946, m proceeding for execut10n of a decree.\n\nBut, the house continued to J; ie in he occupation of Kripa Shanker, the husband of the appellant\n\nRa1 Ram and the father of the appellant Kali Charan. Devika Rani, widow of Sh1tal 'Prasad, who had filed a sui•t in 1937 for the declarat10n o~ her nghts to l/ 3 of the house, after her objections under H O; der XXT, Rufo 100 of the Code of Civil Procedure had been dismISsed, and obtamed a decree from the appellate Court on 22nd ,\n\n'.SUJ'REME COURT REPORTS [1977] 3 s.c.R.\n\nJanuary, 1941, ; with the result that Shital Prasad'\". 1/3 share went out, had not been impleaded in the suit now before us.\n\nIn 1945, the respondentcauction purchasr (now represented by son, Respondent No. 'l) had filed a suit against Kripa Shanker and another for a declaration of his Tights in respect of 2/3 share in a11other house and the ejectment of Kripa Shanker and Prayag Das from that house.\n\nAlthough that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case now before us was also in possession of Kripa Shanker as a trespasser.\n\nKripa Shanker died in 1953 leaving the appellants in possession as his heirs.\n\nThe suit now before us was filed on 10th August, 1959. It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt. Devika Rani, the widow of Shital Prasad having continued in possession over 113 share, her claim to that portion had been accepted so that it was no longer in dispute.\n\nBut, i<t was alleged that the auction purchaser has been in possession over 2/3 part of the house together with Devika Rani who had 1/3 share in the house.\n\nIt was also alleged that, after the death of Devika Rani, one Sankata Prasad, defendant No. 3, had started giving himself out as the owner of 1/3 share on the basis of a giftdeed of 1953 in his favour, and that defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sak-deed io,1 favour of Kripa Shanker, defendant No. 2.\n\nIn para 8 of the pla:.,1t, however, it is alleged: \"The defendants had no concern with the 2/3 share in the said: house themselves or through any other person nor were they ever in possession or in occupation of any part of above\n\nowners''. It is also alleged in the plaint that the plaintiff--auction purchaser's son had been, and, before him the auction-purchaser had been in possession of the house.\n\nFurthermore it is alleged that \"Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, obtained a false sale-deed in favour of defendant No. 2 in respect of the I /3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent\".\n\nThe plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants\n\nI and 2, the appellants before us. In paragraph l 0 of the plaint, it was stated that the defendants did not pay any taxes to the Municipal Board which had to file suit for their recovery which were decreed.\n\nThe plaintiff, however, alleged that he had pai\"l up the decretal amounts in excess of the 2/3 share which belonged to the plaintiff.\n\nThe plaintiff also alleged that he was being obstructed in looking after the house and realising rents.\n\nHence, according to the plaintiff, he had to seve a notice dated 23rd April, 1959, asking the defendants to partition the property.\n\nThe plaintiff alleged that the cause of action \"accrued to the plaintiff firstly in 1956 and aiter tbat on the end of each month when the defendants illegally received i>laintiff'> share in the rent from the tenants and did not pay to the plaintiff and then on 15-11-58 when the plaintiff has to oav excess amount to the Municipal Board on account of the defendants and the on 23-~-59. and, lastly, in May, 1959, when the defendants refused to parlltton\n\nthe plaintiff's share in the said house, within the jurisdiction of this Court and this Court has the jurisdiction to try this suit\",\n\nThe defendants-appellants had denied any concern with the mortgage.\n\nApparantly, their case was that as _the husband_ of Raj Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2, was a minor at the time of the alleged mortgage and his brother, not having borrowed the money for any legal necessity, could not bind Kripa Shanker or his heirs.\n\nFurthermore, the defendants pleaded that, even if the house bad been sold in execution of the mortgage decree, the defendants-appellants \"have been openly denying the rights of the plaintiff and bad been in adverse possession and occupation of the property for more than 12 years so that even if the plaintiff or his predecessors had any right, it bad been extinguished by the operation of law of limitation\".\n\nThe first question, on pleadings set out above, for the trial Court to determine was : has the plaintiff come with a plea of dispossession by the defendants so that Article 142 of the old Limitafron Act was applicable to the case, or, had the defendants, having set up the plea of adverse possession, to establish an ouster in order to discharge their burden of proof under Article 144 of the Limitation Act ? In view of section 3 of the old Limitation Act, i't was incui:nbent on the Court to determine whether the suit was filed within time, even if the plea of limitation bad lfOt been taken, when the question had been raised.\n\nSection 3 ( 1) provided :\n\n\"3 (I), Subject to the prov1s1on contained in >ections 4 to 24 (mclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence''.\n\nThe correct procedure for the Court to adopt was not only to frame an issue on the question of limitation but to determine whether it was governed by Article 142 or by Article 144 of the Limitation\n\nAct The trial Court did frame an issue indicating that Article 142 F was applicable.\n\nThis was issue No. 2 framed as follows :\n\n\"Whether the suit is within limitation\"?\n\nThe trial Court observed : \"lt ls also true that if the suit of the plaintiff is not established to be within limitation, that is to say that, if the possession of the plaintiff is not even with_in 12 years, the suit must fail as the rights of the plaintiffs would be deemed to have been extinguished by the adverse possession of defendants 1 and 2. or. their predecessor-in-interest, namely, Kripa Shankar\".\n\nAll this shows that the trial Court was applying Article 142 of the old Limitation\n\nAct We do not, however, find any finding given by the trial Court on the question whether, and, i•I so when and how, the plaintiff was 'in actual or constructive possession of any part of the house. If Article 142 applied, it meant that the plaintiff had admitted dispo- ssession. If this was the case, the following finding by the trial Court on the trial of the plaintiff seems to us to be premature :\n\n\"Now it will be noted that there has not been any partition between the plaintiff on the one hand and the other one third share holder Smt. Deoka or her snccessor-in-interest on the other hand.\n\nSmt. Deoka was admittedly a relation of Kripa Shnker and there is nothing unusual if Smt.\n\nDeoka had allowed Kripa Shanker to continue to live in the suit premises under the protection of her 1 /3 share. The\n\nconsi•stent Municipal receipts, the litigation with tenants, and over all the title deeds of the plaintiff; they all go to lend support to the plaintiff's case\".\n\nIn the first appeal against that judgment, it was again not decided anywhere what Article of the Umitation Act applied to the case. It appears to us that the appellate Court had also not come to the grips with the real question to be determined. It said :\n\n\"It was alleged that Kripa Shanker had taken possession over the house. The learned counsel for the appe!lant argued that these documents showed that Kripa Shanker was in possession over the entire house and that Bhagwan Das never obtained actual possession over it and only symobolical possession was delivered to him in this suit, It must be borne in mind that Bhagwan Das was owner to only 2/3rd share and I/3rd belonged to Mst. Deoki, who was real aunt of Kripa Shanker, and unless Bhagwan Das had got his share partitioned, he could not obtain actual possession over any portion of the house and as such only symbolical possession was delivered to him.\n\nThe question only is whether he remained in joint possession or not ? It is contended from the side of the appellants that he was not in possession and Kripa Shanker was in adverse possei; sion\n\nat least from 1945, and that this suit was filed in 1'>59, that is after more than 12 years when the defendant appellants had already perfected their title by adverse possession.\n\nThis symbolical possession was delivered on 21st of November, 1946.\n\nThis suit was filed in 1959 that is more than 12 years after and, therefore, there is force in the contention that it must be proved that Bhagwan Das was i'n joint possession. Bhagwan Das was a co-sharer alon~ with Mst.\n\nDeoki. Mst. Deoki's share ultimately came to the defendant appellant in 1957 and as such in 1957 the defendant appellant became co-sharer with the plaintiff resnonr1ent.\n\nIn 1957, 12 years had not passed and even if it is assumed that Bhagwan Das or the plaintiff r!'sPondent w<ts n()t in joint possession, the;•r right had not ceased in 1957. It was observed by the Supreme Court of India in the case\n\nP. Laxmi Reddv v. L. Laxmi Reddv (in 1957 A.LR. Snoreme Court 314), 'the burden of making out ouster is on the person claiming to displace the lawful title of co-heir by his adverse possession'.''\n\nIf the plaintiff's assertion was that the defendants had di'ipossessed him it did not matter whether the defendants, represented a\n\nco-sharer or not.\n\nIn that event, the plaintiff's case would certainly be deemed to be one in which the assertion of dispossession was there. In the case before us, it appears that the rights of Kripa Shanker, on the plaintiff's asserti<on that he had been a party to the mortgage, had come to an end by the sale of his rights in the property and delivery of possession to the auction purchaser.\n\nHis heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiff's own assertions.\n\nIn fact, they have not claimed to be holding through Kdpa Shanker.\n\nIn any event, the allegations in the plaint appear to us to amount to an allegation that, by asserting their own ownership and inducing the tenants not to pay rents to the plaintiff, the defendants had dispossessed' the plaintiff. 'In such a case, even if rn defendant in actual possession could be deemed to be i•nitially a co, sharer, the plaintiff would be really asserting that the co-share!:_ had dispossessed or ousted him.\n\nHence. an ouster having been admitted iu the plaint, the burden would lie upon the plaintiff of proving his case that the ouster had taken place within twelve years.\n\nOn any other view, the distinction between articles 142 and 144 of the former Umitation Act, which is important in this case, would vanish.\n\nIn a case between co-sharers, Bindhyachal Chand & Ors. v. Ram <Gharib Chand & Ors.,(') a \"Full Bench of the Allahabad High Court\n\nhad examined the difficulties which -arise when a co-sharer sues another on the allegation that he had been dispossessed.\n\nSulaiman, C.J., pointed out that article 144 was a residuary article which applied to suits for possession of immovable properly which could not fall elsewhere.\n\nAs regards the distinction betwl'en articles 142 and 144, he observed (at p. 997) :\n\n\"No doubt in many cases the distinction is very fine, and the line of demarcation between. dispossession and adverse possession is thin.\n\nBut) the question in each case is one of burden of proof, and it is incumbent on the plaintiff, when he admits his dispossession, to establish his possession within twelve years\".\n\nHe went on to point out (at p. 998) :\n\n\"Ordinarily, the possession of one co-owner, who 1s entitled to joint possession of the whole property, is referable to his title, and he cannot ask the Court to presume that his possession was illegal or adverse to the other coowner.\n\nIt follows that if one co-owner is in actual possession of the joint properly, and the other co-owner is either absent or is not in actual possession, the latter would still be in constructive possession of his property through his co-owner.\n\nThere would be prima facie no case where the possession of one co-owner was illegal and was' necessarily adverse to that of the other co-owner.\n\nThe presumption would be that they are both in joint possession.\n\nBut, it cannot_ be denied that one co-owner can dispossess another\n\n(!)A.LR. 1934 All. 993.\n\n3-240SCI/77\n\nco-owner and can exercise adverse possession over a joint property.\n\nIf, therefore, the plaintiff, a co-owner, admits that he has been dispossessed and that, at any rate, for a short period prior to the suit, the possession of his co-owner was adverse to him, then he cannot fall back on a mere presumption of joint possession in his favour and succeed without showing any other circumstances whatsoever\".\n\nThe following observations of the learned Chief Justice are also useful (at p. 998) :\n\n\"Personally speaking. I do not think that the plaintiff can by cleverly drafli'ng his plaint evade the burden of proof which Art. 142 casts upon one who is suing for possession on the ground of dispossession.\n\nWhen a plaintiff falsely alleges that he is in possession and wants a relief, to which the owner in possession is entitled, e.g., for partition, i•njunction, joint possession, etc., and it i~ found that he was in fact not in possession but had been dispossessed, technically speaking, the suit would fall under s. 42, Specific Reli'ef Act and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case.\n\nBut, a Court may allow him to change his ground and give him a decree for possession, treating his claim as one for recovery of possession on the basi~ of dispossession, provided he succeeds in showing that his dispossession took place within 12 years\".\n\nIt seems to us that, in the case now before us, Lhe High Court, on a second appeal to it, also failed to determine the crucial question of actual or e\\ en constructive possession of the plaintiff within twelve years.\n\nIt said :\n\n\"The argument advanced before me is that after the decree in suit No. 57 of 1945 the possession of Kripa Shanker became adverse and, as the suit for partition was not filed with 12 years of the date of the decree, the suit was barred by limitation.\n\nA large number of authoritie., were cited before me on the point. It was urged that it a member of an undivided Hindu family sells his undivided share and the alience does not bring a suit for partition and possession over his share within 12 years of the date of the alienation the possession of the alienor and all the other coparceners woukl be adverse and the suit for partition after the expiry of 12 years from the date of the alienation would be barred by time.\n\nSome of the authorities cited by the karned counsel for the appellant, to which I do not consider it necessary to refer, would seem to support his contention.\n\nLearned counsel for the respondent, however, has cited before me the latest case of the Supreme! Court in Manikayala Rao v.\n\nNarasimhaswami (AIR 1966 SC 470)\".\n\nThe case relied upon by the High Court is distinguishable on two grounds : firstly, it was not a case where the plaintiff, on the pleadings in tl1e plaint could be fairly said to have admitted dispossession\n\nji; i\n\nRAJ RANI V. KAILASII CHAND (Beg, C.J.) 25\n\nor ouster by setting up that the alleged co-sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, therefore, not be continuously for twelve years.\n\nIn the case before us, even if a symbolic delivery of possession to a co-sharer could be said to have interrupted any adverse possession, that interruption took place beyond 12 years.\n\nHence, it was the duty of the plaintiff to have shown by cogent evidence how, by receipt of rent or an admission by the defendan:s or o'herwise, he or his predecessorin-interest could be deemed to be in actual or constructive possession as an owner or as a co-sharer with the defendants over the house in dispute.\n\nWe may observe that the difficulty in deciding the question whether article 142 or article 144, Limitation Act applies to a case, which really depends upon an interpretation of the pleadings, was sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963.\n\nThe reasons given for this change were :\n\n\"Article 142 and 144 of the cxis•ing Act have given rise '.o a good deal of confusion with respect to suits for possession by owners of property.\n\nArticle 64 as proposed replaces Art. 142, but is restricted to suit based on possessory ti.le so that an owner of property docs not lose his right to the property unless the defendant in possession is able to prove adverse possession\".\n\nIn other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on title, had to prove that he was in actual or constructive possession within twelve years.\n\nHence, the change in law.\n\nWe do not, however, propose to examine or lay down here the exact position under the amended law of limitation under the act of 1963.\n\nTh~ result is that, in the case before us, the palintiff had to prove\n\nthat he was in actual or constructive possession within twelve years.\n\nF It would be enough if he establishes that he was in constructive poosession within twelve years by receipt of rent or otherwise. There is no finding to tha'. effect given by the High Court or by the Subordinate Courts.\n\nWe, therefore, allow this appeal, set aside the judgments and orders of the High Court and of the first appellate Court.\n\nWe smd the case back to the first appellate Court, which is the final Court of facts, to determine, on the evidence already on record, whether the plaintiff was in actual or constructive possession within twelve years of the filing of the suit. If the plaintiff can establish that, the suit will have to be decreed.\n\nOtherwise, the suit must fail.\n\nThe costs will abide the results.\n\ns.:a.\n\nAppeal allowed and case remanded.", "total_entities": 94, "entities": [{"text": "RAJ RANI & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "RAJ RANI & ANR", "offset_not_found": false}}, {"text": "KAILASH CHAND & ANR", "label": "RESPONDENT", "start_char": 17, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "KAILASH CHAND & ANR", "offset_not_found": false}}, {"text": "1977 (M. H. BEG", "label": "JUDGE", "start_char": 52, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 122, "end_char": 130, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalyan Chand", "label": "OTHER_PERSON", "start_char": 338, "end_char": 350, "source": "ner", "metadata": {"in_sentence": "The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then)."}}, {"text": "Kripa Shankar", "label": "PETITIONER", "start_char": 466, "end_char": 479, "source": "ner", "metadata": {"in_sentence": "The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then).", "canonical_name": "Kripa Shankar"}}, {"text": "Sangamlal", "label": "OTHER_PERSON", "start_char": 537, "end_char": 546, "source": "ner", "metadata": {"in_sentence": "The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then).", "canonical_name": "Sangam Lal"}}, {"text": "Bansidhar", "label": "OTHER_PERSON", "start_char": 551, "end_char": 560, "source": "ner", "metadata": {"in_sentence": "The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then)."}}, {"text": "Krioa Shankar", "label": "PETITIONER", "start_char": 615, "end_char": 628, "source": "ner", "metadata": {"in_sentence": "The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \\Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then).", "canonical_name": "Kripa Shankar"}}, {"text": "Shital Prasad", "label": "OTHER_PERSON", "start_char": 654, "end_char": 667, "source": "ner", "metadata": {"in_sentence": "Shital Prasad was not a party to the mortgage.", "canonical_name": "Shital Prasad"}}, {"text": "3-10-1937", "label": "DATE", "start_char": 752, "end_char": 761, "source": "ner", "metadata": {"in_sentence": "When the whole house was sold in Court auction on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kail ash Chand (Respondent No."}}, {"text": "Bhagwandas", "label": "PETITIONER", "start_char": 813, "end_char": 823, "source": "ner", "metadata": {"in_sentence": "When the whole house was sold in Court auction on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kail ash Chand (Respondent No.", "canonical_name": "Bhagwan Das"}}, {"text": "Kail ash Chand", "label": "OTHER_PERSON", "start_char": 834, "end_char": 848, "source": "ner", "metadata": {"in_sentence": "When the whole house was sold in Court auction on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kail ash Chand (Respondent No."}}, {"text": "12.9.1938", "label": "DATE", "start_char": 928, "end_char": 937, "source": "ner", "metadata": {"in_sentence": "1) purchr:sed the said house and took symbolical possession on 12.9.1938."}}, {"text": "Knipa Shankar", "label": "PETITIONER", "start_char": 998, "end_char": 1011, "source": "ner", "metadata": {"in_sentence": "The residential portioQ of the house was in occupation of Knipa Shankar (Appellant's husband) and Devita Rani w/o Shital Prasad Who established her right to 1/3 share by a decree obtained on 22-1-1941.", "canonical_name": "Kripa Shankar"}}, {"text": "22-1-1941", "label": "DATE", "start_char": 1131, "end_char": 1140, "source": "ner", "metadata": {"in_sentence": "The residential portioQ of the house was in occupation of Knipa Shankar (Appellant's husband) and Devita Rani w/o Shital Prasad Who established her right to 1/3 share by a decree obtained on 22-1-1941."}}, {"text": "27-8-1945", "label": "DATE", "start_char": 1269, "end_char": 1278, "source": "ner", "metadata": {"in_sentence": "Another suit filed by Bhagwandas for a declaration and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on 27-8-1945, and, again symbolical possession \\Vas obt::iined on 21-11-46 'lJndcr 0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son)."}}, {"text": "21-11-46", "label": "DATE", "start_char": 1332, "end_char": 1340, "source": "ner", "metadata": {"in_sentence": "Another suit filed by Bhagwandas for a declaration and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on 27-8-1945, and, again symbolical possession \\Vas obt::iined on 21-11-46 'lJndcr 0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son)."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1359, "end_char": 1364, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhagwan Das", "label": "PETITIONER", "start_char": 1508, "end_char": 1519, "source": "ner", "metadata": {"in_sentence": "1 son of the auction purchaser Bhagwan Das filed a suit No.", "canonical_name": "Bhagwan Das"}}, {"text": "\\Vith Devika Rani", "label": "OTHER_PERSON", "start_char": 1840, "end_char": 1857, "source": "ner", "metadata": {"in_sentence": "The plaint allegations were : (i) The auction-purchaser has been in possession over 2/3 part of the house \\Vith Devika Rani who had."}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 3460, "end_char": 3468, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3592, "end_char": 3606, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 4339, "end_char": 4347, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1966 SC 470", "label": "CASE_CITATION", "start_char": 4719, "end_char": 4734, "source": "regex", "metadata": {}}, {"text": "OVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 4888, "end_char": 4915, "source": "ner", "metadata": {"in_sentence": "OVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "C. Manchanda", "label": "LAWYER", "start_char": 5082, "end_char": 5094, "source": "ner", "metadata": {"in_sentence": "3224 of 1963) s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for the appellants."}}, {"text": "M. L. Chitravanshi", "label": "LAWYER", "start_char": 5096, "end_char": 5114, "source": "ner", "metadata": {"in_sentence": "3224 of 1963) s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for the appellants."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 5119, "end_char": 5132, "source": "ner", "metadata": {"in_sentence": "3224 of 1963) s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for the appellants."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 5155, "end_char": 5166, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents."}}, {"text": "V. C. Prashar", "label": "LAWYER", "start_char": 5168, "end_char": 5181, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents."}}, {"text": "Shreepal Singh", "label": "LAWYER", "start_char": 5186, "end_char": 5200, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents."}}, {"text": "BEG", "label": "JUDGE", "start_char": 5265, "end_char": 5268, "source": "ner", "metadata": {"in_sentence": "The Judgmep.t of \\he Court was delivered by\n\nBEG, C. J. This is the defendant's appeal by special leave against E the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5365, "end_char": 5385, "source": "ner", "metadata": {"in_sentence": "The Judgmep.t of \\he Court was delivered by\n\nBEG, C. J. This is the defendant's appeal by special leave against E the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No."}}, {"text": "Sharda Prasad", "label": "OTHER_PERSON", "start_char": 5705, "end_char": 5718, "source": "ner", "metadata": {"in_sentence": "The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original F owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand."}}, {"text": "Sheo Shankar", "label": "OTHER_PERSON", "start_char": 5815, "end_char": 5827, "source": "ner", "metadata": {"in_sentence": "The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original F owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand."}}, {"text": "Sangam Lal", "label": "OTHER_PERSON", "start_char": 5832, "end_char": 5842, "source": "ner", "metadata": {"in_sentence": "The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original F owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand.", "canonical_name": "Sangam Lal"}}, {"text": "Kripa Shanker", "label": "PETITIONER", "start_char": 5898, "end_char": 5911, "source": "ner", "metadata": {"in_sentence": "Kripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity.", "canonical_name": "Kripa Shankar"}}, {"text": "Sita] Prasad", "label": "OTHER_PERSON", "start_char": 6237, "end_char": 6249, "source": "ner", "metadata": {"in_sentence": "Hence, Sita] Prasad's share could not G be said to have been sold.", "canonical_name": "Shital Prasad"}}, {"text": "12th September, 1938", "label": "DATE", "start_char": 6301, "end_char": 6321, "source": "ner", "metadata": {"in_sentence": "On 12th September, 1938, symbolical possess10nwas taken by_ the auction purchaser, and, again in 1946, m proceeding for execut10n of a decree."}}, {"text": "Kripa Shanker", "label": "PETITIONER", "start_char": 6496, "end_char": 6509, "source": "ner", "metadata": {"in_sentence": "But, the house continued to J; ie in he occupation of Kripa Shanker, the husband of the appellant\n\nRa1 Ram and the father of the appellant Kali Charan.", "canonical_name": "Kripa Shankar"}}, {"text": "Ram", "label": "PETITIONER", "start_char": 6545, "end_char": 6548, "source": "ner", "metadata": {"in_sentence": "But, the house continued to J; ie in he occupation of Kripa Shanker, the husband of the appellant\n\nRa1 Ram and the father of the appellant Kali Charan."}}, {"text": "Charan", "label": "PETITIONER", "start_char": 6586, "end_char": 6592, "source": "ner", "metadata": {"in_sentence": "But, the house continued to J; ie in he occupation of Kripa Shanker, the husband of the appellant\n\nRa1 Ram and the father of the appellant Kali Charan."}}, {"text": "Devika Rani", "label": "PETITIONER", "start_char": 6594, "end_char": 6605, "source": "ner", "metadata": {"in_sentence": "Devika Rani, widow of Sh1tal 'Prasad, who had filed a sui•t in 1937 for the declarat10n o~ her nghts to l/ 3 of the house, after her objections under H O; der XXT, Rufo 100 of the Code of Civil Procedure had been dismISsed, and obtamed a decree from the appellate Court on 22nd ,\n\n'.SUJ'REME COURT REPORTS [1977] 3 s.c.", "canonical_name": "Devika Rani"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6770, "end_char": 6797, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kripa Shanker", "label": "RESPONDENT", "start_char": 7153, "end_char": 7166, "source": "ner", "metadata": {"in_sentence": "l) had filed a suit against Kripa Shanker and another for a declaration of his Tights in respect of 2/3 share in a11other house and the ejectment of Kripa Shanker and Prayag Das from that house.", "canonical_name": "Kripa Shankar"}}, {"text": "Prayag Das", "label": "OTHER_PERSON", "start_char": 7292, "end_char": 7302, "source": "ner", "metadata": {"in_sentence": "l) had filed a suit against Kripa Shanker and another for a declaration of his Tights in respect of 2/3 share in a11other house and the ejectment of Kripa Shanker and Prayag Das from that house."}}, {"text": "10th August, 1959", "label": "DATE", "start_char": 7672, "end_char": 7689, "source": "ner", "metadata": {"in_sentence": "The suit now before us was filed on 10th August, 1959."}}, {"text": "Devika Rani", "label": "PETITIONER", "start_char": 7803, "end_char": 7814, "source": "ner", "metadata": {"in_sentence": "Devika Rani, the widow of Shital Prasad having continued in possession over 113 share, her claim to that portion had been accepted so that it was no longer in dispute.", "canonical_name": "Devika Rani"}}, {"text": "Sankata Prasad", "label": "RESPONDENT", "start_char": 8191, "end_char": 8205, "source": "ner", "metadata": {"in_sentence": "It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defendant No.", "canonical_name": "Sankata Prasad"}}, {"text": "Raj Rani", "label": "RESPONDENT", "start_char": 8357, "end_char": 8365, "source": "ner", "metadata": {"in_sentence": "1, Raj Rani, had been giving out that Sankata Prasad had executed a sak-deed io,1 favour of Kripa Shanker, defendant No.", "canonical_name": "RAJ RANI & ANR"}}, {"text": "Sankata Prasad", "label": "RESPONDENT", "start_char": 8392, "end_char": 8406, "source": "ner", "metadata": {"in_sentence": "1, Raj Rani, had been giving out that Sankata Prasad had executed a sak-deed io,1 favour of Kripa Shanker, defendant No.", "canonical_name": "Sankata Prasad"}}, {"text": "Raj Rani", "label": "PETITIONER", "start_char": 8915, "end_char": 8923, "source": "ner", "metadata": {"in_sentence": "Furthermore it is alleged that \"Raj Rani had, in collusion with Sankata Prasad, defendant No.", "canonical_name": "RAJ RANI & ANR"}}, {"text": "15-11-58", "label": "DATE", "start_char": 10173, "end_char": 10181, "source": "ner", "metadata": {"in_sentence": "The plaintiff alleged that the cause of action \"accrued to the plaintiff firstly in 1956 and aiter tbat on the end of each month when the defendants illegally received i>laintiff'> share in the rent from the tenants and did not pay to the plaintiff and then on 15-11-58 when the plaintiff has to oav excess amount to the Municipal Board on account of the defendants and the on 23-~-59."}}, {"text": "Kali Charan", "label": "OTHER_PERSON", "start_char": 10667, "end_char": 10678, "source": "ner", "metadata": {"in_sentence": "1 and the father of Kali Charan, appellant No."}}, {"text": "Article 142", "label": "PROVISION", "start_char": 11437, "end_char": 11448, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 144", "label": "PROVISION", "start_char": 11646, "end_char": 11657, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11665, "end_char": 11679, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 11693, "end_char": 11702, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11714, "end_char": 11728, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11904, "end_char": 11913, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 142", "label": "PROVISION", "start_char": 12323, "end_char": 12334, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 144", "label": "PROVISION", "start_char": 12341, "end_char": 12352, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 142", "label": "PROVISION", "start_char": 12427, "end_char": 12438, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 142", "label": "PROVISION", "start_char": 13001, "end_char": 13012, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 142", "label": "PROVISION", "start_char": 13238, "end_char": 13249, "source": "regex", "metadata": {"statute": null}}, {"text": "Deoka", "label": "OTHER_PERSON", "start_char": 13581, "end_char": 13586, "source": "ner", "metadata": {"in_sentence": "Deoka or her snccessor-in-interest on the other hand.", "canonical_name": "Deoka"}}, {"text": "Kripa Shnker", "label": "PETITIONER", "start_char": 13676, "end_char": 13688, "source": "ner", "metadata": {"in_sentence": "Deoka was admittedly a relation of Kripa Shnker and there is nothing unusual if Smt.", "canonical_name": "Kripa Shankar"}}, {"text": "Article of the Umitation Act", "label": "STATUTE", "start_char": 14090, "end_char": 14118, "source": "regex", "metadata": {}}, {"text": "Deoki", "label": "OTHER_PERSON", "start_char": 14697, "end_char": 14702, "source": "ner", "metadata": {"in_sentence": "Deoki, who was real aunt of Kripa Shanker, and unless Bhagwan Das had got his share partitioned, he could not obtain actual possession over any portion of the house and as such only symbolical possession was delivered to him.", "canonical_name": "Deoka"}}, {"text": "21st of November, 1946", "label": "DATE", "start_char": 15343, "end_char": 15365, "source": "ner", "metadata": {"in_sentence": "This symbolical possession was delivered on 21st of November, 1946."}}, {"text": "Bhagwan Das", "label": "PETITIONER", "start_char": 15506, "end_char": 15517, "source": "ner", "metadata": {"in_sentence": "This suit was filed in 1959 that is more than 12 years after and, therefore, there is force in the contention that it must be proved that Bhagwan Das was i'n joint possession.", "canonical_name": "Bhagwan Das"}}, {"text": "Supreme Court of India", "label": "COURT", "start_char": 15956, "end_char": 15978, "source": "ner", "metadata": {"in_sentence": "It was observed by the Supreme Court of India in the case\n\nP. Laxmi Reddv v. L. Laxmi Reddv (in 1957 A.LR."}}, {"text": "Kdpa Shanker", "label": "PETITIONER", "start_char": 16892, "end_char": 16904, "source": "ner", "metadata": {"in_sentence": "In fact, they have not claimed to be holding through Kdpa Shanker.", "canonical_name": "Kripa Shankar"}}, {"text": "articles 142 and 144", "label": "PROVISION", "start_char": 17548, "end_char": 17568, "source": "regex", "metadata": {"statute": null}}, {"text": "Bindhyachal Chand", "label": "OTHER_PERSON", "start_char": 17676, "end_char": 17693, "source": "ner", "metadata": {"in_sentence": "In a case between co-sharers, Bindhyachal Chand & Ors."}}, {"text": "Sulaiman", "label": "JUDGE", "start_char": 17899, "end_char": 17907, "source": "ner", "metadata": {"in_sentence": "Sulaiman, C.J., pointed out that article 144 was a residuary article which applied to suits for possession of immovable properly which could not fall elsewhere."}}, {"text": "article 144", "label": "PROVISION", "start_char": 17932, "end_char": 17943, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 142 and 144", "label": "PROVISION", "start_char": 18097, "end_char": 18117, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 19919, "end_char": 19927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 20315, "end_char": 20320, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme! Court", "label": "COURT", "start_char": 21921, "end_char": 21935, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the respondent, however, has cited before me the latest case of the Supreme!"}}, {"text": "AIR 1966 SC 470", "label": "CASE_CITATION", "start_char": 21974, "end_char": 21989, "source": "regex", "metadata": {}}, {"text": "RAJ RANI V. KAILASII CHAND", "label": "JUDGE", "start_char": 22209, "end_char": 22235, "source": "ner", "metadata": {"in_sentence": "The case relied upon by the High Court is distinguishable on two grounds : firstly, it was not a case where the plaintiff, on the pleadings in tl1e plaint could be fairly said to have admitted dispossession\n\nji; i\n\nRAJ RANI V. KAILASII CHAND (Beg, C.J.) 25\n\nor ouster by setting up that the alleged co-sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, therefore, not be continuously for twelve years."}}, {"text": "article 142", "label": "PROVISION", "start_char": 23092, "end_char": 23103, "source": "regex", "metadata": {"statute": null}}, {"text": "article 144", "label": "PROVISION", "start_char": 23107, "end_char": 23118, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 23120, "end_char": 23134, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 23248, "end_char": 23262, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "article 64 and 65", "label": "PROVISION", "start_char": 23303, "end_char": 23320, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 23324, "end_char": 23338, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 142 and 144", "label": "PROVISION", "start_char": 23392, "end_char": 23411, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 64", "label": "PROVISION", "start_char": 23538, "end_char": 23548, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 23570, "end_char": 23578, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 23823, "end_char": 23837, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1977_3_195_205_EN", "year": 1977, "text": "• •\n\nSATBIR SINGH & ANR. ETC. ETC. v.\n\nSTATE OF PUNJAB\n\nMarch 14, 1977\n\ntY. V. CHANDAACHUD, P. K.· GoSWAMI AND P. N. SHINGHAL, JJ.]\n\nCode of Criminal Procedure. 1973 (Act !I of 1974), S. 378 (Code of 1898, s. 417)-dpJ'eal against acquittal-Sal:itc.ry principles in dealirie lrith .an appeal.\n\nEJJidence Act (Act 1 of 1872), 1872-S. 24--i,'onf~:, sion obtained by the .superior ofiicer by questioning separately the llCCuscd after several abortive at/empts to secure confessioni S. 24 is auructed. -\n\n. All the accused were tiied for offences u/s. 302/120B and 364 J.P.C., but acquitted by the Additional Sessions Judge, Amritsar. On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life. Satbir Singh was also convicted on the sole testimony of Puran Singh (PW3) u/s. 364 I.P.C. and sentenced to rigorous imprisonment for seven years and fine. The High Court held the extra judicial confessL:>ns made by Shiv Narain and Jlarbhajan Singh before R. K. Kapur (PW 41) the commander Border Security Fore~ as admissible in evidence before con\\'icting them and rejected the plea of c:ncounter on the Indo--Pakistan border. The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.\n\nAllowing the appeals under_ the Supreme Court (Enlargement of Crimin:l.J Appellate Jurisdiction) Act, 1971, the Court,\n\nHELD: (1) This was not a fit case whre the lligh Court should have -interfered with the acquittal of any of the appellants. The High Court ha~ not at all considered the reasons given by the Sessk1ns Judge for acquitting the accused. It has given its own reasons for convicting the appe11ants but that is not enough in an appeal against acquital. [205 B-C] _\n\n(2) As a Practical proposition, in an appe:tl against acquittal, it is alv.; ays necessary that the reasons given by the trial court for recording an acquittal should be examined by the High Court. If the conclusions of the trial court are not based upon any. evidence or they arl! such as no reasonable body of men, properly instructed in law can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court \\\\-'ill\n\nbe justified in taking a contrary view by giving its own reasons. It is not enough that it is just possible for the High Court to take a contrary view.\n\nWhile interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record. The lligh Court has fol1o\\ved these salctary principles in dealing \\Vith an appeal against 3cquittal. [204 G-H,\n\n205 A) . ·\n\n(3) In deciding whether a particular confe3sion attracts the frown of sec- -tion 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or pro- mise proceeding from a person in authority would operate in his mind.\n\nIn the instant case, the extra iudicial confessions~ by the i\"-'O accused Shiv \"Narain and Harbhajan Singh, have to be completely excludeU from consider- -ation being hit by s. 24 of the Evidence Act When the two accused were -questioned separately after several abortive attempts to secure confessions it cannot be said that there was no inducement, threat or promise of some kind.\n\n:[203 H-204 A, E] •\n\nA Obser~'ation :\n\nT_he itness cal?-not be relied up5ln by es?rt to a kind of fpecial pleading. in _his aid.\n\nTht? I.1ne of approach 1_n a cnm1nal c_ase in order to find justification for conv1ctton on shaky testimony by making a virtue of the inalertness of the police administration is not to be commended.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 178- B 179 and 228 of 1975 .\n\n. (From the Judgment aµd Order dated 10-4-1975 of the Punjab and Haryana High Court in Criminal Appeal No. 40 or 1972). ..\n\nFrank Anthony, Herjinder Singh and S. N. Singh, for appellant No. 1 in Cr!. A.178/75 and appellants in Crl. 179/75 and Appellants Nos. 1-2 in Crl. A.228/75.\n\nA. K. Sen, and Heriinder Singh for appellant No. 2 in Cd. A.173/ 75.\n\nR. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !ant No. 3 in Crl. A. No. 228/75.\n\n0. P. Sharma and Miss Kusum Chaudhury, for the respondents in D all the appeals.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.\n\nSatbir Singh was also convicted on the sole testimony of Puran Singh under saction 364 IPC and sentenced to rigorous imprisonment for seven years and fine.\n\nThe remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.\n\nThey had all earlier been acquitted by the Additional Sessions Judge, Amritsar.\n\nThis case throws a lurid light on smuggling activities at the international India-Pakistan border near Amritsar.\n\nAmongst the appellants (hereinafter to be descried as the accused) M.P. Singh was an Inspector of the Border Secuny Foce (BSF), Shiv Narain was a Sub-Inspector (BSF) and Harbhaian Smgh was a Constable (BSF). Accused Ajit Singh is the father of the two accused, Satbir Singh and .Paramjit Singh.\n\nAii.t S!ngh is alleged o be'.! big smuggler indulging m his smuggling acliv11ies at the India-Pak1staq border with his two sons and the other accused persons, namely, Darshan Singh, Arian Singh,. Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Smgh.\n\nIt is allege~ tha~ Inspector M:P.\n\nSingh, s. I. shiv Narain and Cos.tahle Harbhaian Sngh, al.o~!,\\ w.1th other BSF personnel were conmvmg at the smugglmg acliv1t1es of Ajit Singh and party and were reaping their illegal harvest. .\n\n_,,_\n\n. Shingara Singh and his son Hardip Singh and Kartar Singh are\n\nhe three deceased whose murders form the subject matter of this( case.\n\nWhile the dead bodies of Harelip Singh and Kartar Singh were found that of Shingara Singh was not available.\n\n' Puran Singh (PW 3) son of Shingara Singh (deceased) was a member of the gang of smugglers headed by accused Ajit Singh and in the course of smuggling activities there was a quarrel with regard to the sharing of money to the extent of Rs. 15,000/- which was said to be bis due and .which Ajit Singh and party were not paying.\n\nA few1 months prior to July 6, 1970, the date of occurrence, when accused\n\nSatbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector\n\nM.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold.\n\nThe gold with which Puran Singh fled away was then worth about Rs. 5 to 6 lakhs.\n\nMuy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car.\n\nHe did not then suspect anything.\n\nBut now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder\n\nSingh and Makhan Singh, had abducted his son Puran Singh over a dispute about the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him.\n\nOn receipt of this report a case under section 364 IPC was registered by S.I. Baldev Singh (PW 63) at Police Sation, Gharinda (Ex. P.P.Y.).\n\nJuly 7, 1970 : A report was sent to Police Station, Gharinda by accused Shiv Narain, S.I. (BSF) about an encounter of BSF with\n\nsmuQglers on the mid-night of July 6, 1970, on the border of India Pak'stan at Border Pillar No. JOO near Amritsar that \"two sikh young\n\nmen\" fall dead to the fire opened by the Border Security Force of the Indian side.\n\nJuly 17, 1970: The first information report (Ex. PPZ/Rl of the present case was registered by Police Station, Gharinda, mi the report dated July 12, 1970 (Ex. P.P.Z.) of D.S.P. Surjit Singh (PW 64)\n\nwhich, inter alia, disclosed :\n\n\"I heard a rumour on 8th July, 1970, on my return from casual leave that three persons namely Shingara Singh son of Inder Singh, Kartar Singh son of Mangat Singn and Hardip Singh son of Shingara Singh jats residents f Ranike Police Station Gharinda had been abducted fombly b/ Ajit Singh of Burj and his sons residents of village Burj, Police Station Gharinda and party from ner Cystal\n\nChowk, Amritsar and that they had been shown killed m an encounter in connivance with Border Security Force and Pak Rangers\".\n\nThis report of D.S.P. Surjit Singh has discounted the encounter story as a fib but yet it continued to be the defence of the accused. According to the trial c@urt \"the encounter version appears to be true\".\n\nWer~ the. three persons, Shingara Singh, Hardip Singh and Kartar Smgh, k1lle~ m a nencounter with the BSF or murdered in pursuance of a .conspiracy to abduct and murder ? While the first part of the question need not even be proved, the second part must ifeeas be proved to the hilt.\n\nThe prosecution .case further is that Puran Singh after having been taken away from his village was taken to the Haveli of Ajit Singh \"'.here he was asked about the gold which he had stolen away. Puran Smgh mformed the accused persons that he had delivered the gold to his brother, Hardip Singh.\n\nIt is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Sinoh and accused Shiv Narain who later on handed over him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to vilJagl!\n\nDial (Pakistan). Puran Singh was brought to the Indian side of the border on the night intervening 6th and 7th July, 1970, but was agam taken back to Pakistan where!rom he could manage to escape and cross over to the Indian side of border only on November 6, 1970, to figure as an eye witness to the murder of his father.\n\nIt is alleged that on July 6, 1970, Shingara Singh, Hardip Singh and Kartar Singh (all deceased) along with Harnam Sirigh (PW 5) went to Amritsar.\n\nShingara Singh and Harelip Singh had gone to attend court, Kartar Singh to sell his vegetables and Ha.rnam Singh to attend to his wife, Smt. Piaro, who was a patient in the V. J. l'Iospital.\n\nAfter being free from their work at about 1.00 p.m. the three deceased along with Harnam Singh (PW 5) went towards tbe V. J. Hospital.\n\nWhen they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling.\n\nThese persons were armed with guns and revolvers.\n\nThe accused came out of the vehicle and physically lifted Shingara Singh, Hardip Singh and Kartar Singh and whisked them away in the said vehicles.\n\nIt is alleged that the deceased persons were first taken to the Haveli of Ajit Singh in village Buri where they were belaboured and later cin~ blindfolded and tied, removed to the Inda-Pakistan border where on that night some goods were to be exchanged between the accused with Balkar Singh (PW 4) and the Pakistani smugglers. , Accused M. P.\n\nSingh was also present there.\n\nAt about mid-night all of them including accused Shiv Narain and accused Harbhajan Singh moved near Pillar No. 100. This party handed over Lt maunds of silver to Yakub and Shaffi, Pakistani smugglers and received gold in return Hardip Singh and Kartar Singh were brought by accused Satbir Singh and others towards Indian side of the border but Shingara Singh\n\nSATBIR SINGH v. PUNJAB ((j'oswami, J.) 199\n\nwas left behind with the Pakistani smugglers.\n\nBalkar Singh (PW 4) then enquired as to why Shingara Singh had been handed over to Pakistanis. At that moment accused Shiv Narain fired two shots with very light pistol.\n\nAccused Harbhajan Singh, accused\n\nM. P.\n\nSingh, accused Paramjit Singh and accused Satbir Singh also fired shots at Hardip Singh and Kartar Singh from a distance of 25 yards who then dropped dead.\n\nAccused J asbir Singh (absconder) cae there and untied their hand's and removed the cloth covermg therr eyes.\n\nA rifle was placed 'near the dead body of Hardip Singh and a K1rpan was placed near the dead body of Kartar Singh. Balkar\n\nSingh (PW 4) also heard the sound of a fire shot in Pakistan territory when A jit Singh (accused) said that Shingara Singh had also been killed.\n\nAJ>::ording to the prosecution to justify the killing of Hardip Singh and Kartar Singh, accused M. P. Singh, accused Shiv Narain and accused Harbhajan Singh with other officials of BSF, manipulated an encounter story and got a false case registered at Police Station, Gharinda, on July 7, 1970 (Ex. P.P. 0/i) on a \"ruqa\" having been sent by S.I. Shiv Narain (accused) falsely alleging, inter alia, that on a secret information having been recei•:ed by Inspector M. P.\n\nSingh (accused) that some smugglers would bring some goods from Pakistan to India they conducted an ambush behind Burj (Border Pillar) No. 100 on the night intervening 6th and 7th July, 1970, and during the process in defence the Naka party fired which resulted in killing of two persons who were subsequently identified as Hardip\n\nSingh and Kartair Singh.\n\nThe accused persons were charged under section 364/120B IPC for abducting Puran Singh.\n\nThey were also charged under section 364/120B IPC for abducting Shingara Singh, Hardip Singh and Kartar Singh.\n\nThey were further charged under section 302 /I 02B IPC for causing the death of Kartar Singh and Hardip Singh.\n\nThey were also charged under section 109 IPC for abetting the murder of Shingara Singh which offence was committed in consequence of the abetment.\n\nThe prosecution examined 68 witnesses.\n\nThe accused denied the charges and the BSF accused suggested a motive for the prosecution by alleging animus against the D.S.P. Surjit Singh (PW 64). According to them Kartar Singh and Hardip Singh were killed as a result of an encounter with smugglers on the border.\n\nThe Sessions Judge giving his reasons for not accepting the evidence of the eye witnesses and other material evidence acquitted all the accused.\n\nThe High Court on appeal confirmed the acquittal of two accused, namely, Pritam Singh and Mehar Singh, but convicted the appellants as mentioned above.\n\nWith regard to the charge under section 302/120B IPC the case will depend upon the evidence of Puran Singh (PW 3) and the extrajudicial confession by the accused, Shiv Narain and Harbhajan\n\nJ 4-240SCI/77 .\n\nSingh, before R. K. Kapnr (PW 41).\n\nWith regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh\n\n(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW\n\n46) with regard to the Roznamcha entry (Ex. PP. A). We may also note here that Puran Singh (PW 3) and Balkar Singh (PW 4) were the two eye witnesses to the murder and Balkar Singh (PW 4) was disbelieved both by the Sessions J mlge and the l ligh Court. Harnam Singh (PW 5) is an eye-witness to abduction.\n\nWe should also note that Gurdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions J udgc and the High Court. Harnam Singh (PW 5) who is the eye-witness to abduction was dispelieved by the Sessions Judge but partly believed by the High Court.\n\nIn the above state of the evidence Mr. Sharma appearing on behalf of the state rests his case on the evidence of Puran Singh (PW 3) and the extra-judicial confession made by the accused Shiv Narain and Harbhajan Singh before R. K. Kapur (PW 41) with regard to the murder charge under section 302/120B !PC. He also relies upon the Roznamcha and the recoveries.\n\nWe will therefore first examine the reasons given by the Sessions Judge for acquitting the accused.\n\nAfter narrating the facts deposed to by Puran Singh (PW 3) the Sessions Judge held that \"the story on the face of it appears to be false\".\n\nAccording to Puran Singh (PW 3) the accused took him away to Ajit Singh's Haveli and then to the Inda-Pakistan border only with a view to recover the gold which he had earlier managed to steal away. _The Sessions Judge took note of the fact that P1JJan Singh had told the accused that the gold was lying with his brother, Hardip Singh.\n\nIt was, therefore, inconceivable tbat this clue with regard to the gold would not be pursued by the accused and Harelip Singh would be left out and Puran Singh alone would be taken away.\n\nThis witness oven after he had seen the murder of his father Shingara Singh, on July 6, 1970, stayed in Pakistan for about four months without disclosing this fact to anybody nor did he communicate about it to any of his relations.\n\nAlthough this witness said that he crossep from Pakistan to India only on November 6, 1970, after the murder, and was arrested and interrogated by S. I. Jai Ram (PW 58) and was also prosecuted for crossing the border, there is no evidence from any police officer, nor even from S. I. Jai Ram (PW\n\n58). No documentary evidence, which would have been available if his statel1)cnt was true, was produced in the case.\n\nApart from that, this witness stated that he was arrested by S.I. Jai Ram and he narrted the entire occurrence to him.\n\nS. I. J ai Ram does not support him.\n\nOn the other hand he had earlier stated before the committing Magistrate that he did not tell anything about the iaid murders to S. I.\n\nJai Ram.\n\nThe Sessions Judge also note several discrepancies in his evidence and finally came to the conclusion that he was not actually present at the time of the murders nor was he abducted by the accused as alleged.\n\nSATB!R SINGH v. PUNJAB (Goswami, J.) 201\n\nThe High Court does not appear to have closely considered the reasons given by the SeS1Sions Judge for disbelieving the testimony of Puran Singh.\n\nIt is difficult to appreciate how the High Court can say tliat the statement of this witness \"seems to be quite natural\" in view of the infirmities pointed out by the Sessions Judge.\n\nAfter examining the endre discussion of the evidence of this witness by the High Court, we are not satisfied that the High Court was right in relying upon the testimony of this witness. It is pointed out that the High Court was not correct in observing that \"it is not disputed that he (Puran Singh) is being tried for having come to Indian territory on November 6, 1970 and the moment he entered the Indian territory, he was taken into custody and his statement was recorded by the police\". On the other hand the Sessions Judge found just to the contrary and there is no reference in the judgment of the High Court lo the discussion by the Sessions Judge with regard to this aspect.\n\nWe have next to see the reasons given by the Sessions Judge for disbelieving the testimony of Harnam Singh (PW 5). This witness gave evidence about the abduction of the three deceased from the Crystal Chowk, near V. J. Hospital, Amritsar. The witness is a near relation of the deceased and he admitted that when the three deceased were abducted he suspected that t'hc accused might inflict injuries on their person. Even so he did not go for police assistance nor did he inform even Mangal Singh (PW 17), father of the deceased Kartar Singh, about the occurrence although the latter was residing .with him in the same house.\n\nHe also did not ask the relations of the deceased to lodge any report with the police. Crystal Chowk is a busy commercial area where there are. shops and some residential houses and the shops were open at the time of the incident.\n\nEven so this witness stated that there were no shops or bazar near the place of occurrence. This witness named five accused persons including two abscondern and stated that he knew them by names about one year prior to the occurrence.\n\nSince he had named accused Paramjit Singh and accused Satbir Singh in the committing court he was asked there to idendfy these two accused.\n\nHe, however, wrongly pointed towards accused M. P.\n\nSingh as Paramjit Singh and accus\"d Pritam Singh as Satbir Singh.\n\nAccused M. P. Singh was not even alleged to be present at Amritsar at the time of abduction.\n\nAlthough this witness stated that he informed Kaba! Singh (PW 6) brother of Shingara Singh, Kaba] Singh did not corroborate him on this point.\n\nFurther, Harnam Singh (PW 5) states about abduction of the three deceased from Crystal Chowk.\n\nThe High Court accepts his evidence as being corroborated by witnesses regarding his presence at Amritsar with the three deceased persons. It is difficult to see how because his presence at Amritsar is proved the further fact about the abduction of the three deceased from Crystal Chowk is also established.\n\nThere is 110 corroboration whatsoe.ver of this part of the story.\n\nIf the Higl:t Court has to look for corroboration of the evidence of Harnam Singh even about his presence at Amritsar on its own reasoning, the principal part of the prosecution case about abduction depending upon his sole testimony cannot be held to be established.\n\nThe\n\nHigh Court also seeks to find corroboration of this part of' the case from Roznamcha of July 6, 1970 (Ex. P.P. A) wherein a certain information from an undisclosed source was received at 2.00 P .M. by Gurdial Sirigh (PW 10) to. the effect \"that there was some fight between some smugglers near Crystal Chowk or some legislator had been abducted''.\n\nThis information is hearsay in absence of the mformant.\n\nThe name of the informant is not even disclosed.\n\nApart from this, this Roznamcha does not corroborate Harnam Singh (PW\n\n5) with regard_ to his statement that the three deceased per'sons were abducted by the accused from Crystal Cho; vk.\n\nThe High Court did not fail to observe that the reasons given by the witness for his belated examination by the police as \"padding obviously .. at the instance of the police\".\n\nEven so, the High Court expiained away the fact cf Harnam Singh's not reporting to the police in a very unusual way.\n\nThe High Court observed firstly that it was natural for the witness not to be involved in the dispute of smugglers and secondly that there was no use informin_g the police as no petty police officer would take action against the international smugglers. The High Court went on to record that \"it appears in the present day admin_istration that no pet'!y police officer is likely to take responsibility in the matter of prosecuting international smugglers without having the blessings of the highest police officer in the district and even above''.\n\nWitnesses, like Harnam Singh, were, therefore, according to the High Court \"helpless\".\n\nWe cannot commend this line of approach in a criminal case in order to find iurisdiction for conviction on shaky testimony by making a virtue of the inalertness of the police administration.\n\nThe witness cannot be relied upon by resort to a kind of special pleading in his aid. We find that the High Court has not given any cogent reason for taking a different view with regarding to the appreciation of evidence of this witness by the Sessions Judge.\n\nAbout recovery of fite-arms and gold at the instance of some of the accused, the case rested on the evidence of the police officers alone. The other search witnesses were declared hostile on account of their not supporting the prosecution.\n\nThe Sessions Judge did not feel it safe to act upon the testimony of police witnesses including Inspector Bachan Singh (PW 68) in the matter of disclosure statement as well as of recovery of tbe fire-arms and of gold in absence of corroboration by independent witnesses.\n\nThe High Court held that there was no reason to disbelieve the police witnesses.\n\nBut when both the Sessions Judge and the High Court seem to be in 3Jlreement in finding that there was \"padping\" by the police in respect of evidence produced in the case, it could not be said that the Sessions Judge was so grievously in error that contrary appreciation of the evidence was compelling under the circumstances.\n\nThere is also the evidence with regard to extra-jui!icial confessions said to have been made by the accused Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41), the Commandant of the Border Security Force.\n\nThe Sessions Judge has considered that evidence as inadmissible under section 24 of the Evidence Act.\n\nThe High Court, differing from the opinion of the Sessions Judge, A held the extra-judicial confession as admissible in e_vidence since, according to the High Court, \"it cannot be held that he (Kapur) gave .any threat, inducement or promise to \\he accused\".\n\nThe High Court -Observed :\n\n\"When this (warning) was conveyed to the accused by B Shri Handa D.S.P., the accused still stuck to the. encounter versions and made their statements in writing supporting the encounter version.\n\nThe said threat of Shri Kapur P.W. did not work and the accused stuck to their old story ..... .\n\nIt was on 19th July, 1970 that Shiv Narain and Harbhajan Singh were questioned separately when he told them that they should come. out with the truth otherwise they would them- C selves be responsible for their actions and if they had done anything wrong, they wonld go to jail. Instead of giving them any promise of help, he in fact told them that if they were in the wrong, they would go to jail. . . . From the statement of this witness, which I have gone through minutely, it Is difficnlt to hold that he gave any induceme!!l, tl1r.eat or promise to the accused persons and that the accused persons D made the confessions in pursuance thereof'.\n\n. Section 24 of tl1e Indian Evidence Act provides that a confession made by an ac:_cused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any induceiiient, threat or promise, having reference to the charge .against the accused person, proceeding from a person in authority and E sufficient, in the opinion of the court, to give the accused person grounds, which would appear to_ him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedingsa.!Jllin.st him.\n\nIndeed, Mr. Kapur was a person in authority being the Commandant of the rank of a Senior Superintendent of Police and the confess- F ing accused were his subordinates.\n\nApart from thi~, it appears from his evidence that the oral confessional statements were not readily forthcoming from, the accused persons but they had to be interrogated <Jn several occasions. He further advised D.S.P. Handa to interrogate them \"with a warning that they should state the truth otherwise they would not be supported by me\".\n\nMr. Kapur further admitted in 11is cross-examination that he \"did tell Mr. Handa on telephone on G 10th July, 1970 that he should give a warning to Border Security Force people to come out with truth otherwise they themselves would be responsible for their actions\". Mr .. Kapur also himself \"enquired\n\nfrom M. P. Singh and Shiv Narain accused about the matter on 19th July, 1970 telli_ng them that now that the case has been registered they should state the truth\" ..\n\nIn deciding whether a particular confession attracts the frown of 'Section 24 of the Evidence Act, the question has to be considered\n\nfrom the point of view of the confessing accused as to how th_e inducement, threat or promise proceeding from a person in authonty would\n\noperat() in his mind.\n\nIt is true that Mr. Kapur, in his evidence, denied having held out to the accused any inducement, threat or promise.\n\nWe, howe_ver, find that on July 17, 1970, the police gave a go by to the encounter story and the present case was registered against the accused.\n\nTwo days after, on July 19, 1970, Mr. Kapur havi11g a!rea, dy failed to _get any confessional statement from the accused through other agency, took upon himself to question accus<;.\\I Shiv Narain and Harbhajan Singh\n\nseparately and this time he succeeded in securing confessional statements.\n\nWhen the two accused were questioned separately after several abortive attempts to secure confessions, can it be said that there was no inducement, threat or promise of some kind proceeding from Mr. Kapur to have made any impact on their minds resulting in the confessions ?\n\nMr. Kapur having stated to the accus.ed on July 19, 1970, that \"now that the case has been registered they should state the truth\", it is difficult to hold that by this statement he would not gener ate in the minds of the accused some hope and assurance that if they told the \"truth\" Jhey would receive his \"support\" which he had earlier conveyed to them through D.S.P. Handa. It is true that in the course of cross-examination Mr. Kapur stated that he h_ad told the accused that if they had done anything wrong they would go to jail. But hav ing regard to the effect of the totality of the evidence of this witness, we are unable to hold 'that the confessions made by the accused before Mr. Kapur. on JUiy 19, 1970, were free from he taint of infirmity with.in the mischief of section 24 of the Evidence Act. We are, there fore, deady of opinion that the extra-judicial confessions by the two accu.<ed, Shiv Narain and Harbhajan Singh, have to be completely excluded from consideration being hit \\Jy section 24 of the Evidence Act.\n\nSimilarly not much can be made. of abscondence of certain accused when other material evidence conuecting the accused with the crime has failed in this case.\n\nA serious infirmity in the judgment of the High Court is that it has not at all considered the reasons given by the Sessions Judge for acquitting the accused.\n\nThe High Court has given its own reasons for convicting the appellants but that is not enough in an appeal against acquittal.\n\nAs a practical proposition, in an appeal against acq_uittal, it is al~ ways necessary that the reasons given by the trial court for recordinrr an acquittal should be examined by the High Court. If the conclusion~ of the trial court are not based upon any evidenca or they are such as no reasonable body of men, properly instmcted in law can reach on the evidence, or they are so palpably wrong as lo shok the sens~ of justice, the High Court will be justified in taking a contrary view by giv!ng its own reasons. It is not en~:mgh that it is just possible tor the High Court to take a contrary view.\n\nWhile interfering wittr acquittal the judgment of the High Court should demonstrate clearly\n\nthe unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record.\n\nWe are unable to say in these appeals that the High Court has followed these safotary principles in dealing with an appeal against acquittal.\n\nWe may also observe that the High Court need no! l!ave mentioned the fact tht , the Sessions Judge wa:s \"suspended on account of corruption charges\". If we may say so, it was absolutely unnecessary\n\nto refer to this in disposing of the appeal,\n\nWe are clearly of opinion that this was not a fit case where the High Court should have interfered with the acquittal of any of the appellants.\n\nThe appeals are allowed.\n\nThe judgment and crder of the High Court are 'set aside and the appellants are acquitted of all the charges.\n\nThe appellnts, Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narajn and M. P. Singh shall be released from detention forthwith.\n\nThe remaining appellants, Ajit Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh, who have been on bail shall be discharged from their bail bonds.\n\nS.R.\n\nAppeals allowed.", "total_entities": 187, "entities": [{"text": "SATBIR SINGH & ANR. ETC. ETC", "label": "PETITIONER", "start_char": 5, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "SATBIR SINGH & ANR. ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 39, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "P. K.· GoSWAMI", "label": "JUDGE", "start_char": 92, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 133, "end_char": 159, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 378", "label": "PROVISION", "start_char": 184, "end_char": 190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 417", "label": "PROVISION", "start_char": 206, "end_char": 212, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 24", "label": "PROVISION", "start_char": 329, "end_char": 334, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 24", "label": "PROVISION", "start_char": 478, "end_char": 483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 544, "end_char": 550, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional Sessions Judge, Amritsar", "label": "COURT", "start_char": 593, "end_char": 628, "source": "ner", "metadata": {"in_sentence": "All the accused were tiied for offences u/s. 302/120B and 364 J.P.C., but acquitted by the Additional Sessions Judge, Amritsar."}}, {"text": "Paramjit Singh", "label": "LAWYER", "start_char": 729, "end_char": 743, "source": "ner", "metadata": {"in_sentence": "On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life.", "canonical_name": "P.aramjit Singh"}}, {"text": "Harbhajan Singh", "label": "PETITIONER", "start_char": 745, "end_char": 760, "source": "ner", "metadata": {"in_sentence": "On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life.", "canonical_name": "Jlarbhajan Singh"}}, {"text": "Shiv Narain", "label": "PETITIONER", "start_char": 762, "end_char": 773, "source": "ner", "metadata": {"in_sentence": "On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life.", "canonical_name": "Shiv \"Narain"}}, {"text": "~I. P. Singh", "label": "PETITIONER", "start_char": 778, "end_char": 790, "source": "ner", "metadata": {"in_sentence": "On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life.", "canonical_name": "~I. P. Singh"}}, {"text": "S. 302", "label": "PROVISION", "start_char": 799, "end_char": 805, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 811, "end_char": 816, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Satbir Singh", "label": "OTHER_PERSON", "start_char": 863, "end_char": 875, "source": "ner", "metadata": {"in_sentence": "Satbir Singh was also convicted on the sole testimony of Puran Singh (PW3) u/s. 364 I.P.C. and sentenced to rigorous imprisonment for seven years and fine.", "canonical_name": "J asbir Singh"}}, {"text": "Puran Singh", "label": "OTHER_PERSON", "start_char": 920, "end_char": 931, "source": "ner", "metadata": {"in_sentence": "Satbir Singh was also convicted on the sole testimony of Puran Singh under saction 364 IPC and sentenced to rigorous imprisonment for seven years and fine.", "canonical_name": "Puran Singh"}}, {"text": "s. 364", "label": "PROVISION", "start_char": 940, "end_char": 946, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 947, "end_char": 952, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Jlarbhajan Singh", "label": "PETITIONER", "start_char": 1095, "end_char": 1111, "source": "ner", "metadata": {"in_sentence": "The High Court held the extra judicial confessL:>ns made by Shiv Narain and Jlarbhajan Singh before R. K. Kapur (PW 41) the commander Border Security Fore~ as admissible in evidence before con\\'icting them and rejected the plea of c:ncounter on the Indo--Pakistan border.", "canonical_name": "Jlarbhajan Singh"}}, {"text": "R. K. Kapur", "label": "WITNESS", "start_char": 1119, "end_char": 1130, "source": "ner", "metadata": {"in_sentence": "The High Court held the extra judicial confessL:>ns made by Shiv Narain and Jlarbhajan Singh before R. K. Kapur (PW 41) the commander Border Security Fore~ as admissible in evidence before con\\'icting them and rejected the plea of c:ncounter on the Indo--Pakistan border."}}, {"text": "Arjan Singh", "label": "PETITIONER", "start_char": 1377, "end_char": 1388, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.", "canonical_name": "Arjan Singh"}}, {"text": "Baghal Singh", "label": "PETITIONER", "start_char": 1390, "end_char": 1402, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.", "canonical_name": "Baghal Singh"}}, {"text": "Tara Singh", "label": "PETITIONER", "start_char": 1404, "end_char": 1414, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.", "canonical_name": "Tara Singh"}}, {"text": "Dial Singh", "label": "PETITIONER", "start_char": 1416, "end_char": 1426, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.", "canonical_name": "Dial Singh"}}, {"text": "Bachan Singh", "label": "PETITIONER", "start_char": 1428, "end_char": 1440, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine.", "canonical_name": "Baghal Singh"}}, {"text": "l\\talook Singh", "label": "OTHER_PERSON", "start_char": 1445, "end_char": 1459, "source": "ner", "metadata": {"in_sentence": "The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years\n\nwith fine."}}, {"text": "s. 364", "label": "PROVISION", "start_char": 1463, "end_char": 1469, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Supreme Court (Enlargement of Crimin:l.J Appellate Jurisdiction) Act, 1971", "label": "COURT", "start_char": 1588, "end_char": 1662, "source": "ner", "metadata": {"in_sentence": "Allowing the appeals under_ the Supreme Court (Enlargement of Crimin:l.J Appellate Jurisdiction) Act, 1971, the Court,\n\nHELD: (1) This was not a fit case whre the lligh Court should have -interfered with the acquittal of any of the appellants."}}, {"text": "Shiv \"Narain", "label": "PETITIONER", "start_char": 3347, "end_char": 3359, "source": "ner", "metadata": {"in_sentence": "In the instant case, the extra iudicial confessions~ by the i\"-'O accused Shiv \"Narain and Harbhajan Singh, have to be completely excludeU from consider- -ation being hit by s. 24 of the Evidence Act When the two accused were -questioned separately after several abortive attempts to secure confessions it cannot be said that there was no inducement, threat or promise of some kind.", "canonical_name": "Shiv \"Narain"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 3447, "end_char": 3452, "source": "regex", "metadata": {"statute": null}}, {"text": "Frank Anthony", "label": "OTHER_PERSON", "start_char": 4196, "end_char": 4209, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, Herjinder Singh and S. N. Singh, for appellant No."}}, {"text": "Herjinder Singh", "label": "LAWYER", "start_char": 4211, "end_char": 4226, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, Herjinder Singh and S. N. Singh, for appellant No.", "canonical_name": "Herjinder Singh"}}, {"text": "S. N. Singh", "label": "LAWYER", "start_char": 4231, "end_char": 4242, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, Herjinder Singh and S. N. Singh, for appellant No."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 4354, "end_char": 4363, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, and Heriinder Singh for appellant No."}}, {"text": "Heriinder Singh", "label": "LAWYER", "start_char": 4369, "end_char": 4384, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, and Heriinder Singh for appellant No.", "canonical_name": "Herjinder Singh"}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 4424, "end_char": 4435, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !"}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4437, "end_char": 4451, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !"}}, {"text": "Manju Malhotra", "label": "LAWYER", "start_char": 4461, "end_char": 4475, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !"}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 4525, "end_char": 4534, "source": "ner", "metadata": {"in_sentence": "P. Sharma and Miss Kusum Chaudhury, for the respondents in D all the appeals."}}, {"text": "Kusum Chaudhury", "label": "LAWYER", "start_char": 4544, "end_char": 4559, "source": "ner", "metadata": {"in_sentence": "P. Sharma and Miss Kusum Chaudhury, for the respondents in D all the appeals."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 4648, "end_char": 4655, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life."}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act", "label": "STATUTE", "start_char": 4685, "end_char": 4751, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 4810, "end_char": 4842, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life."}}, {"text": "P.aramjit Singh", "label": "LAWYER", "start_char": 4892, "end_char": 4907, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.", "canonical_name": "P.aramjit Singh"}}, {"text": "Harbhajan Singh", "label": "PETITIONER", "start_char": 4909, "end_char": 4924, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.", "canonical_name": "Jlarbhajan Singh"}}, {"text": "Shiv Narain", "label": "PETITIONER", "start_char": 4926, "end_char": 4937, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.", "canonical_name": "Shiv \"Narain"}}, {"text": "M. P. Singh", "label": "PETITIONER", "start_char": 4942, "end_char": 4953, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.", "canonical_name": "~I. P. Singh"}}, {"text": "section 302", "label": "PROVISION", "start_char": 4961, "end_char": 4972, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 4979, "end_char": 4996, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "IPC", "label": "STATUTE", "start_char": 5132, "end_char": 5135, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ajit Singh", "label": "PETITIONER", "start_char": 5234, "end_char": 5244, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "P.aramjit Singh"}}, {"text": "Ddtshan Singh", "label": "PETITIONER", "start_char": 5246, "end_char": 5259, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine."}}, {"text": "Arjan Singh", "label": "PETITIONER", "start_char": 5261, "end_char": 5272, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Arjan Singh"}}, {"text": "Baghal Singh", "label": "PETITIONER", "start_char": 5274, "end_char": 5286, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Baghal Singh"}}, {"text": "Tara Singh", "label": "PETITIONER", "start_char": 5288, "end_char": 5298, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Tara Singh"}}, {"text": "Dial Singh", "label": "PETITIONER", "start_char": 5300, "end_char": 5310, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Dial Singh"}}, {"text": "Bachaa Singh", "label": "PETITIONER", "start_char": 5312, "end_char": 5324, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Baghal Singh"}}, {"text": "Malook Singh", "label": "PETITIONER", "start_char": 5329, "end_char": 5341, "source": "ner", "metadata": {"in_sentence": "The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.", "canonical_name": "Malook Singh"}}, {"text": "section 364", "label": "PROVISION", "start_char": 5364, "end_char": 5375, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 5376, "end_char": 5379, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Amritsar", "label": "GPE", "start_char": 5626, "end_char": 5634, "source": "ner", "metadata": {"in_sentence": "This case throws a lurid light on smuggling activities at the international India-Pakistan border near Amritsar."}}, {"text": "M.P. Singh", "label": "PETITIONER", "start_char": 5704, "end_char": 5714, "source": "ner", "metadata": {"in_sentence": "Amongst the appellants (hereinafter to be descried as the accused) M.P. Singh was an Inspector of the Border Secuny Foce (BSF), Shiv Narain was a Sub-Inspector (BSF) and Harbhaian Smgh was a Constable (BSF).", "canonical_name": "~I. P. Singh"}}, {"text": "Harbhaian Smgh", "label": "PETITIONER", "start_char": 5807, "end_char": 5821, "source": "ner", "metadata": {"in_sentence": "Amongst the appellants (hereinafter to be descried as the accused) M.P. Singh was an Inspector of the Border Secuny Foce (BSF), Shiv Narain was a Sub-Inspector (BSF) and Harbhaian Smgh was a Constable (BSF).", "canonical_name": "Jlarbhajan Singh"}}, {"text": "Ajit Singh", "label": "LAWYER", "start_char": 5853, "end_char": 5863, "source": "ner", "metadata": {"in_sentence": "Accused Ajit Singh is the father of the two accused, Satbir Singh and .Paramjit Singh.", "canonical_name": "P.aramjit Singh"}}, {"text": ".Paramjit Singh", "label": "LAWYER", "start_char": 5915, "end_char": 5930, "source": "ner", "metadata": {"in_sentence": "Accused Ajit Singh is the father of the two accused, Satbir Singh and .Paramjit Singh.", "canonical_name": "P.aramjit Singh"}}, {"text": "Darshan Singh", "label": "OTHER_PERSON", "start_char": 6100, "end_char": 6113, "source": "ner", "metadata": {"in_sentence": "big smuggler indulging m his smuggling acliv11ies at the India-Pak1staq border with his two sons and the other accused persons, namely, Darshan Singh, Arian Singh,."}}, {"text": "Arian Singh", "label": "PETITIONER", "start_char": 6115, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "big smuggler indulging m his smuggling acliv11ies at the India-Pak1staq border with his two sons and the other accused persons, namely, Darshan Singh, Arian Singh,.", "canonical_name": "Arjan Singh"}}, {"text": "Malook Smgh", "label": "PETITIONER", "start_char": 6184, "end_char": 6195, "source": "ner", "metadata": {"in_sentence": "Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Smgh.", "canonical_name": "Malook Singh"}}, {"text": "M:P.\n\nSingh", "label": "JUDGE", "start_char": 6227, "end_char": 6238, "source": "ner", "metadata": {"in_sentence": "It is allege~ tha~ Inspector M:P.\n\nSingh, s. I. shiv Narain and Cos.tahle Harbhaian Sngh, al.o~!,\\ w.1th other BSF personnel were conmvmg at the smugglmg acliv1t1es of Ajit Singh and party and were reaping their illegal harvest. ."}}, {"text": "BSF", "label": "ORG", "start_char": 6309, "end_char": 6312, "source": "ner", "metadata": {"in_sentence": "It is allege~ tha~ Inspector M:P.\n\nSingh, s. I. shiv Narain and Cos.tahle Harbhaian Sngh, al.o~!,\\ w.1th other BSF personnel were conmvmg at the smugglmg acliv1t1es of Ajit Singh and party and were reaping their illegal harvest. ."}}, {"text": "Shingara Singh", "label": "PETITIONER", "start_char": 6438, "end_char": 6452, "source": "ner", "metadata": {"in_sentence": "Shingara Singh and his son Hardip Singh and Kartar Singh are\n\nhe three deceased whose murders form the subject matter of this( case.", "canonical_name": "Shingara Singh"}}, {"text": "Hardip Singh", "label": "OTHER_PERSON", "start_char": 6465, "end_char": 6477, "source": "ner", "metadata": {"in_sentence": "Shingara Singh and his son Hardip Singh and Kartar Singh are\n\nhe three deceased whose murders form the subject matter of this( case.", "canonical_name": "Harelip Singh"}}, {"text": "Kartar Singh", "label": "OTHER_PERSON", "start_char": 6482, "end_char": 6494, "source": "ner", "metadata": {"in_sentence": "Shingara Singh and his son Hardip Singh and Kartar Singh are\n\nhe three deceased whose murders form the subject matter of this( case.", "canonical_name": "Kartair Singh"}}, {"text": "Harelip Singh", "label": "OTHER_PERSON", "start_char": 6597, "end_char": 6610, "source": "ner", "metadata": {"in_sentence": "While the dead bodies of Harelip Singh and Kartar Singh were found that of Shingara Singh was not available.", "canonical_name": "Harelip Singh"}}, {"text": "Shingara Singh", "label": "PETITIONER", "start_char": 6647, "end_char": 6661, "source": "ner", "metadata": {"in_sentence": "While the dead bodies of Harelip Singh and Kartar Singh were found that of Shingara Singh was not available.", "canonical_name": "Shingara Singh"}}, {"text": "July 6, 1970", "label": "DATE", "start_char": 7033, "end_char": 7045, "source": "ner", "metadata": {"in_sentence": "A few1 months prior to July 6, 1970, the date of occurrence, when accused\n\nSatbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector\n\nM.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold."}}, {"text": "Jasbir Singh", "label": "OTHER_PERSON", "start_char": 7099, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "A few1 months prior to July 6, 1970, the date of occurrence, when accused\n\nSatbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector\n\nM.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold.", "canonical_name": "J asbir Singh"}}, {"text": "Pakistan", "label": "GPE", "start_char": 7222, "end_char": 7230, "source": "ner", "metadata": {"in_sentence": "A few1 months prior to July 6, 1970, the date of occurrence, when accused\n\nSatbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector\n\nM.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold."}}, {"text": "S.I. Shiv Narain", "label": "OTHER_PERSON", "start_char": 7302, "end_char": 7318, "source": "ner", "metadata": {"in_sentence": "A few1 months prior to July 6, 1970, the date of occurrence, when accused\n\nSatbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector\n\nM.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold."}}, {"text": "Muy 20, 1970", "label": "DATE", "start_char": 7503, "end_char": 7515, "source": "ner", "metadata": {"in_sentence": "Muy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car."}}, {"text": "Gharinda", "label": "GPE", "start_char": 7585, "end_char": 7593, "source": "ner", "metadata": {"in_sentence": "Muy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car."}}, {"text": "Satbir Sin", "label": "OTHER_PERSON", "start_char": 7744, "end_char": 7754, "source": "ner", "metadata": {"in_sentence": "Muy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car.", "canonical_name": "J asbir Singh"}}, {"text": "May 6, 1970", "label": "DATE", "start_char": 7793, "end_char": 7804, "source": "ner", "metadata": {"in_sentence": "Muy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car."}}, {"text": "Burj", "label": "GPE", "start_char": 7966, "end_char": 7970, "source": "ner", "metadata": {"in_sentence": "But now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder\n\nSingh and Makhan Singh, had abducted his son Puran Singh over a dispute about the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him."}}, {"text": "Rajinder\n\nSingh", "label": "OTHER_PERSON", "start_char": 7972, "end_char": 7987, "source": "ner", "metadata": {"in_sentence": "But now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder\n\nSingh and Makhan Singh, had abducted his son Puran Singh over a dispute about the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him."}}, {"text": "Makhan Singh", "label": "OTHER_PERSON", "start_char": 7992, "end_char": 8004, "source": "ner", "metadata": {"in_sentence": "But now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder\n\nSingh and Makhan Singh, had abducted his son Puran Singh over a dispute about the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him."}}, {"text": "section 364", "label": "PROVISION", "start_char": 8204, "end_char": 8215, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 8216, "end_char": 8219, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S.I. Baldev Singh", "label": "WITNESS", "start_char": 8238, "end_char": 8255, "source": "ner", "metadata": {"in_sentence": "On receipt of this report a case under section 364 IPC was registered by S.I. Baldev Singh (PW 63) at Police Sation, Gharinda (Ex."}}, {"text": "July 7, 1970", "label": "DATE", "start_char": 8306, "end_char": 8318, "source": "ner", "metadata": {"in_sentence": "July 7, 1970 : A report was sent to Police Station, Gharinda by accused Shiv Narain, S.I. (BSF) about an encounter of BSF with\n\nsmuQglers on the mid-night of July 6, 1970, on the border of India Pak'stan at Border Pillar No."}}, {"text": "Police Station, Gharinda", "label": "ORG", "start_char": 8342, "end_char": 8366, "source": "ner", "metadata": {"in_sentence": "July 7, 1970 : A report was sent to Police Station, Gharinda by accused Shiv Narain, S.I. (BSF) about an encounter of BSF with\n\nsmuQglers on the mid-night of July 6, 1970, on the border of India Pak'stan at Border Pillar No."}}, {"text": "July 17, 1970", "label": "DATE", "start_char": 8655, "end_char": 8668, "source": "ner", "metadata": {"in_sentence": "July 17, 1970: The first information report (Ex."}}, {"text": "July 12, 1970", "label": "DATE", "start_char": 8795, "end_char": 8808, "source": "ner", "metadata": {"in_sentence": "PPZ/Rl of the present case was registered by Police Station, Gharinda, mi the report dated July 12, 1970 (Ex."}}, {"text": "D.S.P. Surjit Singh", "label": "WITNESS", "start_char": 8825, "end_char": 8844, "source": "ner", "metadata": {"in_sentence": "P.P.Z.) of D.S.P. Surjit Singh (PW 64)\n\nwhich, inter alia, disclosed :\n\n\"I heard a rumour on 8th July, 1970, on my return from casual leave that three persons namely Shingara Singh son of Inder Singh, Kartar Singh son of Mangat Singn and Hardip Singh son of Shingara Singh jats residents f Ranike Police Station Gharinda had been abducted fombly b/ Ajit Singh of Burj and his sons residents of village Burj, Police Station Gharinda and party from ner Cystal\n\nChowk, Amritsar and that they had been shown killed m an encounter in connivance with Border Security Force and Pak Rangers\"."}}, {"text": "8th July, 1970", "label": "DATE", "start_char": 8907, "end_char": 8921, "source": "ner", "metadata": {"in_sentence": "P.P.Z.) of D.S.P. Surjit Singh (PW 64)\n\nwhich, inter alia, disclosed :\n\n\"I heard a rumour on 8th July, 1970, on my return from casual leave that three persons namely Shingara Singh son of Inder Singh, Kartar Singh son of Mangat Singn and Hardip Singh son of Shingara Singh jats residents f Ranike Police Station Gharinda had been abducted fombly b/ Ajit Singh of Burj and his sons residents of village Burj, Police Station Gharinda and party from ner Cystal\n\nChowk, Amritsar and that they had been shown killed m an encounter in connivance with Border Security Force and Pak Rangers\"."}}, {"text": "D.S.P. Surjit Singh", "label": "OTHER_PERSON", "start_char": 9415, "end_char": 9434, "source": "ner", "metadata": {"in_sentence": "This report of D.S.P. Surjit Singh has discounted the encounter story as a fib but yet it continued to be the defence of the accused."}}, {"text": "Kartar Smgh", "label": "OTHER_PERSON", "start_char": 9666, "end_char": 9677, "source": "ner", "metadata": {"in_sentence": "three persons, Shingara Singh, Hardip Singh and Kartar Smgh, k1lle~ m a nencounter with the BSF or murdered in pursuance of a .conspiracy to abduct and murder ?", "canonical_name": "Kartair Singh"}}, {"text": "Puran Smgh", "label": "OTHER_PERSON", "start_char": 10089, "end_char": 10099, "source": "ner", "metadata": {"in_sentence": "Puran Smgh mformed the accused persons that he had delivered the gold to his brother, Hardip Singh.", "canonical_name": "Puran Singh"}}, {"text": "M.P. Sinoh", "label": "PETITIONER", "start_char": 10278, "end_char": 10288, "source": "ner", "metadata": {"in_sentence": "It is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Sinoh and accused Shiv Narain who later on handed over him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to vilJagl!", "canonical_name": "~I. P. Singh"}}, {"text": "Shaffi", "label": "OTHER_PERSON", "start_char": 10345, "end_char": 10351, "source": "ner", "metadata": {"in_sentence": "It is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Sinoh and accused Shiv Narain who later on handed over him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to vilJagl!"}}, {"text": "Yakub", "label": "OTHER_PERSON", "start_char": 10356, "end_char": 10361, "source": "ner", "metadata": {"in_sentence": "It is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Sinoh and accused Shiv Narain who later on handed over him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to vilJagl!"}}, {"text": "6th and 7th July, 1970", "label": "DATE", "start_char": 10522, "end_char": 10544, "source": "ner", "metadata": {"in_sentence": "Puran Singh was brought to the Indian side of the border on the night intervening 6th and 7th July, 1970, but was agam taken back to Pakistan where!rom he could manage to escape and cross over to the Indian side of border only on November 6, 1970, to figure as an eye witness to the murder of his father."}}, {"text": "November 6, 1970", "label": "DATE", "start_char": 10670, "end_char": 10686, "source": "ner", "metadata": {"in_sentence": "Puran Singh was brought to the Indian side of the border on the night intervening 6th and 7th July, 1970, but was agam taken back to Pakistan where!rom he could manage to escape and cross over to the Indian side of border only on November 6, 1970, to figure as an eye witness to the murder of his father."}}, {"text": "Harnam Sirigh", "label": "WITNESS", "start_char": 10854, "end_char": 10867, "source": "ner", "metadata": {"in_sentence": "It is alleged that on July 6, 1970, Shingara Singh, Hardip Singh and Kartar Singh (all deceased) along with Harnam Sirigh (PW 5) went to Amritsar."}}, {"text": "Ha.rnam Singh", "label": "OTHER_PERSON", "start_char": 10993, "end_char": 11006, "source": "ner", "metadata": {"in_sentence": "Shingara Singh and Harelip Singh had gone to attend court, Kartar Singh to sell his vegetables and Ha.rnam Singh to attend to his wife, Smt.", "canonical_name": "Ha.rnam Singh"}}, {"text": "Piaro", "label": "OTHER_PERSON", "start_char": 11035, "end_char": 11040, "source": "ner", "metadata": {"in_sentence": "Piaro, who was a patient in the V. J. l'Iospital."}}, {"text": "V. J. l'Iospital", "label": "ORG", "start_char": 11067, "end_char": 11083, "source": "ner", "metadata": {"in_sentence": "Piaro, who was a patient in the V. J. l'Iospital."}}, {"text": "Harnam Singh", "label": "WITNESS", "start_char": 11168, "end_char": 11180, "source": "ner", "metadata": {"in_sentence": "After being free from their work at about 1.00 p.m. the three deceased along with Harnam Singh (PW 5) went towards tbe V. J. Hospital."}}, {"text": "V. J. Hospital", "label": "ORG", "start_char": 11205, "end_char": 11219, "source": "ner", "metadata": {"in_sentence": "After being free from their work at about 1.00 p.m. the three deceased along with Harnam Singh (PW 5) went towards tbe V. J. Hospital."}}, {"text": "Vijay Hospital", "label": "ORG", "start_char": 11272, "end_char": 11286, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling."}}, {"text": "Satara", "label": "PETITIONER", "start_char": 11431, "end_char": 11437, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling."}}, {"text": "Baghal Sinoh", "label": "PETITIONER", "start_char": 11483, "end_char": 11495, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling.", "canonical_name": "Baghal Singh"}}, {"text": "Pritn (Pritam Singh", "label": "OTHER_PERSON", "start_char": 11583, "end_char": 11602, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling."}}, {"text": "Malook Singh", "label": "PETITIONER", "start_char": 11625, "end_char": 11637, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling.", "canonical_name": "Malook Singh"}}, {"text": "Pamma '>id Malkiat", "label": "ORG", "start_char": 11705, "end_char": 11723, "source": "ner", "metadata": {"in_sentence": "When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling."}}, {"text": "Buri", "label": "GPE", "start_char": 12039, "end_char": 12043, "source": "ner", "metadata": {"in_sentence": "It is alleged that the deceased persons were first taken to the Haveli of Ajit Singh in village Buri where they were belaboured and later cin~ blindfolded and tied, removed to the Inda-Pakistan border where on that night some goods were to be exchanged between the accused with Balkar Singh (PW 4) and the Pakistani smugglers. ,"}}, {"text": "Balkar Singh", "label": "WITNESS", "start_char": 12221, "end_char": 12233, "source": "ner", "metadata": {"in_sentence": "It is alleged that the deceased persons were first taken to the Haveli of Ajit Singh in village Buri where they were belaboured and later cin~ blindfolded and tied, removed to the Inda-Pakistan border where on that night some goods were to be exchanged between the accused with Balkar Singh (PW 4) and the Pakistani smugglers. ,"}}, {"text": "M. P.\n\nSingh", "label": "PETITIONER", "start_char": 12280, "end_char": 12292, "source": "ner", "metadata": {"in_sentence": "Accused M. P.\n\nSingh was also present there.", "canonical_name": "~I. P. Singh"}}, {"text": "J asbir Singh", "label": "OTHER_PERSON", "start_char": 13146, "end_char": 13159, "source": "ner", "metadata": {"in_sentence": "Accused J asbir Singh (absconder) cae there and untied their hand's and removed the cloth covermg therr eyes.", "canonical_name": "J asbir Singh"}}, {"text": "Balkar\n\nSingh", "label": "WITNESS", "start_char": 13364, "end_char": 13377, "source": "ner", "metadata": {"in_sentence": "Balkar\n\nSingh (PW 4) also heard the sound of a fire shot in Pakistan territory when A jit Singh (accused) said that Shingara Singh had also been killed."}}, {"text": "A jit Singh", "label": "LAWYER", "start_char": 13448, "end_char": 13459, "source": "ner", "metadata": {"in_sentence": "Balkar\n\nSingh (PW 4) also heard the sound of a fire shot in Pakistan territory when A jit Singh (accused) said that Shingara Singh had also been killed.", "canonical_name": "P.aramjit Singh"}}, {"text": "M. P. Singh", "label": "PETITIONER", "start_char": 13614, "end_char": 13625, "source": "ner", "metadata": {"in_sentence": "AJ>::ording to the prosecution to justify the killing of Hardip Singh and Kartar Singh, accused M. P. Singh, accused Shiv Narain and accused Harbhajan Singh with other officials of BSF, manipulated an encounter story and got a false case registered at Police Station, Gharinda, on July 7, 1970 (Ex.", "canonical_name": "~I. P. Singh"}}, {"text": "India", "label": "GPE", "start_char": 14063, "end_char": 14068, "source": "ner", "metadata": {"in_sentence": "P.P. 0/i) on a \"ruqa\" having been sent by S.I. Shiv Narain (accused) falsely alleging, inter alia, that on a secret information having been recei•:ed by Inspector M. P.\n\nSingh (accused) that some smugglers would bring some goods from Pakistan to India they conducted an ambush behind Burj (Border Pillar) No."}}, {"text": "Hardip\n\nSingh", "label": "OTHER_PERSON", "start_char": 14311, "end_char": 14324, "source": "ner", "metadata": {"in_sentence": "100 on the night intervening 6th and 7th July, 1970, and during the process in defence the Naka party fired which resulted in killing of two persons who were subsequently identified as Hardip\n\nSingh and Kartair Singh.", "canonical_name": "Harelip Singh"}}, {"text": "Kartair Singh", "label": "OTHER_PERSON", "start_char": 14329, "end_char": 14342, "source": "ner", "metadata": {"in_sentence": "100 on the night intervening 6th and 7th July, 1970, and during the process in defence the Naka party fired which resulted in killing of two persons who were subsequently identified as Hardip\n\nSingh and Kartair Singh.", "canonical_name": "Kartair Singh"}}, {"text": "section 364", "label": "PROVISION", "start_char": 14384, "end_char": 14395, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 14401, "end_char": 14404, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 364", "label": "PROVISION", "start_char": 14462, "end_char": 14473, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 14479, "end_char": 14482, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 302", "label": "PROVISION", "start_char": 14577, "end_char": 14588, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 14596, "end_char": 14599, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 109", "label": "PROVISION", "start_char": 14686, "end_char": 14697, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 14698, "end_char": 14701, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Surjit Singh", "label": "WITNESS", "start_char": 14973, "end_char": 14985, "source": "ner", "metadata": {"in_sentence": "The accused denied the charges and the BSF accused suggested a motive for the prosecution by alleging animus against the D.S.P. Surjit Singh (PW 64)."}}, {"text": "Pritam Singh", "label": "OTHER_PERSON", "start_char": 15333, "end_char": 15345, "source": "ner", "metadata": {"in_sentence": "The High Court on appeal confirmed the acquittal of two accused, namely, Pritam Singh and Mehar Singh, but convicted the appellants as mentioned above."}}, {"text": "Mehar Singh", "label": "OTHER_PERSON", "start_char": 15350, "end_char": 15361, "source": "ner", "metadata": {"in_sentence": "The High Court on appeal confirmed the acquittal of two accused, namely, Pritam Singh and Mehar Singh, but convicted the appellants as mentioned above."}}, {"text": "section 302", "label": "PROVISION", "start_char": 15445, "end_char": 15456, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 15462, "end_char": 15465, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Harbhajan", "label": "WITNESS", "start_char": 15592, "end_char": 15601, "source": "ner", "metadata": {"in_sentence": "With regard to the charge under section 302/120B IPC the case will depend upon the evidence of Puran Singh (PW 3) and the extrajudicial confession by the accused, Shiv Narain and Harbhajan\n\nJ 4-240SCI/77 ."}}, {"text": "Singh", "label": "WITNESS", "start_char": 15620, "end_char": 15625, "source": "ner", "metadata": {"in_sentence": "Singh, before R. K. Kapnr (PW 41)."}}, {"text": "R. K. Kapnr", "label": "WITNESS", "start_char": 15634, "end_char": 15645, "source": "ner", "metadata": {"in_sentence": "Singh, before R. K. Kapnr (PW 41)."}}, {"text": "section 364", "label": "PROVISION", "start_char": 15688, "end_char": 15699, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 15700, "end_char": 15703, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Harnam Smgh", "label": "WITNESS", "start_char": 15731, "end_char": 15742, "source": "ner", "metadata": {"in_sentence": "With regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh\n\n(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW\n\n46) with regard to the Roznamcha entry (Ex."}}, {"text": "Gurdial Singh", "label": "WITNESS", "start_char": 15781, "end_char": 15794, "source": "ner", "metadata": {"in_sentence": "With regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh\n\n(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW\n\n46) with regard to the Roznamcha entry (Ex."}}, {"text": "Gurmukh Singh", "label": "WITNESS", "start_char": 15815, "end_char": 15828, "source": "ner", "metadata": {"in_sentence": "With regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh\n\n(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW\n\n46) with regard to the Roznamcha entry (Ex."}}, {"text": "Amrik Singh", "label": "WITNESS", "start_char": 15851, "end_char": 15862, "source": "ner", "metadata": {"in_sentence": "With regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh\n\n(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW\n\n46) with regard to the Roznamcha entry (Ex."}}, {"text": "Gurdip Singh", "label": "WITNESS", "start_char": 16199, "end_char": 16211, "source": "ner", "metadata": {"in_sentence": "We should also note that Gurdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions J udgc and the High Court."}}, {"text": "Atma Singh", "label": "WITNESS", "start_char": 16221, "end_char": 16231, "source": "ner", "metadata": {"in_sentence": "We should also note that Gurdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions J udgc and the High Court."}}, {"text": "Mohinder Singh", "label": "WITNESS", "start_char": 16244, "end_char": 16258, "source": "ner", "metadata": {"in_sentence": "We should also note that Gurdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions J udgc and the High Court."}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 16568, "end_char": 16574, "source": "ner", "metadata": {"in_sentence": "In the above state of the evidence Mr. Sharma appearing on behalf of the state rests his case on the evidence of Puran Singh (PW 3) and the extra-judicial confession made by the accused Shiv Narain and Harbhajan Singh before R. K. Kapur (PW 41) with regard to the murder charge under section 302/120B !"}}, {"text": "section 302", "label": "PROVISION", "start_char": 16813, "end_char": 16824, "source": "regex", "metadata": {"statute": null}}, {"text": "Roznamcha", "label": "OTHER_PERSON", "start_char": 16859, "end_char": 16868, "source": "ner", "metadata": {"in_sentence": "He also relies upon the Roznamcha and the recoveries."}}, {"text": "P1JJan Singh", "label": "OTHER_PERSON", "start_char": 17377, "end_char": 17389, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge took note of the fact that P1JJan Singh had told the accused that the gold was lying with his brother, Hardip Singh."}}, {"text": "S. I. Jai Ram", "label": "WITNESS", "start_char": 18036, "end_char": 18049, "source": "ner", "metadata": {"in_sentence": "Although this witness said that he crossep from Pakistan to India only on November 6, 1970, after the murder, and was arrested and interrogated by S. I. Jai Ram (PW 58) and was also prosecuted for crossing the border, there is no evidence from any police officer, nor even from S. I. Jai Ram (PW\n\n58)."}}, {"text": "S.I. Jai Ram", "label": "OTHER_PERSON", "start_char": 18365, "end_char": 18377, "source": "ner", "metadata": {"in_sentence": "Apart from that, this witness stated that he was arrested by S.I. Jai Ram and he narrted the entire occurrence to him.", "canonical_name": "S. I. J ai Ram"}}, {"text": "S. I. J ai Ram", "label": "OTHER_PERSON", "start_char": 18424, "end_char": 18438, "source": "ner", "metadata": {"in_sentence": "S. I. J ai Ram does not support him.", "canonical_name": "S. I. J ai Ram"}}, {"text": "S. I.\n\nJai Ram", "label": "OTHER_PERSON", "start_char": 18591, "end_char": 18605, "source": "ner", "metadata": {"in_sentence": "On the other hand he had earlier stated before the committing Magistrate that he did not tell anything about the iaid murders to S. I.\n\nJai Ram.", "canonical_name": "S. I. J ai Ram"}}, {"text": "V. J. Hospital, Amritsar", "label": "ORG", "start_char": 20089, "end_char": 20113, "source": "ner", "metadata": {"in_sentence": "This witness gave evidence about the abduction of the three deceased from the Crystal Chowk, near V. J. Hospital, Amritsar."}}, {"text": "Mangal Singh", "label": "WITNESS", "start_char": 20359, "end_char": 20371, "source": "ner", "metadata": {"in_sentence": "Even so he did not go for police assistance nor did he inform even Mangal Singh (PW 17), father of the deceased Kartar Singh, about the occurrence although the latter was residing .with him in the same house."}}, {"text": "Kaba! Singh", "label": "WITNESS", "start_char": 21370, "end_char": 21381, "source": "ner", "metadata": {"in_sentence": "Although this witness stated that he informed Kaba!"}}, {"text": "Kaba] Singh", "label": "OTHER_PERSON", "start_char": 21416, "end_char": 21427, "source": "ner", "metadata": {"in_sentence": "Singh (PW 6) brother of Shingara Singh, Kaba] Singh did not corroborate him on this point."}}, {"text": "Harnam Singh", "label": "OTHER_PERSON", "start_char": 22008, "end_char": 22020, "source": "ner", "metadata": {"in_sentence": "If the Higl:t Court has to look for corroboration of the evidence of Harnam Singh even about his presence at Amritsar on its own reasoning, the principal part of the prosecution case about abduction depending upon his sole testimony cannot be held to be established.", "canonical_name": "Ha.rnam Singh"}}, {"text": "Gurdial Sirigh", "label": "WITNESS", "start_char": 22413, "end_char": 22427, "source": "ner", "metadata": {"in_sentence": "P.P. A) wherein a certain information from an undisclosed source was received at 2.00 P .M. by Gurdial Sirigh (PW 10) to."}}, {"text": "Bachan Singh", "label": "WITNESS", "start_char": 24589, "end_char": 24601, "source": "ner", "metadata": {"in_sentence": "The Sessions Judge did not feel it safe to act upon the testimony of police witnesses including Inspector Bachan Singh (PW 68) in the matter of disclosure statement as well as of recovery of tbe fire-arms and of gold in absence of corroboration by independent witnesses."}}, {"text": "R.K. Kapur", "label": "WITNESS", "start_char": 25312, "end_char": 25322, "source": "ner", "metadata": {"in_sentence": "There is also the evidence with regard to extra-jui!icial confessions said to have been made by the accused Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41), the Commandant of the Border Security Force."}}, {"text": "section 24", "label": "PROVISION", "start_char": 25448, "end_char": 25458, "source": "regex", "metadata": {"statute": null}}, {"text": "Handa D.S.P.", "label": "OTHER_PERSON", "start_char": 25827, "end_char": 25839, "source": "ner", "metadata": {"in_sentence": "The High Court -Observed :\n\n\"When this (warning) was conveyed to the accused by B Shri Handa D.S.P., the accused still stuck to the."}}, {"text": "Kapur", "label": "WITNESS", "start_char": 25988, "end_char": 25993, "source": "ner", "metadata": {"in_sentence": "The said threat of Shri Kapur P.W. did not work and the accused stuck to their old story ..... ."}}, {"text": "19th July, 1970", "label": "DATE", "start_char": 26072, "end_char": 26087, "source": "ner", "metadata": {"in_sentence": "It was on 19th July, 1970 that Shiv Narain and Harbhajan Singh were questioned separately when he told them that they should come."}}, {"text": "Section 24", "label": "PROVISION", "start_char": 26714, "end_char": 26724, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 26733, "end_char": 26752, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kapur", "label": "OTHER_PERSON", "start_char": 27341, "end_char": 27346, "source": "ner", "metadata": {"in_sentence": "Indeed, Mr. Kapur was a person in authority being the Commandant of the rank of a Senior Superintendent of Police and the confess- F ing accused were his subordinates."}}, {"text": "D.S.P. Handa", "label": "OTHER_PERSON", "start_char": 27711, "end_char": 27723, "source": "ner", "metadata": {"in_sentence": "He further advised D.S.P. Handa to interrogate them \"with a warning that they should state the truth otherwise they would not be supported by me\"."}}, {"text": "Handa", "label": "OTHER_PERSON", "start_char": 27915, "end_char": 27920, "source": "ner", "metadata": {"in_sentence": "Mr. Kapur further admitted in 11is cross-examination that he \"did tell Mr. Handa on telephone on G 10th July, 1970 that he should give a warning to Border Security Force people to come out with truth otherwise they themselves would be responsible for their actions\"."}}, {"text": "10th July, 1970", "label": "DATE", "start_char": 27939, "end_char": 27954, "source": "ner", "metadata": {"in_sentence": "Mr. Kapur further admitted in 11is cross-examination that he \"did tell Mr. Handa on telephone on G 10th July, 1970 that he should give a warning to Border Security Force people to come out with truth otherwise they themselves would be responsible for their actions\"."}}, {"text": "Section 24", "label": "PROVISION", "start_char": 28377, "end_char": 28387, "source": "regex", "metadata": {"statute": null}}, {"text": "19, 1970", "label": "DATE", "start_char": 28894, "end_char": 28902, "source": "ner", "metadata": {"in_sentence": "Two days after, on July 19, 1970, Mr. Kapur havi11g a!rea, dy failed to _get any confessional statement from the accused through other agency, took upon himself to question accus<;.\\I Shiv Narain and Harbhajan Singh\n\nseparately and this time he succeeded in securing confessional statements."}}, {"text": "July 19, 1970", "label": "DATE", "start_char": 29482, "end_char": 29495, "source": "ner", "metadata": {"in_sentence": "Mr. Kapur having stated to the accus.ed on July 19, 1970, that \"now that the case has been registered they should state the truth\", it is difficult to hold that by this statement he would not gener ate in the minds of the accused some hope and assurance that if they told the \"truth\" Jhey would receive his \"support\" which he had earlier conveyed to them through D.S.P. Handa."}}, {"text": "JUiy 19, 1970", "label": "DATE", "start_char": 30141, "end_char": 30154, "source": "ner", "metadata": {"in_sentence": "on JUiy 19, 1970, were free from he taint of infirmity with.in the mischief of section 24 of the Evidence Act."}}, {"text": "section 24", "label": "PROVISION", "start_char": 30217, "end_char": 30227, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 30440, "end_char": 30450, "source": "regex", "metadata": {"statute": null}}, {"text": "Paramjit Singh", "label": "PETITIONER", "start_char": 32421, "end_char": 32435, "source": "ner", "metadata": {"in_sentence": "The appellnts, Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narajn and M. P. Singh shall be released from detention forthwith.", "canonical_name": "P.aramjit Singh"}}, {"text": "Shiv Narajn", "label": "PETITIONER", "start_char": 32454, "end_char": 32465, "source": "ner", "metadata": {"in_sentence": "The appellnts, Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narajn and M. P. Singh shall be released from detention forthwith.", "canonical_name": "Shiv \"Narain"}}, {"text": "Bachan Singh", "label": "PETITIONER", "start_char": 32631, "end_char": 32643, "source": "ner", "metadata": {"in_sentence": "The remaining appellants, Ajit Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh, who have been on bail shall be discharged from their bail bonds.", "canonical_name": "Baghal Singh"}}]}
{"document_id": "1977_3_1_6_EN", "year": 1977, "text": "MUNSHI & ORS.\n\nRICHP AL & ORS.\n\nFebruary 17, 1977\n\n[V. R. KRISHNA !YER AND JASWANT SINGH, JJ.]\n\nPepsu Tenancy and Agri'cultural Lands Act, 1955-Ss. 7 and 1A--Scope of.\n\nSection 7 of the Peosu Tenancy and Agricultural Lands Act, 1955, w?.ich deals with termination of tenancy, provides that no tenancy shall ~<! tennr!lated except on any of the grounds mentioned i_n the ection. Section 7 gives additional grounds for termination of tenancy 1n certain cases.\n\nRespondent no. 2 sold his land to the appellants. Claiming that he W3; S C a non-occupancy tenant under respondei:tt no. _2, repondent no. 1 filed a sut for possession of the land by ore-emption. lhe trial Court decreed the suit in favour of the olaintiff-ore-emotor holding that he had been a tenant-atwill on the date of the sale and that he was forcibly dispossessed after the sale.\n\nThe District Judge as well as the High Court upheld the trial Court's decision.\n\nIt was contended on behalf of the appellants that the pre-emptor hd . to prove his subsisting right of pre-emption on the date of sale, date f instltution of the suit and date of passing of the decree and since the plaintiff had failed to file a suit for recovery of possession unJer s. 50 of the Punjab Ten~\n\nancy Act, 1887 his right and title had been extinguished.\n\nDismissing the appeal,\n\nHELD : The plaintiff cannot but be deemed to be the tenant of the suit land on the date of sale as well as on all other tnaterial dates and is thus fully qualified and entitled to pre-empt the land. [5H]\n\nThe point now sought to be raised was not raised by the appel}ant in the Courts below. In view of the provisions of ss. 7 and 71\\ of the Pepsu Tenancy and Agricultural Lands Act, 1955, which have an over-riding effect and the decision of this Court in Rikki Rain & Anr v. Rain Ku111ar & Ors [19751 l 2 SCC 318 it C$lnilOt be disputed that an order Or decree directing eviction Of\n\na tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, the person who has been in possession of the land with the. right to possess it continlies to hold the la-nd and be a tenant in spite of haVIng been wrongfullyput out of possession specially if he has initiated proceedings for recovery of possession. [3E & 5F]\n\nSince in the itai:t case, it has been concurrently found by the Courts G below that the plamtiff-pre-emptor was a tenant of the suit land on the da.te of sale an~ it has not been alleged that his tenancy was thereafter determined or termJnated on any of the grounds set out in ss. 7 and 7 A of the Act and tlte plaintiff had applied to the Tehsildar for restoration of possession, he could not but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land.\n\n[5G]\n\nRikki Ram & Anr. v. Ram Kumar & Ors. fl975] 2 S.C.C. 318 followed.\n\nB!taman Das v. Chet Ram [19711 2 S.C.R. 640 and Dindyal & Anr. v.\n\nRajaram (19711 1 S.C.R. 298 referred to.\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2054/69.\n\n(Appeal by Special Leave from the Judgment and Order dated the 5-8-1969 of the Punjab and Haryana High Court in Regular Second Appeal No. 983 of 1969). .\n\nV. C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants. .\n\nRam Sarup and !-{. A. Gupta, for respoudent No. 1.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J. This appeal by special leave which is directed against the judgment and order dated September 24, 1969, of the High Court of Punjab and Haryana at Chandigarh, passed in R.S.A. No. 983 of 1969 arises in the following circumstances :-\n\nBhawani Dass, respondent No. 2 herein, who owned agricultural land measuring 50 kanals and 6 marlas comprised in Khewat No. 223, Khatauni No. 467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs. 10,000/- by means of registered sale deed (Ext. D-1) dated October 17, 1966.\n\nAlleging that he held as a non-occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clanse Fourthly of section 15(1 )(a) of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913) which still applies to the State of Haryana, . Richpal, respondent No. 1 herein, brought a suit on October 17, 1967 for possession of the said land by pre-emption, in the Court of the Sub-Judge, Charkhi Dadri.\n\nThe suit was resisted by the appellants contending inter alia that the plaintiff-respondent was neither a nonoccupancy tenant of the land in question under Bhawani Dass, vendor, nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution of the suit.\n\nAfter settling the necessary issues and recording the evidence adduced by the parties, the trial court by its judgment dated February 1, 1969, decreed the suit in favour of the plaintiff-pre-emptor on payment of Rs. 10,000/- (the consideration of the aforesaid sale) plus Rs. 727/- (the costs incurred by the vendees-appellants on the stamps, registration fee etc.) holding that he had been a tenant-at-will under the vendor from Kharif, 1957 to Rabi, 1968; that he was forcibly dispossessed after the sale; that wrongful eviction of a tenant could be of no consequence in the eye of law; that the plaintiff-pre-emptor continued to hold his rights as a tenant, including the right to immediate possession and cultivation of the land notwithstanding his wrongful ouster therefrom by the vendees, who could not be allowed fo take advantage of their own wrongs and the former must be deemed to continue in legal possession of the land which was comprised in his tenancy under the vendor on the date of the sale right upto the date of the suit and the date of the decree of the trial court iu his favour.\n\nThe t(ial court further held that 'a tenant's eviction can only be had under sections 7 and 7 A of the Pepsu Tenancy and Agricultural Lands Act, 1955, and there is nothing on the record of the case to even insinuate that the plaintiff's tenancy\n\nwhich subsisted at the time of the impugned sale was ever determined A or terminated under section 7 or 7 A of the Act aud the plaintiff who\n\nwas iu physical possession of the land in suit as a tenant at the time of the sale has to be taken to be in legal possession up till the present moment'.\n\nIn conclusion, the trial could held that the mere act of forcible dispossession of the plaintiff-pre.emptor at the hands of the vendees after the sale could not have the effect of divesting him of his right to hold the land which he had acquired as a tenant of the R vendor and in the eye of law he must be presumed to have continued to be a tenant all along and as such had a preferential right of pre-emption.\n\nThe judgment and decree passed by the trial court was affirmed in appeal not only by the Additional District Judge, Gurgaon, but also by a learned Single Judge and Letters Patent Bench of the High Court.\n\nAggrieved by these decisions, the vendees-appellants have, as already stated, come up in further appeal to this Court.\n\nC The so:e point that has been urged before us on behalf of the appellants is that as according to the decision of this Court in Bhagwan Das v. Chet Ram(') the plaintiff-pre-emptor has to prove his subsisting right of pre-emption on all the three material dates viz. ( 1) the date of sale, (2) the date of institution of the suit and (3) the date of passing of the decree and in the instant case, he failed to file a suit in the revenue court for recovery of possession of the suit land within one year of the date of his dispossession as contemplated by section\n\n50 of the Punjab Tenancy Act 1887 not only his remedy was destroyed but his right and title was also extinguished at the expiry of that period on the general principles underlying section 27 of the Limitation Act, 1963, which may not in terms be applicable to the present case.\n\nThough the learned counsel for the appellants cited a few cases in support of his contention but did not unfortunately brmg to our notice the decision of this Court in Dindyal & Anr. v. Raja- Ram(') which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed canvass the aforesaid point.\n\nA reference to the record of the case shows that the point now sought to be agitated before us was not raised hy the appellants either in their written statement or in the grounds of the three appeals preferred by them before the courts below.\n\nAll that appear:s from the record to have been urged by them in the grounds of the aforesaid appeals was that the evidence had not been properly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the khasra girdawaries were not enough to establish that the plaintiff-pre-emptor was a tenant of the suit land under the vendor at the time of the sale.\n\nThe suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile of Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7 A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under :-\n\n\"4. Act to over ride other laws-Save, as otherwise expressly provided in this Act, the provisions of this Act\n\n(1) [1971] 2 S.C.R. 640.\n\n(2) [1971] l S.C.R. 298.\n\nshall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority, '\n\n7. Termination of tenancy,-(!) No tenancy shall be terminated except in accordance with the provisions of this Act or except of any of the following grounds, namely :--\n\n(a) , , . , . . , .. , . . . , . , , . . , . , , , , , .. , . , . , , , .\n\n(b) that the tenant has failed to pay rent within a pei; iod\n\nof six months after it falls due;\n\nProvided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such arrears during that period;\n\n( c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of phyt5ical or mental infirmity has after commencement of the President's Act sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof;\n\n(d) that the tenant has, without sufficient cause, failed\n\nto cultivate personally such land in the manner and to the extent customary in the locality in which such land is situated: ( e) that the tenant has used such land or any part thereof in a manner which is likely to render the land unfit for the purpose for which it was leased to him;\n\n(2)\n\n(f) that the tenant, on demand in writing by the landowner, has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.\n\n7 A Additional grounds for termination of tenancy in certain cases.-(1) Subject to the provisions of sub-sections\n\n(2) and (3), a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated on the following grounds in addition to the grounds specified in section 7, namely:-\n\n(a) that the land comprising the tenancy has been reserved by the land-owner for his personal cultivation in accordance with the provisions of Chapter II;\n\n(b) that the landowner owns thirty standard acres or less of land and the land falls within the permissibk limit;\n\nProvided that no tenant shall be ejected under this subsection-\n\n(i) from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres,\n\n(ii) from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standards acres.\n\nuntil hi is allowed by the State Government alternative land of eql ; alent value in standard acres.\n\n(2) No tenant, who immediately preceding the commencement of r!, e President's Act has held any land continuously for a period of twelve years or more under the same land-owner or his predecessor in title; shall be ejected on the grounds specified in sub-section (1)- ( a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standards acres, or\n\n(b) from an area of fifteen standards acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres;\n\nProvided that nothing in this sub-section shall apply to the tenant of a Jandoj\\lner who, both, at the commencement of the tenancy and the commencement of the President's Act, was a widow, a minor, an unmarried woman, a member\n\nof the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity.\n\nExplanation.-In computing the period of twelve years, the period during which any land has been held under the same land-owner or his predecessor in title by the father, brother or son of the tenant shall be included.\n\n(3) For the purpose of computing under sub-sections\n\n(1) and (2) the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included.\"\n\nIt cannot, in view of the above noted provisions of Jaw and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors.(') be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy.\n\nA fortiori, a person who has been in possession of land with the right to possess it continues to hold the fand and to he a tenant in spite of having been wrongfully put out of possession especially if he has initiatea proceedings for recovery of possession.\n\nAs in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale\n\n(!) [1975] 2 s.c.c. 318.\n\nA and it has not been alleged much less proved that his tenancy was thereafter determined or terminated on any of the grounds set out in sections 7 and 7 A of the Pepsu Tenancy and Agricultnral Lands Act, 1955 and he had admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land.\n\nWe must 6 fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.\n\nFor the foregoing reasons, we do not find any merit in this appeal which is dismissed.\n\nIn the circumstances of the case, we leave the parties to bear their own costs of this appeal.\n\nP.B.R.\n\nAppeal dismised.", "total_entities": 49, "entities": [{"text": "MUNSHI & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "MUNSHI & ORS", "offset_not_found": false}}, {"text": "RICHP AL & ORS", "label": "RESPONDENT", "start_char": 15, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "RICHP AL & ORS", "offset_not_found": false}}, {"text": "February 17, 1977", "label": "DATE", "start_char": 32, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "February 17, 1977\n\n[V. R. KRISHNA !"}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 75, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Lands Act, 1955", "label": "STATUTE", "start_char": 128, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Ss. 7 and 1A", "label": "PROVISION", "start_char": 144, "end_char": 156, "source": "regex", "metadata": {"linked_statute_text": "Lands Act, 1955", "statute": "Lands Act, 1955"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 169, "end_char": 178, "source": "regex", "metadata": {"linked_statute_text": "Lands Act, 1955", "statute": "Lands Act, 1955"}}, {"text": "Peosu Tenancy and Agricultural Lands Act, 1955", "label": "STATUTE", "start_char": 186, "end_char": 232, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 378, "end_char": 387, "source": "regex", "metadata": {"linked_statute_text": "the Peosu Tenancy and Agricultural Lands Act, 1955", "statute": "the Peosu Tenancy and Agricultural Lands Act, 1955"}}, {"text": "s. 50", "label": "PROVISION", "start_char": 1211, "end_char": 1216, "source": "regex", "metadata": {"linked_statute_text": "the Peosu Tenancy and Agricultural Lands Act, 1955", "statute": "the Peosu Tenancy and Agricultural Lands Act, 1955"}}, {"text": "ss. 7 and 71", "label": "PROVISION", "start_char": 1641, "end_char": 1653, "source": "regex", "metadata": {"statute": null}}, {"text": "Pepsu Tenancy and Agricultural Lands Act, 1955", "label": "STATUTE", "start_char": 1662, "end_char": 1708, "source": "regex", "metadata": {}}, {"text": "ss. 7 and 7", "label": "PROVISION", "start_char": 2541, "end_char": 2552, "source": "regex", "metadata": {"linked_statute_text": "the Pepsu Tenancy and Agricultural Lands Act, 1955", "statute": "the Pepsu Tenancy and Agricultural Lands Act, 1955"}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 3226, "end_char": 3239, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants. ."}}, {"text": "Urmila Kapoor", "label": "LAWYER", "start_char": 3246, "end_char": 3259, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants. ."}}, {"text": "Kamlesh Bansal", "label": "LAWYER", "start_char": 3269, "end_char": 3283, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants. ."}}, {"text": "Ram Sarup", "label": "LAWYER", "start_char": 3308, "end_char": 3317, "source": "ner", "metadata": {"in_sentence": "Ram Sarup and !-{."}}, {"text": "A. Gupta", "label": "LAWYER", "start_char": 3327, "end_char": 3335, "source": "ner", "metadata": {"in_sentence": "A. Gupta, for respoudent No."}}, {"text": "Bhawani Dass", "label": "RESPONDENT", "start_char": 3656, "end_char": 3668, "source": "ner", "metadata": {"in_sentence": "983 of 1969 arises in the following circumstances :-\n\nBhawani Dass, respondent No.", "canonical_name": "Bhawani Dass"}}, {"text": "Mohindergarh", "label": "GPE", "start_char": 3859, "end_char": 3871, "source": "ner", "metadata": {"in_sentence": "467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs."}}, {"text": "Munshi", "label": "PETITIONER", "start_char": 3890, "end_char": 3896, "source": "ner", "metadata": {"in_sentence": "467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs.", "canonical_name": "MUNSHI & ORS"}}, {"text": "Dina", "label": "PETITIONER", "start_char": 3898, "end_char": 3902, "source": "ner", "metadata": {"in_sentence": "467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs."}}, {"text": "Rani Dutt", "label": "PETITIONER", "start_char": 3907, "end_char": 3916, "source": "ner", "metadata": {"in_sentence": "467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs."}}, {"text": "October 17, 1966", "label": "DATE", "start_char": 4014, "end_char": 4030, "source": "ner", "metadata": {"in_sentence": "D-1) dated October 17, 1966."}}, {"text": "section 15(1 )(a)", "label": "PROVISION", "start_char": 4271, "end_char": 4288, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Pre-emption Act, 1913", "label": "STATUTE", "start_char": 4296, "end_char": 4324, "source": "regex", "metadata": {}}, {"text": "State of Haryana", "label": "ORG", "start_char": 4375, "end_char": 4391, "source": "ner", "metadata": {"in_sentence": "Alleging that he held as a non-occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clanse Fourthly of section 15(1 )(a) of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913) which still applies to the State of Haryana, ."}}, {"text": "Richpal", "label": "RESPONDENT", "start_char": 4395, "end_char": 4402, "source": "ner", "metadata": {"in_sentence": "Richpal, respondent No.", "canonical_name": "RICHP AL & ORS"}}, {"text": "October 17, 1967", "label": "DATE", "start_char": 4447, "end_char": 4463, "source": "ner", "metadata": {"in_sentence": "1 herein, brought a suit on October 17, 1967 for possession of the said land by pre-emption, in the Court of the Sub-Judge, Charkhi Dadri."}}, {"text": "Sub-Judge, Charkhi Dadri", "label": "COURT", "start_char": 4532, "end_char": 4556, "source": "ner", "metadata": {"in_sentence": "1 herein, brought a suit on October 17, 1967 for possession of the said land by pre-emption, in the Court of the Sub-Judge, Charkhi Dadri."}}, {"text": "Bhawani Dass", "label": "RESPONDENT", "start_char": 4715, "end_char": 4727, "source": "ner", "metadata": {"in_sentence": "The suit was resisted by the appellants contending inter alia that the plaintiff-respondent was neither a nonoccupancy tenant of the land in question under Bhawani Dass, vendor, nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution of the suit.", "canonical_name": "Bhawani Dass"}}, {"text": "February 1, 1969", "label": "DATE", "start_char": 4986, "end_char": 5002, "source": "ner", "metadata": {"in_sentence": "After settling the necessary issues and recording the evidence adduced by the parties, the trial court by its judgment dated February 1, 1969, decreed the suit in favour of the plaintiff-pre-emptor on payment of Rs."}}, {"text": "sections 7 and 7", "label": "PROVISION", "start_char": 6040, "end_char": 6056, "source": "regex", "metadata": {"statute": null}}, {"text": "Pepsu Tenancy and Agricultural Lands Act, 1955", "label": "STATUTE", "start_char": 6066, "end_char": 6112, "source": "regex", "metadata": {}}, {"text": "section 7", "label": "PROVISION", "start_char": 6300, "end_char": 6309, "source": "regex", "metadata": {"linked_statute_text": "the Pepsu Tenancy and Agricultural Lands Act, 1955", "statute": "the Pepsu Tenancy and Agricultural Lands Act, 1955"}}, {"text": "Additional District Judge, Gurgaon", "label": "COURT", "start_char": 7008, "end_char": 7042, "source": "ner", "metadata": {"in_sentence": "The judgment and decree passed by the trial court was affirmed in appeal not only by the Additional District Judge, Gurgaon, but also by a learned Single Judge and Letters Patent Bench of the High Court."}}, {"text": "section\n\n50", "label": "PROVISION", "start_char": 7799, "end_char": 7810, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab Tenancy Act 1887", "label": "STATUTE", "start_char": 7818, "end_char": 7841, "source": "regex", "metadata": {}}, {"text": "section 27", "label": "PROVISION", "start_char": 7988, "end_char": 7998, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Tenancy Act 1887", "statute": "the Punjab Tenancy Act 1887"}}, {"text": "Limitation Act, 1963", "label": "STATUTE", "start_char": 8006, "end_char": 8026, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Pepsu", "label": "GPE", "start_char": 9245, "end_char": 9250, "source": "ner", "metadata": {"in_sentence": "The suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile of Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7 A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under :-\n\n\"4."}}, {"text": "sections 7 and 7", "label": "PROVISION", "start_char": 9330, "end_char": 9346, "source": "regex", "metadata": {"statute": null}}, {"text": "Pepsu Tenancy and Agricultural Lands Act, 1955", "label": "STATUTE", "start_char": 9356, "end_char": 9402, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 9421, "end_char": 9430, "source": "regex", "metadata": {"linked_statute_text": "the Pepsu Tenancy and Agricultural Lands Act, 1955", "statute": "the Pepsu Tenancy and Agricultural Lands Act, 1955"}}, {"text": "[1971] 2 S.C.R. 640", "label": "CASE_CITATION", "start_char": 9609, "end_char": 9628, "source": "regex", "metadata": {}}, {"text": "sections 9 and 10", "label": "PROVISION", "start_char": 11456, "end_char": 11473, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 11801, "end_char": 11810, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 7 and 7", "label": "PROVISION", "start_char": 14684, "end_char": 14700, "source": "regex", "metadata": {"statute": null}}, {"text": "Pepsu Tenancy and Agricultnral Lands Act, 1955", "label": "STATUTE", "start_char": 14710, "end_char": 14756, "source": "regex", "metadata": {}}]}
{"document_id": "1977_3_206_224_EN", "year": 1977, "text": "INDIAN PERFORMING RIGHT SOCIETY LTD. v.\n\nEASTERN INDIA MOTION PICTURES ASSOCIATION\n\nMarch 14, 1977\n\n[V. R. KRISHNA }YER AND JASWANT SINGH, JJ.)\n\nCopy Right Act (Act 14 of 1957), 1957-Whether in view of the provisions of the Copy Right Act 1957 an existinJ? and future rights of nHtsic . ... c(imposer, lyricist is capable of assignment under s. 18 when he grants a licence or permission uls. 30 to an author (owner) of a cine1natograph film for its incorporation in the ound track of a cinen1atocraph film-Whetht!r the producer of a cinematograph film can defeat the same by engaging i;1 the ~ame person: Scope of ss. 2(d), (f), (j), (m), (p), (q), (r), (v), (y), 13, 14, 17, 18, 19, 22, 26, 30 and 34 of the Act.\n\nThe appellant society was incorporated in terms of section 2(r) of the Copyright Act, 1957 (Act 14 of 1957), in tho State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of aH existing and: futar-e Indian musical works in which copyright within the meaning of s. 13 subsists i_n India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 3 3 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the \"Statesman\" and the Gazette of India respectively a tariff laying down the fee:-s, charges and royalties that it proposed to collect for the\n\ngrant of licences for perlormance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of Iitdia filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appellant. The Copyright Board held : ( 1) In the absence of proof to the contrary, the composers of lyrics and tnusic retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and rriuskal works were printed or written and that they could assign the performing right -in public to the appellant.\n\n(2) The tariff as published by the appellant was reasonable.\n\n(3) The appellant had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges .in respect of those films w.e.f. the date on which the tariff was published in the Gazette of India.\n\nThe High Court a1Jowed the appeal preferred by the respondents under s. 72 of the Act and held: (i) Unle-ss there is a contract to the contrary, a composer who composes lyric or music for the first time forvaluable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b} to section i 7 of the Act, the owner of the film at v.hose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright.\n\n(iv) Though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect.\n\nIn appeal by certificate to this Court, the appellant contended (I) The author (composer) of a literary or musical work has copyright which includes. inter a/ia, the exclusive right (a) to perfor1n the work in public and\n\nI.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, J.) 207\n\n(b) to make any cinematograph film or a record in respect of the work.\n\n(2) That copyright iin a literary or musical work is infringed by any person if 'vithout a licence granted to him by the owner of the copyright, he makes a .cinematog; raph film in respect of the work or perlorm the work in public by\n\nxhibiting the cinematograph film.\n\n(3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinen1atograph _film but also the permissi_on of the owner of the copyright in the literary or musical \\York which is incorporated in the cinematograph film, as according to s. 13(4) B of the Act, the copyright in a cinematograph film or a record does not effect :the separate copyright in any work in respct of which or a substantial part of which the film or as the case may be1~ the record is made ( 4). fhe provi- :sions of section J 7 (b) of \"the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under s. 18 (b) by relinquishment under s. 21 and ( c) by the con1poser con1posing the work C in the course of his employment under a contract of service v.ith an employer in which c_ase the employer becomes the o\\vner of the copyright in the _musical work. (~J In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the questi_on of priorities will be decidedaccording to the principles \"where equities 3-re equal, the first in time shall prevail\". The respondent's Contentions were (i) lJnless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act .and there is no copyright in songs -0r orchestral pieces sung or played directly D without its notation being written.\n\n(ii) Since a \"cinematograph film\" is defined in section 2(f) of the Act as including the sound track and the \"cinematograph\" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) Jn the case of tb'e film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentin1ents in instances falling \\Vithin the purview of the expression \"literary wo:rk\" as defined in section 2(o) E .of the Act) has been plagiarised, there wil1be copyright in the film vesting in the nroducer.\n\n(iv) The Act confers a separate copyright of a cinemato- -graph film s a film, its author under s. 2(d) (v) of the Act being the owner of the film at th~ tin1e of its completion.\n\n(v) Jn the case of a lyric or music incorporated under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13 (1) (b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the right to cause the F film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lvric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in\n\npublic or for causing the records of the sound track of the film to be heard in rublic. (.vii) It is not correct to say that under s. 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in iti the making of the entire film should be con1- G missioned.\n\nSection 17 (b) will equally apply if someone is comrnissioned to make any component part of a cinematograph film such as a lyric or musical ·\\vork i.e. when such 1::omponent of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer.\n\n(viii) As the Act confers a separate copyrip:ht on a cinematograph film as a film the producer can exercise both the rights conferre<l on him under s. !41(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section J4(1)(a) H -and (b) shall co-exist with thooe created by section 14 ( !) ( c) and ( d) of the Act.\n\nDismissing the appeal the Court,\n\nHEID : (Per Krishna Iyer, J. concurring)\n\n( 1) Copyright in a cinema film exists in law hut section 13 ( 4) of the Act: preserves the sep_arate survival in its individuality of a copyright enjoyed by any work notwithstanding its confluence in the film.\n\nThispersistence of the aesthetic personality of the intellectual property cannot cut down the Copyright of the film qua film.\n\nThe exclusive right, otherwise, called copyright, in the case of a musical work extends to all the sub rights spelt out in section 14(1) (a).\n\nA harn1onious construction of s. 14, which is the integral yoga of copyright sh9ws that the artiste enjoys his copyright in the musical _work; the film1 producer is the masbr of his combination of artistic pieces and the two calli happily co-exi&t and need not conflict. [223 A-CJ\n\n(2) The boundaries of composite creations of art whic; h are at once individual and collecJive may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity's prop1!rty but in the materialist plane on \\Vhich artistes thrive private and exclusive estate in r .. rt subsists. 1'he enigmatic sma1e of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed pasagc of time\"- the private copyright of the human maker says, \"hands off'. [223 F-G]\n\n(3) The film producer has the sole right to exercise \\vhat is his entitlement under section 14-(1) (c) qua film.\n\nBut, he t'annot trench on the composer's copyright which he does only if the 'music' is perforn1ed OJ produced or reproduced separately, in violation of section 14(1) (a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played ill the cinema or the theatre.\n\nTo do that is the privilege of the composer and that right of his is not drowned in the film copyright except where there is spcial provision such as section 17, _proviso (c).\n\nBeyond exhibiting the filn1 as a cinema sho\\V if the produce:r plays the songs separately to attract an audience or for other reasons he infringes the con1poser's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, \\vhether in n restaurant or aeroplane or radio station or cinema theatre. [223 C-E]\n\n( 4) Section 14 has in its careful arrangement of the right belonging t<> each copyright has a Certain melody and harmony to music which is to loose the sense of the same.\n\nOur copyright statute protects the composite e-inematograph \\vork produced by lay out of heavy nloney and many talents but does not extinguish the copyrightable component parts in toto. The n1usic which has merged through the sound track, into the nlotion picture is copyright by the producer but, on account of this monopoly, the music con1poser's copyright does not perish. The twin rights can co-exist each fulfiling itself in its delectable distinctiveness. r224 A-B1\n\nObservation :\n\nApart from the music composed, the singer must be conferred a right Copyrighted music is not the soulful tune, t11e superb singing, the glorious.- voice or the wonderful rendering.\n\nIt is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the compcger and section 16 confines copyright to those works which are recognised by the Act., which means the cotnposer alone has Copyright in a musical 'vork and the singer has none.\n\nThis disentitlement of the musician or group of musical artistes to copyright is\n\nun-Jndian because the major attraction which lends monetary val1:1e to a musical performance is not the music maker so much as the musician. Perhaps both desrve to be recognised by the copyright lw, because art _in on_e sense depends on the ethos and the aesthetic best of a people and Vv'h1le universal protection of iiltellectual and aesthetic property of creators of \"works'~ is an international obligation eaCh countrv in its la'v must protect such rights 'vherever originally is contributed. [224 E-H]\n\nH Per Jas1;,.•c.11t Singh J.\n\n( 1) The existing and future right of music ........ composer and lyrics in their respective works as defined in the. Act 'is capable of assigriment subject to the conditions mentioned in section 18. of the Act as also in section\n\n19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D-E]\n\n(2) The interpretation of clause (f) of section 2 \\Vhich is n'ot exhaustive leaves no room fn_r doubt when read in conjuncrion with section 14(1)(c)(iii) that the term cinematograph film includes a sound tn!ck atlociated \\Vith the film. [220 DJ\n\n(3) A harmonious and rational instead of mechanical construction of s 34, :g s. 14(1)(a)(iii) ands. 14(1)(c)(ii) will be:\n\n(A) Once the author of a lyric or a musical work parts v1ith a portion of bis copyright by authorising a film producer to make a cinematograph film in res pect of his work and thereby to have his work incorporated or recorded in sound'. track of a cinematograph film, the latter acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right, inter afia, Of performing the work in public that is, to c cause the film in so far as it consists of visual images to be seen in public and in so tar o.s il consists of the acoustic portion including a lyric or a musical \\\\'Ork to be heard in public without securing any further prmis'5ion of the author (i!omposer) of the lyric or a musical work for the pzrfonnance of the work in public. A distinct copyright in the aforesaid circu111stances co1nes to vest in the cinematograph film as a \\\\'hole which relates both to copying the filn1\n\nanJ to its performance in public.\n\n(B) If an author (composer) of a lyric or a musical work authorises a Di cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot con1plain of the infringement of hiS copyright if the author (owner) of the cinc1n1.tograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the ._'\\ct can operate to affect the rights acquired by the author ( own.:.!r) of the film by virtue of section 14(1)(c) of the Act.\n\n(C) The composer of a lyric or musical work retains the right of perforn1- E ing it in public for profit otherwise than as a part of cinematograph film and he cannot b; restrained from doing so.\n\nIn other words, the author (con1poser) of a lyric or musical v;1ork who has authorised a cin-:matograph film producer to make a cinmatograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cine1natograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of F the sound truck associated with the film by utilising such sound jrack or from co1n1nunica1ing or authorising the comn1unicatiOn of the film by fadio diffusion, as section 14 ( 1) (c) of the Act expressly permits the owner of the copyri£\"ht of a cinematograph film to do all these things. In such cases rhe author (owner) of the cjnematograph film cannot be said to -.vrongfu1ly appropriate anything which belongs to the composer of the lyric or musical work.\n\nAny other construction would not only render the express provisions of clause (f), (m), (y) of section 2, section 13(1)fbJ and seclion 14(l)(c) of the Act otiose but v.ould also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful rnedia of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the recording in any part of the sound track a'sociated \\vith the film by utilising such sound track ns sonu!thing distinct from a record as ordinarily understood. [220 G-H; 221 AGl\n\n(4)Clauses (d), (v), (f), (rn), (v) and (y) of section 2. section 13(1) and 14(1)\\C), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly n1ake it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes tQ\n\nvest i!1 a cineatograph fili; n on its. completion which is said to t<lke place \\Vhen the visual portion and audible portion are synchronized. [221 H; 222 .A]\n\n(_5) Th~ rigts of music ........ composer or lyricist can be defeated by the . producer ot a cmematograph film in the manner laid down in proviso {b) Dnd\n\n(c) of section 1! of the Act. Jn both the cases falling under clauses (b) and\n\n(~) of s. 17, a c1nematograph film producer becomes the first ov.•ncr of the copynght and no copyright subsists in the composer of the lyric or n1usic so compoed unless. there is a contract to the contrary between the composer of the Iync or music on one hand and the producer of the cinematograph filn1 on the other. [222 D-FJ\n\nWallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, quoted \\vith approval.\n\nCIVIL A.PPELLATE JURISDICTION: Civil Appeal No. 967 of 1975. (From the judgment and order dated 13-2-1974 of the Calcutta High Court iu Copyrigtht No. 2/73).\n\nA. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant.\n\nS. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22.\n\nJ. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22.\n\nJ. L. Nain, Atul Munim and B. R. Agarwala, for respondent E No. 19.\n\nThe Judgment of the Court was delivered by Jaswant Singh, J., V. R. Krishna Iyer, J. also gave a separate opinion.\n\nJASWANT SINGH, J.\n\nThis appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raise~ the following substantial question of law of general importance:-\n\n\"Whether in view of the provisions of the Copyright Act, 1957, an existing and future rights of music ...... composer, lyricist is capable of assignment and whether the proucer ot a cinematograph film can defeat the same by engaging the same person.\"\n\nThe facts giving rise to the appeal are : The Indian Perfoming Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS') the appellant before us, was incorporated in the State of\n\nMaharashtr~ on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or grant!ng licences for performa'!-ce in puJ;>lic of al! exsting and futue Indian Musical works in which copynght suJ;>s1sts m India.\n\nThe ncorpora tion of the JPRS was in terms of sectton 2(r) of the Copyngbt Act,\n\nI.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, !.) 2 u\n\n1957 (Act 14 of 1957) (hereinafter referred to as 'the Act') which A was enacted after taking into consideration the Report of the (British) Copyright Committee, 1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS\n\nhas amongst its members the composers of musical works, authors of Be literary and dramatic works and artists.\n\nIn accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1?69 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it propos<•d to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences.\n\nA C number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for performance in public of all existing and future musical D works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges. or royalties.\n\nThe association of producers averred •inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their members- E. producers of the cinematograph films-having been utilised and incorporated in the sound. track of the cinematograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright subsisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members F. i.e. the producers of cinematograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be heard G, in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the H. film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it throughout the world; that having regard to the provisions of the Act the copyright in the case of\n\na cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purportmg to have been made m favour of the IPRS was void and of no effect and was incapable of conferring any rights whatsoever in sucil musical works on the IPRS.\n\n. The Cinematograph Exhibitors Association of India also filed objections challengmg the nght of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films.\n\nBesides raising contentions identical to those raised by various associations of producers they averred that copy. right in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distribucors of films the exhibition of cinematograph film includes t.he right to play in publ; c the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors under an agreement and that when \"n exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors.\n\nOn the aforesaid objections being referred to it for ddermination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in pnblic to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of !Maia.\n\nAggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valnable consideration for a cinematograph film does not acquire an} copyright eit'her in respect of film or its sound track which he is capable of assigning and that under proviso (b) to section 17 of the Act the owner of the film at whose instance, the composition is made, becmes the first owner of the copyright in the composition.\n\nThe High Court further held that \"the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright\".\n\nThe High Court also held that \"though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when\n\nthere is an existing or future right to be assigned and that in the cir- A cumstances of the present case, assignment, if any, of the copyright in any future work is of no effect\".\n\nDissatisfied with this decision, the lPRS has, as already stated, come up in appeal to this Court.\n\nThe copyright law in. our country being fairly complicated because of the involved language in which some of its provisions are couched and the case being of first impression, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appear; ng on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted .to him by the owner of the copyright, he makes a .cinematograph film in respect of the work or performs the work in public by cxhibiting the cinematograph filll); that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 13 ( 4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17 (b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright in the work are (a) liy assignment,\n\n(b) by relinquishment and (c) by the composer composing the work in the course of his employment under a contract of service with \"n employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be , decided according to the principle \"where equities are equal, the first\n\nfo time shall prevail\".\n\nMr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other. article ?n which the film i:r prt. of it, in so far as it consists of visual images, 1s recorded, or which IS issued by the maker\n\nof the film for use in conjunction with such an article\"); that the contention .advanced m behalf of t.he appellant that copyrigh~ in a literary or musical work mcorporated m the sound track of a cmematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfounded; tl\\at unlike (the law) in England, in India unless a music is notationally written, . printed or graphically reproduced, it is not musical work witl1in the meaning of the Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written; that since a 'cinematograph film' is defined in section 2(f) of the Act as including the sound track and the 'cinematograph' is required to be construed to include any work produced by any process analogous to cinematography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet's own thoughts and sentiments in stanzas falling within the purview of the expression \"literary work\" as defined in section 2 ( o) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)-\n\n(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13 ( 1) (b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the compos.er of the lyric or of the 1, ll';'ic incorpora!ed in the sound track of a cmematograph film for exh1b1tmg or causmg the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public.\n\nThey have further urged that it is not correct to say that nnder section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a separate copyright on a cinematograph film as a film, the producer can exercise both the rights conferred on him under section 14(1)(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section lfl(l) (a) and (b) shall co-exist with those created by section 14(1)(c) and (d) of the Act, e.g. un<ler clause (a), the\n\ncopyright in a literary work such as a novel entitles its author to make A a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1) (a) of the Act.\n\nBut once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film.\n\nWe have given our earnest consideration to the snbmissions made by learned counsel for the parties.\n\nSo far as the first part of the question reproduced above is concerned, there is no dispute between the parties.\n\nBoth sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that-\"(!) the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2) where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly\", the first part of the question should be answered in the affirmative.\n\nIt is accordingly held that an existing and future right of music ...... composer and lyricist in their respective 'works' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent.\n\nIt is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled.\n\nThe main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2 ( p) of the Act means only a. notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incorporation in the sound track of a cinematograph film.\n\nFor a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provisions of the Act.\n\nThe terms 'author', 'cinematograph film', 'exclusive licence', 'infringing copy', 'musical work', 'performance' performing rights society', 'radio-diffusion' and 'work' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under:-\n\n\" ( d) author means,-\n\n(i) in relation to a literary or dramatic work, the author of the work;\n\nI 5-240SCI/77\n\n- '\",-·\n\n(ii) in relation to a musical work, the composer;\n\n(iii) ** ** **\n\n(iv) ** ** **\n\n( v) in relation to a cinematograph film, the owner of the film at the time of its completion; and ·\n\n(vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate\".\n\n\"(f) cinematograph film includes the sound track, if any, and \"cincmatograph\" shall be construed as including any work produced by any process analogous to cinematography.\"\n\n\"(j) exclusive licence means a licence which confers on the licensee or on the licensee and persons authorised by him, to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and \"exclusive licensee\" shall be construed accordingly.\" ·\n\n\"(m) infringing copy means,-\n\n(i) in relation to a literary, dramatic, musical or 3rtistic\n\nwork, a reproduction thereof otherwise than in the form of a cinematograph film;\n\n(ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the fihn;\n\n(iii) **\n\n(iv) ** ** ** ••\n\n**\"\n\n\"(p) musical work means any combination of melody and harmony or either of them, printed, rednced to writing or otherwise graphically produced or reproduced\".\n\n\" ( q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodiffusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture\". ·\n\n\"(r) performing rights ociety means a societ)'., assoc!ation or other body, whether mcorporated or not, which cames on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists\".\n\n\"(v) radio-diffusion includes communication to the public by any means of wireless diffusion whether in the form of sounds or visual images or both\".\n\n\"(y) work means any of the following works, namely--\n\n(i) a literary, dramatic, musical or artistic work;\n\n(ii) a cinematograph film;\n\n(iii) a record''.\n\nSection 13 of the Act provides as follows :-\n\n\"13. Works in which copyright subsists.-(!) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-\n\n(a) original literary, dramatic musical and artistic works;\n\n(b) cinematograph films; and\n\n( c) records.\n\n(2) ** ** ••\n\n(3) Copyright shall not subsist-\n\n(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;\n\n(b) in any record made in respect of a literary, dramatic or musical work, if in making the record, copyright in such work has been infringed.\n\n( 4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made.\n\n(5) ** **\n\n* *\"\n\nSection 14 of the Act which contains the meaning of the expression \"copyright\" is to the following effect :-\n\n\"14. Meaning of copyright.\"-(!) For the purposes of this Act, \"copyright\" means the exclusive right, by virtue of, and subject to the provisions of, this Act,-\n\n(a) in the case of literary, dramatic or musical work, to do and author.ise the doing of any of the following acts, namely-\n\n(i) to reproduce the work in any material form;\n\n(ii) to publish the work;\n\n(iii) to perform the work in public;\n\n(iv) to produce, reproduce, perform or publish any translation of the work;\n\n( v) to make any cinematograph film or a record in respect of the work;\n\n(vi) to communicate the work by radio-diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work;\n\n(vii) to make any adaptation of the work;\n\n(viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the C work in clauses (i) to (vi)\n\n(b) ** ** **\n\n( c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely-\n\n(i) to make a copy of the film;\n\n(ii) to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public;\n\n(iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track;\n\n(iv) to communicate the film by radio-diffusion;\n\n( d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely-\n\n(i) to make any other record embodying the same recording;\n\n(ii) to cause the recording embodied in the record to be heard in public;\n\n(iii) to communicate the recording embodied in the record by radio-diffusion.\n\n(2) Any reference in sub-section (I) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof\".\n\nSection 17 of the Act which relates to ownership of copyright provides as under :-\n\n\" 17. First owner of copyright-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein;\n\nProvided thatr\n\n(a) in the case of a literary, dramatic or artistic work A made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar pedodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so B far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;\n\n(b) Subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright\n\ntherein; D\n\n( c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;\n\n(d) **\n\n(e) ** ** ** ** **\n\nSections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect :- F\n\n\"22. Term of copyright in published literary, dramatic musical and artistic works.-Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artir.tic work (other than a photograph) pnblished within the life-time of the author until fifty years from the beginning of the calendar year following the year in which the author dies.\n\nExplanation.-In this section, the reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last\".\n\n\"26. Term of copyright in cinematograph films.\n\nIn the H case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next following the year in which the film is published\".\n\nA Section 30 of the Act which deals with grant of licences by owners of copyright runs thus :-\n\n\"30. Licences by owners of copyright-The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interet in the right by licence in writing signed by .him or by his duly B authorised agent :\n\nProvided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.\n\nExplanation.-When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence\".\n\nThe interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1) (c) (iii) that the term \"cinematograph film\" includes a sound track associated with the film.\n\nIn the light of these provisions, it cannot be disputed that a \"cinematograph film\" is to be taken to include the sounds embodied in a sound track which is associated with the film.\n\nSection 13 recognises 'cinematograph film' as a distinct and separate class of 'work' and declares that copyright shall subsist therein throughout India.\n\nSection 14 which enumerates the rights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work.\n\nIt also provides that copyright in case of cinematograph film means among other rights, the right of exhibiting or causing the exhibition in public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13 ( 4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright. in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made.\n\nThough a conflict may at first sight seem to exist between section 13 ( 4) and section 14(1) (a) (iii) on the one hand and section 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives\n\nhim the exclusive right inter alia of performing the work in public i.e.\n\nA to cause the film in so far as it consists of visual images to be seen in public and in s.o far as it consists of the acoustic portion including a lync or a musical work to be heard in public without securing any further perm1ss1on of the author (composer) of the lyric or a musical work for lche performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of B British Copyright Committee set up in 1951 relates both to copying the film and to its performance in pnblic.\n\nThus if an author (composer) of a lyric or . musical work authorises a cinematograph film producer to make a cmematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on C the sound track of the film to be heard in public and nothing contained in section 13 ( 4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtn, e of section 14 ( 1) ( c) of the Act.\n\nThe composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be restrained from doing so.\n\nIn other words, the D author (composer) of lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author\n\n(owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from E making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from commnnicating or authorising the communication of the film by radio-diffusion, as section 14 (1) ( c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things.\n\nIn such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the F composer of the lyric or musical work.\n\nAny other construction wonld not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1) (b) and section 14(1) (c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinematograph film as a powerful media of expression, and the highly complex technical and scientific process ancl heavy capital outlay involved in its production, G has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track a; sociated with the film by utilising such sound track as something distinct from a record as ordinarily understood~\n\nOn a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (1,11), (v) H and (y) of section 2, sections 13(1) and 14(1) (c), po~1sos. (b) and ( c) to section 17 and sections 22 and 26 of the Act, 1t 1s, therefore, abundantly clear that a protectable copyright (comprising a\n\nA bundle of exclusive rights mentioned in sectipn 14(1) (c) of the Act) comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized.\n\nThis takes us to the core of the question namely, whether the producer of a cinematograph film can defeat the right of the composer of music . . . . or lyrics! by engaging him.\n\nThe key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the Jilatter beyond doubt.\n\nAccording to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefor i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicati:d, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so co111posed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other.\n\nThe same result follows according to aforesaid proviso ( c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work.\n\nIt is, therefore, crystal clear that the rights of a music . . . . composer or lyricst can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and ( c) of section 17 of the Act.\n\nWe are fortified in this view by the decision in Wa/lerstei11 v. Herbert\n\n(1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance qf his engagement to give effect to certain situations in the drama entitled \"Lady Andley's Secret\", which was to be put on the stage was not an independent composition but was merely an accessory to and a jl'art and parcel of the drama and the plaintiff did not have any right in the music.\n\nFor the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Consequently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs.\n\nKRISHNA IYER, J.-Thc judgment just delivered is on behalf of Ille Court, which makes this footnote, in a sense, otiose.\n\nBut I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold.\n\nA cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more than long strips of celluloid, more than miracles in photography, more thau song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that\n\nensemble which is the finished product of orchestrated performance by each of th<: several participants, although the components may, sometimes, in themselves be elegant entities.\n\nCopyright in a cinema film exists in law, buts. 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwithstanding its confluence in the film.\n\nThis persistence of the aesthetic 'personality' of the intellectual property cannot cut down the copyright of the film qua film.\n\nThe latter right is, as explained earlier in my learned brother's judgment, set out indubitably in s. 14(1) (c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub-rights spelt out in s. 14(1 )(a). A harmonious construction of s. 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject.\n\nThe axtist enjoys his copyright in the musical work, the film producer is the master of his combination of artistic pieces and the two can happily co-exist and need not conflict.\n\nWhat is the modus vivendi? ·\n\nThe solution is simple.\n\nThe film producer has the sole right to exercise what is his entitlement under s. 14(1) (c) qua film, but he cannot trench on the composer's copyright which he docs only if the 'music' is performed or produced or reproduced separately, in violation of s. 14(1) (a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre.\n\nTo do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in s. 17, provi:; o ( c). So, beyond exhibiting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer's copyright.\n\nAnywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society.\n\nThese are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles.\n\nIn a cosmic perspective, a thing of beauty has no boundary and is humanity's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsis!s.\n\nMan, the noblest work of the Infinite Artist, stmngcly enough, battles for the finite products of his art and the secular law, operating on the te_mporal level, guardians material works possessing spiritual values.\n\nThe enigmatic small of Mona Lisa is the timeless heritage of mankind but, till liberated by the prescribed passag~ of time, the private copyright of the human maker says, 'hands off'.\n\nThe creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masters, whose works are invaluable, are victims of piflling payments.\n\nWorld opinion in defence of the human right to intellectual property led to international conventions H and municipal laws, commissions, codes and organisations, calculated to protect works of art.\n\nIndia responded to this universal need by enacting the Copyright Act, 1957.\n\nNot the recommendations in conventions but provisions in municipal laws determine enforceable rights.\n\nOur copyright statute protects the composite cinematograph work produced by lay-out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music corr.poser's copyright does not perish. The twin rights can co-exist, each fulfilling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the scheme.\n\nA somewhat un-Indian feature we noticed in the Indian copyright Act falls to be mentioned.\n\nOf course, when our law is intellectual borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work', as defined in s.2 (p )\", reads :\n\n\"(p) musical work means any combination of melody\n\nand harmony or either of them printed, reduced to writing or otherwise graphically produced or reproduced.\"\n\nTherefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic form.\n\nThe Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the tags, the bhava, the lava and the sublime or exciting singing.\n\nPrinted music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author', as defined in s.2(d), in relation to a musical work, is only the composer and s. 16 confies 'copyright' to those works which are recognised by the Act. This means t.hat the composer alone has copyright in a musical work.\n\nThe singer has none.\n\nThis disentitlement of the musician or group of musical artists to copyright is un-Indiim, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both de.serve to be recognised by the copyright law.\n\nI make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is contributed. So viewed, apart from the music composer, the 'singer must be conferred a right.\n\nOf course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 174, "entities": [{"text": "INDIAN PERFORMING RIGHT SOCIETY LTD", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "INDIAN PERFORMING RIGHT SOCIETY LTD", "offset_not_found": false}}, {"text": "EASTERN INDIA MOTION PICTURES ASSOCIATION", "label": "RESPONDENT", "start_char": 41, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "EASTERN INDIA MOTION PICTURES ASSOCIATION", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 124, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH, JJ.", "offset_not_found": false}}, {"text": "Copy Right Act", "label": "STATUTE", "start_char": 145, "end_char": 159, "source": "regex", "metadata": {}}, {"text": "Whether in view of the provisions of the Copy Right Act 1957", "label": "STATUTE", "start_char": 183, "end_char": 243, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 342, "end_char": 347, "source": "regex", "metadata": {"linked_statute_text": "Whether in view of the provisions of the Copy Right Act 1957", "statute": "Whether in view of the provisions of the Copy Right Act 1957"}}, {"text": "ss. 2(d)", "label": "PROVISION", "start_char": 614, "end_char": 622, "source": "regex", "metadata": {"linked_statute_text": "Whether in view of the provisions of the Copy Right Act 1957", "statute": "Whether in view of the provisions of the Copy Right Act 1957"}}, {"text": "section 2(r)", "label": "PROVISION", "start_char": 766, "end_char": 778, "source": "regex", "metadata": {"linked_statute_text": "Whether in view of the provisions of the Copy Right Act 1957", "statute": "Whether in view of the provisions of the Copy Right Act 1957"}}, {"text": "Copyright Act, 1957", "label": "STATUTE", "start_char": 786, "end_char": 805, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Maharashtra", "label": "GPE", "start_char": 840, "end_char": 851, "source": "ner", "metadata": {"in_sentence": "The appellant society was incorporated in terms of section 2(r) of the Copyright Act, 1957 (Act 14 of 1957), in tho State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of aH existing and: futar-e Indian musical works in which copyright within the meaning of s. 13 subsists i_n India."}}, {"text": "August 23, 1969", "label": "DATE", "start_char": 855, "end_char": 870, "source": "ner", "metadata": {"in_sentence": "The appellant society was incorporated in terms of section 2(r) of the Copyright Act, 1957 (Act 14 of 1957), in tho State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of aH existing and: futar-e Indian musical works in which copyright within the meaning of s. 13 subsists i_n India."}}, {"text": "India", "label": "GPE", "start_char": 948, "end_char": 953, "source": "ner", "metadata": {"in_sentence": "The appellant society was incorporated in terms of section 2(r) of the Copyright Act, 1957 (Act 14 of 1957), in tho State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of aH existing and: futar-e Indian musical works in which copyright within the meaning of s. 13 subsists i_n India."}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1102, "end_char": 1107, "source": "regex", "metadata": {"linked_statute_text": "the Copyright Act, 1957", "statute": "the Copyright Act, 1957"}}, {"text": "section 3", "label": "PROVISION", "start_char": 1296, "end_char": 1305, "source": "regex", "metadata": {"linked_statute_text": "the Copyright Act, 1957", "statute": "the Copyright Act, 1957"}}, {"text": "Copyright Act", "label": "STATUTE", "start_char": 1315, "end_char": 1328, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 27, 1969", "label": "DATE", "start_char": 1357, "end_char": 1375, "source": "ner", "metadata": {"in_sentence": "In accordance with the provisions of section 3 3 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the \"Statesman\" and the Gazette of India respectively a tariff laying down the fee:-s, charges and royalties that it proposed to collect for the\n\ngrant of licences for perlormance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences."}}, {"text": "November 29, 1969", "label": "DATE", "start_char": 1380, "end_char": 1397, "source": "ner", "metadata": {"in_sentence": "In accordance with the provisions of section 3 3 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the \"Statesman\" and the Gazette of India respectively a tariff laying down the fee:-s, charges and royalties that it proposed to collect for the\n\ngrant of licences for perlormance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences."}}, {"text": "Cinematograph Exhibitors Association of Iitdia", "label": "ORG", "start_char": 1847, "end_char": 1893, "source": "ner", "metadata": {"in_sentence": "A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of Iitdia filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appellant."}}, {"text": "section 34", "label": "PROVISION", "start_char": 2000, "end_char": 2010, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 2850, "end_char": 2855, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 3502, "end_char": 3512, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 4042, "end_char": 4055, "source": "ner", "metadata": {"in_sentence": "inter a/ia, the exclusive right (a) to perfor1n the work in public and\n\nI.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, J.) 207\n\n(b) to make any cinematograph film or a record in respect of the work.", "canonical_name": "JASWANT SINGH, JJ."}}, {"text": "s. 13(4)", "label": "PROVISION", "start_char": 4751, "end_char": 4759, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 5365, "end_char": 5370, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 5399, "end_char": 5404, "source": "regex", "metadata": {"statute": null}}, {"text": "Copyright Act", "label": "STATUTE", "start_char": 6051, "end_char": 6064, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 6234, "end_char": 6246, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(o)", "label": "PROVISION", "start_char": 6838, "end_char": 6850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 7045, "end_char": 7052, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 7234, "end_char": 7246, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 7306, "end_char": 7316, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(c)", "label": "PROVISION", "start_char": 7384, "end_char": 7397, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 7997, "end_char": 8002, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 8202, "end_char": 8212, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(4)", "label": "PROVISION", "start_char": 8715, "end_char": 8728, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 8862, "end_char": 8872, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 8951, "end_char": 8963, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeal the Court,\n\nHEID : (Per Krishna Iyer, J. concurring)\n\n( 1) Copyright in a cinema film exists in law hut section 13 ( 4) of the Act: preserves the sep_arate survival in its individuality of a copyright enjoyed by any work notwithstanding its confluence in the film.", "canonical_name": "Krishna Iyer"}}, {"text": "section 13", "label": "PROVISION", "start_char": 9031, "end_char": 9041, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 9443, "end_char": 9456, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 9493, "end_char": 9498, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 10350, 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"metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 13444, "end_char": 13453, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)(iii)", "label": "PROVISION", "start_char": 13536, "end_char": 13557, "source": "regex", "metadata": {"statute": null}}, {"text": "s 34", "label": "PROVISION", "start_char": 13718, "end_char": 13722, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)(a)(iii)", "label": "PROVISION", "start_char": 13727, "end_char": 13743, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)", "label": "PROVISION", "start_char": 14074, "end_char": 14090, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(4)", "label": "PROVISION", "start_char": 15206, "end_char": 15219, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)", "label": "PROVISION", "start_char": 15327, "end_char": 15343, "source": "regex", "metadata": {"statute": 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14(1)(c)", "label": "PROVISION", "start_char": 17470, "end_char": 17486, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 17830, "end_char": 17839, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 17909, "end_char": 17914, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 18430, "end_char": 18449, "source": "ner", "metadata": {"in_sentence": "From the judgment and order dated 13-2-1974 of the Calcutta High Court iu Copyrigtht No."}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 18476, "end_char": 18485, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "E. P. Skons James", "label": "JUDGE", "start_char": 18487, "end_char": 18504, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "J. I. Mehta", "label": "JUDGE", "start_char": 18506, "end_char": 18517, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "J. Roy Choudhary", "label": "LAWYER", "start_char": 18519, "end_char": 18535, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "S. K.\n\nMehta", "label": "LAWYER", "start_char": 18537, "end_char": 18549, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "K. R: Nagaraja", "label": "LAWYER", "start_char": 18551, "end_char": 18565, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 18570, "end_char": 18580, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, E. P. Skons James, J. I. Mehta, J. Roy Choudhary, S. K.\n\nMehta, K. R: Nagaraja and P. N. Puri, for the appellant."}}, {"text": "S. Chaudhury", "label": "LAWYER", "start_char": 18602, "end_char": 18614, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22."}}, {"text": "R. K. Bachawat", "label": "LAWYER", "start_char": 18616, "end_char": 18630, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22."}}, {"text": "D. K. Sinha", "label": "LAWYER", "start_char": 18632, "end_char": 18643, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 18645, "end_char": 18658, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 18663, "end_char": 18675, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury, R. K. Bachawat, D. K. Sinha, H. S. Parihar and I. N. Shroff, for respondents 1-5 and 12 and 22."}}, {"text": "J. C. Bhat", "label": "LAWYER", "start_char": 18713, "end_char": 18723, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22.", "canonical_name": "J. C. Bhat"}}, {"text": "Atul Munim", "label": "LAWYER", "start_char": 18725, "end_char": 18735, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 18740, "end_char": 18754, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 18777, "end_char": 18783, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22."}}, {"text": "B. K. Bachawat", "label": "LAWYER", "start_char": 18785, "end_char": 18799, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22."}}, {"text": "l. N.\n\nShroff", "label": "LAWYER", "start_char": 18832, "end_char": 18845, "source": "ner", "metadata": {"in_sentence": "J. C. Bhat, Atul Munim and B. R. Agarwala, for respondents 6-K\n\nB. Sen, B. K. Bachawat, D. K. Sinha, H. S. Parihar and l. N.\n\nShroff, for respondents 12 and 22."}}, {"text": "J. L. Nain", "label": "LAWYER", "start_char": 18875, "end_char": 18885, "source": "ner", "metadata": {"in_sentence": "J. L. Nain, Atul Munim and B. R. Agarwala, for respondent E No.", "canonical_name": "J. L. Nain"}}, {"text": "V. R. Krishna Iyer", "label": "JUDGE", "start_char": 19006, "end_char": 19024, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Jaswant Singh, J., V. R. Krishna Iyer, J. also gave a separate opinion."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 19120, "end_char": 19134, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Calcutta", "label": "COURT", "start_char": 19162, "end_char": 19198, "source": "ner", "metadata": {"in_sentence": "JASWANT SINGH, J.\n\nThis appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raise~ the following substantial question of law of general importance:-\n\n\"Whether in view of the provisions of the Copyright Act, 1957, an existing and future rights of music ...... composer, lyricist is capable of assignment and whether the proucer ot a cinematograph film can defeat the same by engaging the same person.\""}}, {"text": "Whether in view of the provisions of the Copyright Act, 1957", "label": "STATUTE", "start_char": 19338, "end_char": 19398, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Perfoming Right Society Ltd.", "label": "ORG", "start_char": 19635, "end_char": 19670, "source": "ner", "metadata": {"in_sentence": "The facts giving rise to the appeal are : The Indian Perfoming Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS') the appellant before us, was incorporated in the State of\n\nMaharashtr~ on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or grant!ng licences for performa'!-ce in puJ;>lic of al!"}}, {"text": "s1", "label": "PROVISION", "start_char": 20041, "end_char": 20043, "source": "regex", "metadata": {"linked_statute_text": "Whether in view of the provisions of the Copyright Act, 1957", "statute": "Whether in view of the provisions of the Copyright Act, 1957"}}, {"text": "JPRS", "label": "ORG", "start_char": 20082, "end_char": 20086, "source": "ner", "metadata": {"in_sentence": "The ncorpora tion of the JPRS was in terms of sectton 2(r) of the Copyngbt Act,\n\nI.P.R. SOCIETY v. E.I.M. PICTURE (Jaswant Singh, !.)"}}, {"text": "IPRS", "label": "ORG", "start_char": 20609, "end_char": 20613, "source": "ner", "metadata": {"in_sentence": "The IPRS\n\nhas amongst its members the composers of musical works, authors of Be literary and dramatic works and artists."}}, {"text": "section 33", "label": "PROVISION", "start_char": 20764, "end_char": 20774, "source": "regex", "metadata": {"statute": null}}, {"text": "IPRS", "label": "COURT", "start_char": 20791, "end_char": 20795, "source": "ner", "metadata": {"in_sentence": "In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1?69 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it propos<•d to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences."}}, {"text": "September 27, 1?69", "label": "DATE", "start_char": 20809, "end_char": 20827, "source": "ner", "metadata": {"in_sentence": "In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1?69 and November 29, 1969 in the 'Statesman' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it propos<•d to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences."}}, {"text": "Cinematograph Exhibitors Association of India", "label": "ORG", "start_char": 21343, "end_char": 21388, "source": "ner", "metadata": {"in_sentence": "A C number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for performance in public of all existing and future musical D works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges."}}, {"text": "section 34", "label": "PROVISION", "start_char": 21478, "end_char": 21488, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 22593, "end_char": 22603, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 23898, "end_char": 23910, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 25348, "end_char": 25358, "source": "regex", "metadata": {"statute": null}}, {"text": "Maia", "label": "ORG", "start_char": 26111, "end_char": 26115, "source": "ner", "metadata": {"in_sentence": "Maia."}}, {"text": "section 72", "label": "PROVISION", "start_char": 26208, "end_char": 26218, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 26580, "end_char": 26590, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 26965, "end_char": 26975, "source": "regex", "metadata": {"statute": null}}, {"text": "Ashok Sen", "label": "OTHER_PERSON", "start_char": 27703, "end_char": 27712, "source": "ner", "metadata": {"in_sentence": "Appear; ng on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted .to him by the owner of the copyright, he makes a .cinematograph film in respect of the work or performs the work in public by cxhibiting the cinematograph filll); that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 13 ( 4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17 (b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright in the work are (a) liy assignment,\n\n(b) by relinquishment and (c) by the composer composing the work in the course of his employment under a contract of service with \"n employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be , decided according to the principle \"where equities are equal, the first\n\nfo time shall prevail\"."}}, {"text": "section 13", "label": "PROVISION", "start_char": 28554, "end_char": 28564, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 28811, "end_char": 28821, "source": "regex", "metadata": {"statute": null}}, {"text": "Sachin Chaudhary", "label": "OTHER_PERSON", "start_char": 29670, "end_char": 29686, "source": "ner", "metadata": {"in_sentence": "Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other."}}, {"text": "J. C. Bhat", "label": "LAWYER", "start_char": 29747, "end_char": 29757, "source": "ner", "metadata": {"in_sentence": "Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other.", "canonical_name": "J. C. Bhat"}}, {"text": "J. L. Nain", "label": "LAWYER", "start_char": 29811, "end_char": 29821, "source": "ner", "metadata": {"in_sentence": "Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other.", "canonical_name": "J. L. Nain"}}, {"text": "Copinger", "label": "OTHER_PERSON", "start_char": 30173, "end_char": 30181, "source": "ner", "metadata": {"in_sentence": "Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other."}}, {"text": "Skone James", "label": "OTHER_PERSON", "start_char": 30186, "end_char": 30197, "source": "ner", "metadata": {"in_sentence": "Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J. C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J. L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinematograph film (which expression, according to Copinger and Skone James on COPYRIGHT,\n\nmeans \"any record of sounds which is incorporated in any print, negative, tape or other."}}, {"text": "England", "label": "GPE", "start_char": 30999, "end_char": 31006, "source": "ner", "metadata": {"in_sentence": "of it, in so far as it consists of visual images, 1s recorded, or which IS issued by the maker\n\nof the film for use in conjunction with such an article\"); that the contention .advanced m behalf of t.he appellant that copyrigh~ in a literary or musical work mcorporated m the sound track of a cmematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfounded; tl\\at unlike (the law) in England, in India unless a music is notationally written, ."}}, {"text": "Copyright Act", "label": "STATUTE", "start_char": 31144, "end_char": 31157, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 31322, "end_char": 31334, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 31919, "end_char": 31928, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 32123, "end_char": 32135, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 32318, "end_char": 32330, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 32391, "end_char": 32401, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(c)", "label": "PROVISION", "start_char": 32470, "end_char": 32483, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 33106, "end_char": 33116, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 33348, "end_char": 33358, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)(ii)", "label": "PROVISION", "start_char": 33822, "end_char": 33842, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(4)", "label": "PROVISION", "start_char": 33867, "end_char": 33880, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)", "label": "PROVISION", "start_char": 34013, "end_char": 34029, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 34247, "end_char": 34260, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 34411, "end_char": 34424, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 34732, "end_char": 34742, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 35857, "end_char": 35867, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 35891, "end_char": 35901, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 36284, "end_char": 36293, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 36991, "end_char": 37000, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 39313, "end_char": 39323, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 40225, "end_char": 40235, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 42293, "end_char": 42303, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 22 and 26", "label": "PROVISION", "start_char": 43896, "end_char": 43914, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 44822, "end_char": 44832, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 45658, "end_char": 45667, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 45766, "end_char": 45779, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 46058, "end_char": 46068, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 46213, "end_char": 46223, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 46306, "end_char": 46316, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 46890, "end_char": 46900, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 47261, "end_char": 47271, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 47281, "end_char": 47294, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 47325, "end_char": 47338, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)(c)", "label": "PROVISION", "start_char": 47818, "end_char": 47834, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 49005, "end_char": 49015, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 49166, "end_char": 49176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 50072, "end_char": 50082, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 50468, "end_char": 50477, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 50479, "end_char": 50492, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14(1)", "label": "PROVISION", "start_char": 50501, "end_char": 50514, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 51197, "end_char": 51206, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 13(1) and 14(1)", "label": "PROVISION", "start_char": 51208, "end_char": 51232, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 51263, "end_char": 51273, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 22 and 26", "label": "PROVISION", "start_char": 51278, "end_char": 51296, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 51858, "end_char": 51868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 53016, "end_char": 53026, "source": "regex", "metadata": {"statute": null}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 53789, "end_char": 53801, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J.-Thc judgment just delivered is on behalf of Ille Court, which makes this footnote, in a sense, otiose.", "canonical_name": "Krishna Iyer"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 55133, "end_char": 55141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1 )(a)", "label": "PROVISION", "start_char": 55275, "end_char": 55287, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 55318, "end_char": 55323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 55737, "end_char": 55745, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 55910, "end_char": 55918, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 56247, "end_char": 56252, "source": "regex", "metadata": {"statute": null}}, {"text": "India responded to this universal need by enacting the Copyright Act, 1957", "label": "STATUTE", "start_char": 57858, "end_char": 57932, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 14", "label": "PROVISION", "start_char": 58502, "end_char": 58512, "source": "regex", "metadata": {"linked_statute_text": "India responded to this universal need by enacting the Copyright Act, 1957", "statute": "India responded to this universal need by enacting the Copyright Act, 1957"}}, {"text": "Indian feature we noticed in the Indian copyright Act", "label": "STATUTE", "start_char": 58686, "end_char": 58739, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s.2", "label": "PROVISION", "start_char": 58915, "end_char": 58918, "source": "regex", "metadata": {"linked_statute_text": "Indian feature we noticed in the Indian copyright Act", "statute": "Indian feature we noticed in the Indian copyright Act"}}, {"text": "s.2(d)", "label": "PROVISION", "start_char": 59658, "end_char": 59664, "source": "regex", "metadata": {"linked_statute_text": "Indian feature we noticed in the Indian copyright Act", "statute": "Indian feature we noticed in the Indian copyright Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 59722, "end_char": 59727, "source": "regex", "metadata": {"linked_statute_text": "Indian feature we noticed in the Indian copyright Act", "statute": "Indian feature we noticed in the Indian copyright Act"}}, {"text": "Parliament", "label": "ORG", "start_char": 60618, "end_char": 60628, "source": "ner", "metadata": {"in_sentence": "Of course, law-making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant."}}]}
{"document_id": "1977_3_225_232_EN", "year": 1977, "text": ", '\n\nCOMMISSIONER OF INCOME TAX, WEST BENGAL A\n\nTOLLYGUNGE CLUB LTD.\n\nMarch 15, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA fAZAL ALI, JJ.]\n\nIncome-tax Act.\n\n1922-S. 15B-Diversion of income or diversion of source-Charity su-rcharge whether inco1ne-Obligation in the nature of trust, how to be created.\n\nThe assesGee was a Company limited by guarantee and owned a Social nd Sports Club one of \\vhose activities consisted of conducting horse races \\vith C amateur riders. It charged for admission into the enclosure of the club admission fee !o the guests introduced by the members of the club as \\Yell as to the members of the public.\n\nIt also charged a surcharge of eight annas solely earmarked for local charities.\n\nThat was done pursuant to a resolution passed at the meeting of the General Body providing that , the surcha!'g<! of eight ann?.s on the f'.:ntrance ticket should be earmarked for local charities.\n\nThe Income Tax Officer pdor to the assessment year 1960-61 did not treat 1he receipts on account of surcharge as trading receipts of the assessee and bring them to tax as income of the aessee. While making the assessment for the assessment year 1960-61, the Income Tax Officer took the vie\\v that the receipts on account of surcharge were revenue receipts in the hands of assessee and they could not be excluded from the total income of the asessee merely on the-ground that they were applied for charitable purposes. It \\Vas common\n\nground that the amounts received by way of surcharge had in fact been disbursed to local charities.\n\nThe Income Tax Officer treated the receipts on account of surcharge as income of the assessee: and allowed rebate under s. 15B in respect of the amounts actually disbursed in favour of local charities.\n\nThe .A.ppellate AssiStant Commissioner confirmed the order of th.e Income Tax Officer on the ground that a person who wished to gain admission to the enclosure of the club had to pay the surcharge whether he was willing to contribute to the charity or not and the amount of the surcharge was therefore a part of the price charged by the assessee for admission and it was accordingly a revenue receipt in the hands of the assessee.\n\nOn further 3.ppeal, the Tribunal held that the surcharge, \\Vas levied on admission ticket for the purpose of charity and hence the receipts in respect of the surcharge were not income of the assessee at the point of time when they reached its hands and being earmarked for charity they never belonged to the assessee.\n\nThe High Court on a reference made by the Tribunal. agreed with the view taken by the Tribunal holding that since the surcharge \\Vas charged by the assessee an<l paid by the race goers for the specific purpose of being applied to local chanties pursuant to the resoluti,-on passed by the general meeting of\n\nthe assessee, there was at the time of receipts of the amounts in respect of the G surcharge, a legally enforcible obligation on the assessee to apply them to local charities and those amounts accordingly did not reach assessee as its income but were diverted to local charities before they reached the assessee.\n\nDismissing the appeal,\n\nHELD : ( 1) Income tax is a tax on income.\n\nEvery receipt by the assessee is not necessarily income in his hands.\n\nIt is only when it bears the H character of income at the time when it reaches the hands of the assessee that it becomes exigible to tax. [228 El\n\nLo11don County Cou11cil v. Attorney General [1901] AC 26.\n\n\n(2) The assumptions of the Revenue that the surcharge was received as part of the price for admission 10 the club enclosure and that there was no legally enforcible obligation on the assessee to spend the amounts on charity are erroneous.\n\nThe admission to the enclosure was the occasion and not the consideration for the surcharge taken from the race-goers.\n\nIt is not a correct analysis of the nature of the legal relationship to say that there v.:as nothing rr.ore than a mere desire or intention on the part of the assessee to apply the amounts received on account of surcharge to the local charities \\Vithout any legally enforcible obligation.\n\nThe resolution was passed at the general meeting of the assessee and pursuant to that resolution the surcharge was paid by the race-goers and received by the assessee for the specific purpose of being applied to local charities. The surcharge when paid was clearly impressed with an obligation in the nature of trust for being applied for the benefit of local charities.\n\nA trust may be created by any language sufficient to show the intention and no technical words are necessary. [228 H, 229 A, C,.\n\nD & GJ\n\nC.I.T v. Thakar Das Bhargava. 40 I.T.R. 301, followed.\n\n(3) In the present case, the surcharge being impressed with an obligation in the nature of trust for being applied to local charities was by this pbligation diverted before it reached the hands of the assessee and at no stage 1t became a part of the income of the assessee.\n\nThe amount of surcharge n.ever reached the nssessec as parts of its income. [230 G-H]\n\nC.I.T. v. Sitaldas TirathdaS, 41 I.T.R. 367, followed.\n\nCML APPELLATE JURISDICATION : Civil Appeal No. 578 of 1972.\n\n, (From the Judgment and Order dated 17-4-1969 of the Calcutta High Court in Income Tax Reference No. 71 /65)\n\nS. C. Manchanda and R. N. Sachthey, for the appellant.\n\nE Sukumar Mitra, Q. N. Mukherjee and N. R. Chaudhary, for the\n\nrespondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThis is an appeal on a certificate of fitness_ granted by the High Court of Calcutta under section 66A, sub-section (2) of the Indian Income-tax Act, 1922.\n\nThe facts giving rise to the appeal are few and may be briefly stated as follows.\n\nThe asscssee is Tollygunge Club Ltd., a company limited by guarantee, and it owns a social and spm; ts club one of whose activities consists of conducting Gymkhana races, that is, horse races with 11mateur riders.\n\nIt charges for .admission into the enclosure of the Club at the time of the races, admission fee to the guests introduced by the members of the Club as well as to the members of the public.\n\nThere is no dispute between the parties that the admission fee received, by the assessee constitutes trading receipt i_n the hands of the assessee exigible to tax.\n\nBut it appears that on 28th February, 1945 a resolution was , passed at the meeting of the General Body of the Club for levying a surcharge of eight annas over and above the admission fee, the proceeds of which were to go to the Red Cross Fund. This - resolution was subsequently varied by another resolution dated 30th January, 1950 and the new resolution provided that the surcharge of eight annas on entrance ticket should be earmarked \"for local charities and not solely for the Indian Red Cross\".\n\nThe assessee\n\n.,,,.,\n\n• (.\n\n...\n\naccordingly issued to every entrant to the enclosure on the race course A two tickets one an admission ticket for admission to the enclosure of the Club a'nd the other, a separate ticket in respect of the surcharge -0f eight annas for local charities.\n\nThe slip in respect of the surcharge -0f eight annas was in the following term:\n\n\"Surcharge on admission to The Tollygunge Gymkhana Races for Local Charities Rs. 4/8 Enclosure Surcharge Rs. -181-\"\n\nThe receipts from the surcharge were not credited to the profit and loss account but they were carried directly to a separate account styled 'Charity Account'.\n\nThese receipts on account of surcharge were not treated as tradil)g receipts of the assessee and were not brought to tax as income of the assessee in the assessment years perior to the as.essment year 1960-61.\n\nBut while making assessment for the .assessment year 1960-61, the Income Tax Officer took the view that receipts on account of surcharge were revenue receipts in the hands of the asscssee and they would not be excluded from the total Income of the assessee merely on the ground that they were applied for charitable purposes. It may be pointed out at this stage that it was not disputed before the Revenue authorities that the amounts realised by way of surcharge had been disbursed to local charities and in fact a list was filed showing the local charities in whose favour such disbursement had been made.\n\nThe Income Tax Officer treated the disbursement of the amounts received on account of surcharge as application of the income belonging to the assessee and he accordingly included these receipts in the total income of the assessee, but allowed rebate under section 15B on the amounts actually disbursed in favour of local charities during the accounting year.\n\nThis view taken by the Income Tax Officer was affirmed on appeal by. the Appellate Assistant Commissioner who held that a person who wished to gain admission to the enclosure of the aub on any racing day had to pay the surcharge whether he was willii'ig to contributes to the charity or not and as such the amount of the surcharge was a part of the price charged by the assessee for admission to the enclosure and it was, therefore, a revenue receipt in the hands of the assessee.\n\nThis was followed by a further appeal to the Tribunal and this time the assessee was successful.\n\nThe Tribunal held that the suichange. was levied on admission tickets for the purpose of charity and hence the receipts in respect of the surcharge were not income of the assessee at the point of time when they reached its hands and being \"earmarked for charity\", they ... nevcr belonged to the assessee\" and were hence not includible in the taxable income of the assessee.\n\nThe Tribunal accordingly directed that the receipt of the surcharge credited to the charity account should be\n\ndeleted from the total income of the assessee.\n\nD '\n\nSUPREME COURT REPORTS [1977] .J_s.C.R.\n\nThe Commissioner then moved the Tribunal for stating a case to the High Court on the question of law which arose out of the order of the Tribunal.\n\nThe Tribunal was of the opinion that a question of law did arise out of its order. and hence it formulated a question in the following terms:\n\n\"Whether, on the -facts and in - the circumstances of the case, the Appellate Tribunal was right in holding that the assessee's receipts from the surcharge levied on admission tickets for purposes of charity could not be included in the assessee's taxable income for the assessment year 1960-61?\",\n\nand referred it to the High Court for its opinion.\n\nThe High Court agreed with the view taken by the Tribunal and held that since the surcharge on admission tickets_ was charged by the assessee and paid by the race-goers for the specific purpose of being applied lo local charities pusuant to the resolution passed by the general meeting of the assessee, there was, at the time of receipt of the amounts in respect of the surcharge, a legally enforceable obligation on the assessee to apply them to local charities and those amounts accordingly did not reach the assessee as its income but were diverted to local charities before they reached the assessee. The correctness of this decision is questioned by the Commissioner in the present appeal under section_ 66A, sub-section (2) of the Act.\n\nIt is familiar learning and yet Lord Magnaughten had to draw our attention to it in London County Council v. Attorney General(') that income tax is a tax on income.\n\nIt is what reaches the assessee as income that is intended to be charged to tax under the Act.\n\nEvery receipt by the assessee is not necessarily income in his hands. It is only when it bears the character of income at the time when it reaches the hands of the assessee that it becomes exigible _to tax. The quest on which, wherefore, arises for determination here is whether the amounts received F on account of surcharge reached . the hands of the assessee as its income.\n\nThe argumentof the Revenue was that these amounts were received by the assessec as part of the price for admission into the enclosure of the Club and merely because the assessee expressed its desire or_ intention to apply them to local charities, they did not cease to be the income of the assessee. _ This argument is based on\n\ntwG assumptions: first, that the amounts on account of surcharge G - were received as part of the price for admission to the Club enclosure, and secondly, that it was merely a voluntary desire on the part of the assessee to use these amounts for private charities and there was no legally enforceable obligation on the assessee to do so.\n\nThese two assumptions are .in a way inter-related, each depending on and to some extent supporting the other, but in our view neither of them is well founded.\n\nIt is not correct to say that merely because sur- H charge is levied from every race-goer, Vfho wants admission to the enclosur!' of the Club, it becomes a part of the price for admission.\n\nThe ' ' ' - ,\n\n(I)\n\n[1901] A.C.26. \"\n\n.r-\n\n- .\n\ntest is not whether every race-goers seeking admittance to the enclosure of the Club is required to pay the surcharge but what is it for which the surcharge is taken. Is it taken as part of the price for admission, or for some other purpose, such as, benefit of local charities ? Suppose every race-goer seeking admittance to the Club enclosure were told that in addition to the price of the admission ticket he would have to contribute a certain amount to a recognised charity, could it be contended that the amount which he is required to contribute to charity--{lnd we are deliberately using the word 'required' because otherwise he would not be able to secure admittance to the Club enclosure is part of the price for admission? the surcharge is undoubtedly a payment which a race-goer is required to make in addition to the price of admission ticket if he wants to witness the race from the Club enclosure, but on that account it does not become part of the price for admission.\n\nThe admission to the enclosure is the occasion and not the consideration for the surcharge taken from the race-goer. It is true that but for this insistence on payment of the surcharge at the time of admission to the enclosure, the race-goer might not have paid any amount for local charities.\n\nBut that does not render the payment of the surcharge involuntary, because it is out of his own volition that he seeks admittance to the enclosure and if he wants such admittance, he has to pay not only the price of the admission ticket but also the surcharge for local charities.\n\nThe surcharge is clearly not a part of the price for admission but it is a payment made for the specific purpose of being applied to local charities.\n\nSecondly, it is not a correct analysis of tho nature of the legal relationship to say that there was nothing more than mere desire or intention on the part of the assessee to apply the amounts received on account of surcharge to local charities, without any legally enforceable obligation binding it to do so.\n\nWe may straightaway concede that if nothing more had been done by the assessee than merely passing a resolution deciding to utilise a part of the admission fee received by it to charitable purposes, no legal obligation would have been created obliging the assessee to utilise this amount for the purpose of charity.\n\nSuch a resolution would have left it open to the assessee to alter it or to rescind it and it would have been nothing but an expression of the desire or intention of the assessee to apply the amount for charitable purposes. But here a resolution was passed at the general meeting of the assessee for levying the surcharge for local charities and pursuant to this resolution, the surcharge was paid by the race-goers and received by the assessee for the specific purpose of being applied to local charities.\n\nThe surcharge when paid was clearly impressed with an obligation in the nature of trust for being applied for the benefit of local charities.\n\nIt is settled law, as observed, by this Court in C1.T. v.\n\nThakar Das Bhargava (') that a trust may be created by any language sufficient to show the intention and no technical words are necessary and it may even be created by the use of words which are primarily words of condition.\n\nThe only requisites which must be satisfied are that there should be \"purposes independent of the donee to which the subject-matter of the gift is rquird to be applied\n\n(2) 40 LT. Tl. 101.\n\nand an obligation on the donee to satisfy those purposes\".\n\nWhen the race-goers paid the surcharge to the assessee, they did so far a specific purpose and thereby imposed an obligation on the assessee to utilise it for local charities.\n\nThe question then arises whether this obligation to utilise the surcharge for local charities was an obligation to apply the surcharge to local charities after it reached the assessee as its income or it was diverted for being applied to local charities before it was resolved by the assessee.\n\nDid it involve an application by the assessec of a part of its income to local charities, or was it rather an allocation of a receipt for local charities before it became income in the hands of the assessee ? The true test for determining this question is, to use the words of Hidayatullah, J., in C.l.T. v. Sitaldas Tirathdas(') whether the amount sought to be deducted, in truth, reaches the asscssee as his income. The learned Judge proceeded to explain this test in the following words :\n\n\"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessce as nis income. Obligations, no doubt, there are in every case, but il is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply but of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.\n\nWhere by the obligation income is diverted before it reaches the assessee, it is deductible : but where the income is required to be applied to discharge an obligation after such income reaches the asscssee, the same consequence, in the law, does not follow.\n\nIt is the first kind of payment which can truly be excused and not the second.\n\nThe second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied.\n\nThe first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family\\ received a portion of the income of the assesec, after the assessee had received the income as his own. The case once is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another's income\".\n\nIt is dear on the application of this test that in the present case, the surcharge being impressed with an obligation in the nature of trust for being applied to local charities was by this obligation diverted before it reached the hands of the assessec and at no stage, it became a part of the income of the assessee.\n\nWhen the assessee received the amounts on account of surcharge, they were impressed with a legal\n\n(I) 411.T.R 367.\n\nobligation to be applied for the benefit of local charities and they never reached the assessee as part of its income.\n\nThe case clearly fell within the rule in Raja Bijoy Singh Dudhuria v. C./.T.(') and the surcharge received by the assessee could not be regarded as income assessable to tax.\n\nBefore we end the discussion of this question, we must refer to the decision of this Court in Thakar Das Bhargava's case (supra) on which strong reliance was placed on behalf of the Revenue.\n\nThe assessee in this case was an advocate who agreed to defend certain accused persons in a criminal trial on condition that he would be provided with a sum of Rs. 40,000/- for creating a public charitable trust.\n\nWhen the trial was over, the assessee was paid a sum of Rs. 32,500/-\n\nand he created a trust of that amount by executing a trust deed. The question arose whether this sum of Rs. 32,500/- was liable to be taxed as part of the professional income of the assessee. This question was answered by the High Court in favour of the assessee but the view taken by the High Court was reversed by this Court on appeal. This Court pointed out that the findings of the Tribunal clearly showed \"that the persons who paid the sum of Rs. 32,500/- did not use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed, proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case.\" Considerable reliance was placed by this Court on the recital in the trust deed where the assessee had said \"that he was receiving his professional income as an advocate accruing after June 1944 for payment of taxes and charity and accordingly when he received his professional income in the F arrukhnagar case he created a charitable trust out of the money so received.\" It was also emphasised by this Court that it was not stated any where \"that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee\" and even in the affidavit made by the assessee there was \"no suggestion that the persons who paid the money created the trust or imposed any obligation on the assessee\" and it was \"the assessee's own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case\" and \"such a voluntary desire on the part of the assessee created no trust, nor did it give rise to any legally enforceable obligation\".\n\nThis Court accordingly held that \"the money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him\". It will be seen from what is stated above that when the accused person paid a sum of Rs. 32,500/- to the assessee, they paid it by way of fees and they did not impose any obligation on the assessee that this amount should be utilised only for the purpose of charity. It was merely a voluntary desire on the part of the assessee that he would create a trust m1t of the amount of fees paid to him and until ilie\n\n(I) [193311 I.T.R. 135 A.LR. 1933 P.C. 145.\n\n16--240SCI/77\n\ntrust was created by the assessee, there was no legal obligation to utilise that amount for charity. That is why this Court held that the amount when received by the assessee was income in his hand and the creation of trust was merely application of the amount after it reached his hands as his income. This C9urt by approving the following observations of the Appellate Assistant Commissioner that \"if the accused persons bad themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the asscssee trustee for the money so paid to him for that purpose, it could, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was no indication anywhere\" clearly suggested that if the money paid by the accused persons had been \"earmarked for charity ab initio\" it would have been pqssible to say that they had made the assessee trustee for the money so paid to him and in that event the conclusion would have been that the money did not reach the hands of the assessee as bis income.\n\nHere, the surcharge paid by the race-goers was earmarked for local charities ab initio and the surcharge was received by the assessee with a legal obligation to apply it to local charities.\n\nThe decision of this Court in Thakar Das Bhargava's case (supra), therefore, far from militating against the contention of the assessee, supports it.\n\nWe must accordingly hold that the High Court was right in answering the question referred to it in favour of the assessee and in this view, the appeal must stand dismissed with costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 29, "entities": [{"text": "COMMISSIONER OF INCOME TAX, WEST BENGAL", "label": "PETITIONER", "start_char": 5, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "A\n\nTOLLYGUNGE CLUB LTD", "label": "RESPONDENT", "start_char": 45, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "TOLLYGUNGE CLUB LTD", "offset_not_found": false}}, {"text": "March 15, 1977", "label": "DATE", "start_char": 70, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "March 15, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA fAZAL ALI, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 87, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "S. MURTAZA fAZAL ALI, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 134, "end_char": 148, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 15B", "label": "PROVISION", "start_char": 156, "end_char": 162, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15B", "label": "PROVISION", "start_char": 1663, "end_char": 1669, "source": "regex", "metadata": {"statute": null}}, {"text": "CML APPELLATE JURISDICATION", "label": "PETITIONER", "start_char": 5099, "end_char": 5126, "source": "ner", "metadata": {"in_sentence": "CML APPELLATE JURISDICATION : Civil Appeal No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 5214, "end_char": 5233, "source": "ner", "metadata": {"in_sentence": ", (From the Judgment and Order dated 17-4-1969 of the Calcutta High Court in Income Tax Reference No."}}, {"text": "S. C. Manchanda", "label": "LAWYER", "start_char": 5271, "end_char": 5286, "source": "ner", "metadata": {"in_sentence": "71 /65)\n\nS. C. Manchanda and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5291, "end_char": 5305, "source": "ner", "metadata": {"in_sentence": "71 /65)\n\nS. C. Manchanda and R. N. Sachthey, for the appellant."}}, {"text": "E Sukumar Mitra", "label": "LAWYER", "start_char": 5327, "end_char": 5342, "source": "ner", "metadata": {"in_sentence": "E Sukumar Mitra, Q. N. Mukherjee and N. R. Chaudhary, for the\n\nrespondent."}}, {"text": "Q. N. Mukherjee", "label": "LAWYER", "start_char": 5344, "end_char": 5359, "source": "ner", "metadata": {"in_sentence": "E Sukumar Mitra, Q. N. Mukherjee and N. R. Chaudhary, for the\n\nrespondent."}}, {"text": "N. R. Chaudhary", "label": "LAWYER", "start_char": 5364, "end_char": 5379, "source": "ner", "metadata": {"in_sentence": "E Sukumar Mitra, Q. N. Mukherjee and N. R. Chaudhary, for the\n\nrespondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 5447, "end_char": 5455, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThis is an appeal on a certificate of fitness_ granted by the High Court of Calcutta under section 66A, sub-section (2) of the Indian Income-tax Act, 1922."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 5523, "end_char": 5545, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThis is an appeal on a certificate of fitness_ granted by the High Court of Calcutta under section 66A, sub-section (2) of the Indian Income-tax Act, 1922."}}, {"text": "section 66A", "label": "PROVISION", "start_char": 5552, "end_char": 5563, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5588, "end_char": 5615, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tollygunge Club Ltd.", "label": "ORG", "start_char": 5717, "end_char": 5737, "source": "ner", "metadata": {"in_sentence": "The asscssee is Tollygunge Club Ltd., a company limited by guarantee, and it owns a social and spm; ts club one of whose activities consists of conducting Gymkhana races, that is, horse races with 11mateur riders."}}, {"text": "28th February, 1945", "label": "DATE", "start_char": 6295, "end_char": 6314, "source": "ner", "metadata": {"in_sentence": "But it appears that on 28th February, 1945 a resolution was , passed at the meeting of the General Body of the Club for levying a surcharge of eight annas over and above the admission fee, the proceeds of which were to go to the Red Cross Fund."}}, {"text": "30th January, 1950", "label": "DATE", "start_char": 6587, "end_char": 6605, "source": "ner", "metadata": {"in_sentence": "This - resolution was subsequently varied by another resolution dated 30th January, 1950 and the new resolution provided that the surcharge of eight annas on entrance ticket should be earmarked \"for local charities and not solely for the Indian Red Cross\"."}}, {"text": "section 15B", "label": "PROVISION", "start_char": 8496, "end_char": 8507, "source": "regex", "metadata": {"statute": null}}, {"text": "Magnaughten", "label": "OTHER_PERSON", "start_char": 11181, "end_char": 11192, "source": "ner", "metadata": {"in_sentence": "It is familiar learning and yet Lord Magnaughten had to draw our attention to it in London County Council v. Attorney General(') that income tax is a tax on income."}}, {"text": "Vfho", "label": "OTHER_PERSON", "start_char": 12703, "end_char": 12707, "source": "ner", "metadata": {"in_sentence": "It is not correct to say that merely because sur- H charge is levied from every race-goer, Vfho wants admission to the enclosur!'"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 17126, "end_char": 17138, "source": "ner", "metadata": {"in_sentence": "The true test for determining this question is, to use the words of Hidayatullah, J., in C.l."}}, {"text": "Thakar Das Bhargava", "label": "OTHER_PERSON", "start_char": 19721, "end_char": 19740, "source": "ner", "metadata": {"in_sentence": "Before we end the discussion of this question, we must refer to the decision of this Court in Thakar Das Bhargava's case (supra) on which strong reliance was placed on behalf of the Revenue."}}, {"text": "Farrukhnagar", "label": "GPE", "start_char": 20703, "end_char": 20715, "source": "ner", "metadata": {"in_sentence": "They were anxious to have the services of the assessee in Farrukhnagar case; the assessee was at first unwilling to give his services and later he agreed, proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case.\""}}, {"text": "arrukhnagar", "label": "GPE", "start_char": 21242, "end_char": 21253, "source": "ner", "metadata": {"in_sentence": "Considerable reliance was placed by this Court on the recital in the trust deed where the assessee had said \"that he was receiving his professional income as an advocate accruing after June 1944 for payment of taxes and charity and accordingly when he received his professional income in the F arrukhnagar case he created a charitable trust out of the money so received.\""}}]}
{"document_id": "1977_3_233_248_EN", "year": 1977, "text": "STATE OF KERALA A\n\nK. T. SHADULI YUSUFF ETC.\n\nMarch 15, 1977\n\n[P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.,] B\n\nKera/a General Safes Tax Act, 1963-S. 17(3)-Scope of-Best judgment .assessn1ent 1nade relying 011 entries in account books of other dealers-Assessee -If e11titlcd to cross-exan1ine the dealers.\n\nNatural iustice-Scope in tax matters-Best Judgment assessnient made relyuig on en/lies in account books of other dealers-Cross-examination of dealers-If par/ of pruiciples of 11atr11al Justice.\n\nSection 17(3) of the Kerala General Sales Tax Act 1963 provides that if the return submitted by an assessee appears to be incorrect or incomplete, the assessing authority may assess the dealer to the best of its judgment.\n\nThe oroviso to the sub-section enacts that before taking action under the sub-cc iion, the dealer shall be given a reasonable opportuniry of being heard aud, Yihere a return has been submitted, to prove the correctness of completeness of\n\nuch return.\n\nRelying on the evidence furnished by entries in the books of acc9unt of 5ome olher dealers, the Sales Tax Officer disbelieved the assessee's a~(..OUnts and came to the conclusion that the return field by hin:1 was incorrect and incomplete and made a best judgment assessment under s. 17(3). fhe\n\nassesee's request to cross-examine the dealers in regard to the correctne:-.s of their accounts was rejected by the Sales Tax Officer. Jn revision the High Court quashed the order of the Sales Tax Officer.\n\nDismissing the State's appeal,\n\n(Per Bhagwati and Sarkaria, JJ}\n\nHELD .\n\nThe assessee was entitled to cross-examine the dealers under thi.: second part of the proviso to s. 17(3).\n\nThe Sales Tax Officer's refi.,_al to summon the dealers for cross-examination by the assessee constituted infraction\n\nof ti1e right conferred on the assessee by the second part of the prov1su and F that vitiated the order of assessment made against him. [239 F]\n\n(I) The rule which requires an opportunity to be heard to be given ro a person likely to be affected by a decision is not an inflexible rule having a fixed connotation.\n\nIt has a variable co:i; iten_t epending on the. na.ture of the .inquiry, the framework of the law under which 1t rs held, the const1tutton of the atthority hoiciing the inquiry, the nature and character of the right affected and tne coHsequences :flo\\ving from the decision.\n\nThe rule of audi alterem partc1n does not require in every case a specified procedure to be followed.\n\nIn a given case, G the rule of audi alterem parte1n may import a requirement that witnesses, wilo5e statemenls are sought to be relied upon by the authority holding the inquiry, should be permitted to be cross-examined by the party affected while in s0me other cases it mav not. The procedure required to be adopted for giving an\n\nopiJortunity to a person to be heard must necessarily depend on the facts and circumstances of each case. rz37 B-Dl\n\n(2) (a) It is only on the existence of one of two conditions, namely, that H n.J return is submitted by the assessee or the return submitted appears to be incorrect or incomplete that the Sales Tax Officer gets the jurisdiction to make a be'St judgn1ent assessment. [237 H]\n\n.II\n\n(b) The second. part of the proviso lays down that here a return has been . submitted, the assessee should be given a reasonable opportunity to pro,•e, the correctness or completeness of such return. ..To prove\"' means to establish the correctness or. completeness of the return by any mode permissible under taw.\n\nThe Oppor_tun1ty to prove would, !herefore, necessarily carry with it the right to CxaDllne w1esses and that would include equally the right to cross-exarniae wt nesses examined by the Sales Tax Officer. [238 G-HJ\n\nJn the instant case, the assessee could prove the correctness and completnes~ of his return only by showing that the entries in the books of account of the dealers on which the Sales Tax O_fficer relied, were false, bogus or manipulated and that bis return should not be disbelieved on the basis of such entries. 'I his could not be done unless an \"opportunity to: cross exan1ine the dealers was given.\n\n[239 BJ · ,\n\n.-.I\n\n.i.-turlimohan Prabhudayal v. State of Orissa~ 2~ S.T.C. 22 and 1.1. Appukutry\n\nv. Stt:t_e of Kera/a~ 14 S.T.C. 489 approved,\n\nFazal Ali, J. (concurring).\n\nSection 17(3) with the proviso'. thereto and r. 15, have given a statutory right to tl1e assc,, e to prove the correctness of his return and the assesee \\\\'~J fntitled to cross..examine the wholesale dealers, relying on whose accounts the Sales Tax Officer 1nade a best judgment assessment. [247 E]\n\n(1) Th: ,,_.ell-settled rules in regard to best judgment assessment are (i) The taxing authority must not act dishonestly or vindictively or capriciously.\n\nHe must make what he honestly believes to be a fair estimate of the proper figures of assessment and for this purpose, he must be able to take into consideration all matters which he thinks will assist him in arriving at a fair and proper estimate. Though it must necessarily be guess work it must be honest guess Work. [241 EJ ·\n\n'ii) Although tax proceedings are quasi-judicial and tt..e-Salcs Tax Officer is_ noL bound strictly by rules of evidence, yet he must base his order on materials known to the assesee and after he has been given a chance to rebut the same.\n\n[244 E) .\n\n(iii) Admissibilitv of a document or material in evidence is quite different from the value \\vhiCh the authority would attach to such materia1. 1'he tax auttrority can even. base its conclusion on private .opi!1ion or asSessmcttt provided the same is fu11y disclosed to the assessee and he ts given an opportunity to rebut the same. [242 E]\n\nlnconie-t.a:t ClJmmissioller v.\" Badridfis Ra111rai Shop, Al..ofa ! 1\n\n1)37; 64 I.A. 102 114 115 and Dhakeswari Cotton !.-fills Ltd. v. Com1nissio11er of 111cometax,' Wesi Bengal, [1955] 1 S.C.R. 941 followed.\n\nUar; T1ubar 11.fandal Harihar Mandal v. State of Bihar 8 S.T.C. 770 and C~ Vasaniilal & Co. v. C.l.T. Bombay City 45 LT.R. 206 referred to.\n\nSeth Gurmukh Singli v.\n\nComissioner of Income-tax Punjab, (1944] 12 J.T.R. 393 approved •\n\n., flJ The \\\\l\"'rds \"opportunity of being heard\" ills. lil3) ace Of very wide amPlide.\n\nAi that the court has to see is whether the assesee had been gi\".en , a fair hearing. \\Vhether the hearing would extend to ttie r1gnt of demandLng crossexamination oL witnesses or not, 'Y?uld depend upo!1 the. nature of the matetials r\\!lled uron by the tax autbonuc,,. the manner tn wh1cl\\ the a<; Sessee cars rebut those materials and the facts and circumstances of each case. [234\n\nF-G]\n\nKERALA v. K. T. SHADULI YUSUFF (Bhagwati, J.) 235\n\n(b) The second part of the proviso confers benefit on the assessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of his return.\n\nSecondly, r. 15 clearly shows that where the retu1n of the assessee is incorrect or incomplete he must be called upon to prove the correctness or completeness of the same.\n\nIt also enjoins on. the Sales Tax Officer that a reasonable opportunity of being heard should be given to .the assessee to prove the correctness and completeness of the return.\n\nThe requirement of the second part of the proviso to s. 17(3) is reiterated in r. 15. [244 F;\n\n247 DJ\n\nIn the instant case, if the assessee desired the dealers whose accounts were used against him to be cross-examined to prove that his return was not incorrect or incomplete, he could not be denied this opportunity.\n\nThe dealers might have made the entries to embarrass the assessee or they might have animus or business rivalry with the assessee.\n\nThe assessee could establish the correctness of his return only if he was allowed to cross examine the dealers. 1244 Hl\n\nJayalllilal Thakordas v. State of Gujarat 23 S.T.C. 11 distinguished.\n\nM. Appukutty v. State of Kerala, 14 S.T.C. 489 and Muralimohan Prabhudayal v. State of Orissa, 26 S.T.C. 22 approved.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 572-574 and 575 of 1972.\n\n(Appeals by Special Leave from the Judgment and Order dated D 13-7-1971 of the Kerala High Court in Tax Revision Cases Nos. 42, 45, 58 and 44 of 1970.)\n\nS. V. Gupte (In CA No. 572/72), K. M, K. Nair and A. C.\n\nPudissery for the appellant in all the appeals.\n\nT. A. RamachRndran, for the respondents in all the appeals.\n\nThe Judgment of P. N. Bhagwati and R. S.\n\nSarkaria, JJ. was delivered by Bhagwati, J., S. Murtaza Fazal Ali, J. gave a separate opinion.\n\nBHAGWATI, , J.\n\nThe facts giving ri'se to these appeals are set out in the judgment about to be delivered by our learned brother S.\n\nMurtaza Fazal Ali and we do not think it necessary to reiterate them.\n\nSo far as Civil Appeals 572-57 4 of 1972 are concerned, it would be sufficient to state briefly lhe following facfs as these are the only facts necessary for appreciating the question of Jaw which arises for determination in these appeals. In the assessments of the assessee to sales tax for three assessment years the returns filed by him on the basis of his books of account appeared to the Sales Tax Officer to be incorrect and incomplete since certain sales appearing in the books of account of one Haji P. K. Usmankutty as having been effected by the assessee in his favour were not accounted for in the books of account maintained by the assessee. The assessee applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutty in regard to the correctness of his accounts, but this opportuntry wa:~ denied to him and the Sales Tax Officer proceeded to make a best jud!lffient assessment under section 17, sub-section (3) of the Kerala _General Sales Tax, 1963. The assessee appealed but without success and this was followed by a revision application . to\n\nthe High Court. The High Court took the view that the assessee was entitled to an opportunity to cross-examine Haji Usmankutty before any finding could be arrived at by the Sales Tax Officer that the returns filed by the assessee were incorrect and incomplete so as l:o warrant the making of the best judgment assessment and since no such opportunity had been given to the assessee, the High Court quashed the order of the Sales Tax authorities and remanded the case to the Sales Tax Officer for making fresh assessmen\\s according to law after giving an opportunity to the assesse to cros_s-examine Haji Usmankutty. The facts in Civil Appeal No. 575 of 1972 are almost identical, save that instead of Haji Usmankl1tty, certain wholesale dealers were sought to be cross-examined in that case and the opportunity to cross-examine them was denied by the Sales Tax authorities.\n\nSince the High Court quashed the orders of assessments in both cases, the State preferred an appeal by special leave in each case challenging the correctness of the view taken by the High Court.\n\nNow, the law is well settled that tax authorities entrusted with the power to make assessment of tax discharge quasi-judicial functions and they are bound to observe principles of natural justice in reaching their conclusions. It is true, as pointed out by this Court in Dhakes-\n\n1\\'ari Cotton Mills Ltd. v.\n\nCommissioner of Income Tax, West Bengal(') that a taxing officer \"is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a court of law\", but that does not absolve him from the obligation to comply with the fundamental rules of justice which have come to be known in the jurisprudence of administrative law as principles of natural justice. It is, however, necessary to remember that the rule's of natural justice are not a constant : they are not absolute and rigid rules having uni versa! application. lt was pointed out by this Court in Suresh Koshy George v. The University of Kerala & Ors. (2) that. \"the rules of natural justice are not embodied rules\" and in the same case this Court approved the following observations from the judgment of Tucker, L. J. in Ru; sel v.\n\nDuke of Norfolk and Ors. (3) :\n\n\"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt whh, and so forth.\n\nAccordingly. 1 do not derive much assistance from the definitions of natural justice which have been from time io time used, but. whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.\"\n\nOne of the rules which constitutes a part of the principles of natural justice is the rule of audi alterem partem which requires that\n\n\n(2) [1969] I S.C.R. 317.\n\n(3) [1949] 1 AU. England Reports 108.\n\nKERALA v. K. T. SHADULI YUSU).'F (Bhagwati, l.) 237\n\nno man should be condemned unheard. It is indeed a requirement of the duty to act fairly which lies on all quasi judicial authorities and this duty has been extended also to the authorities holding administrative enquiries involving civil consequences or affecting rights of parties because, as poinied out by this Court in A. K. Kraz'pak and Ors. v. Union of India,(') \"the aim of the rules of natural justice is .to secure justice or to put it negatively to prevent miscarriage of justice\"\n\nand justice, in a society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi judicial authorities but also by authorities discharging administrative functions.\n\nThis rule which requites an opportunity to be heard to be given to a person likely to be affected by a decision is also, like the g,,; ms of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the inquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision.\n\nIt is, therefore, not possible to say that in every case the rule of audi alterem partem requires [that] a particular specified procedure to be followed.\n\nIt may be that in a given case the rule of audi alterem partem may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not.\n\nThe procedure required to be adopted for giving an opportunity to a person to be heard must necessarily depend on the facts and circumstances of each case.\n\nNow, in the present case, we are not concerned with a situation where the rule of audi alterem partem has to be read .into the statutory provision empowering the taxing authorities to assess the tax. Section 17, sub-section ( 3), under which the assessment to sales tax has been made on the assessee provides as follows :\n\n\"If no return is submitted by the dealer under subsection ( 1) within the prescribed period, or if th~ return submitted by him appears to the assessing authority to be inco; rect or incoll!plete, . the assessing authority shall, after makmg such enqmry as 1t may consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :\n\nProvided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return.''\n\nIt is clear on a plain natural construction of the language of this provision that it empowers the Sales Tax Officer to make a best Judgment assessment only where one of two conditions is satisfied :\n\n(l) [19701 I S.C.R. 457.\n\neither no return is submitted by the assessee or the return submitted by him appears to the Sales Tax Officer to be incorrect or incomplete. It is only on the existence of one of these two conditions that the Sales Tax Officer gets the jurisdiction to make a best judgment assessment.\n\nThe fulfilment of one of these two pre-requisites is, therefore, a condition precedent to the assumption of jurisdiction by the Sales Tax Officer to make assessment to the best of his judgment.\n\nNow, where no return has been submitted by the assessee, one of the two conditions necessary for the applicability of section 17, subsection ( 3) being satisfied, the Sales Tax Officer can, after making such inquiry as he may con'sider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and in such a case, he would be bound under the proviso to give a reasonable opportunity of being heard to the assessee.\n\nBut in the other case, where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment.\n\nThe decision making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted : the first stage would be the reaching of satisfaction by the Sale's Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment.\n\nThe first part of the proviso which requires that before taking action under sub-section ( 3) of section 1 7, the assessee should be given a reasonable opportunity of being heard would obviously apply not only at the second stage but also at the first stage of the inquiry, because the best judgment assessment, which is the action under section 17, sub-section (3), follows upon the inquiry and the \"reasonable opportunity of being heard\" must extend to the whole of the inquiry, including both stages.\n\nThe requirement of the first part of the proviso that the assessee should be given a\n\n\"reasonable opportunity of being heard\" before making best judgment assessment merely embodies the audi alterem partem rule and what is the content of this opportunity would depend, as pointed out above, to a great exte_nt on the facts and circumstances of each case.\n\nThe question debated before us was whether this opportunity of being heard granted under the first part of the proviso included an opportuuity to cross-examine Haji Usmankutty and other wholesale dealer's on the basis of whose books of accounts the Sales Tax Officer disbelieved the account of the assessee and came to the finding that the return submitted by the as'sessee were incorrect and incomplete. But it is not necessary for the purpose of the present appeals to decide this question since we find that in any event the assessee was entitled to this opportunity under the 'second part of the proviso.\n\nThe second part of the proviso lays down that where a return has been submitted, the assessee shonld be given a reasonable opportunity to prove the correctness or completeness of such return.\n\nThis requirement obviously applies at the first stage of the enquiry before the Sales Tax Officer comes to the conclusion that the return submitted by the assessee is incorrect or incomplete so as to warrant the making of a best judgment assessment.\n\nThe question is what is the content\n\nXERALA v. K. T. SHADULI YUSUFF (Bhagwati, ].) 239\n\nof this provision which imposes an obligation on the Sales Tax Officer to give and confers a corresponding right on the assessee to be afforded, a reasonable opportunity \"to prove the correctness or completeness of such return\". Now, obviously \"to prove\" means to establish the Correctness or comrleteness of the return by any mode permissible \"Under law.\n\nThe usl.lai mode recognised by Jaw for proving a fact is by production of evidence and evidence includes oral evidence of witnesses.\n\nThe opportunity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to cross-examine witnesses examined by the Sales Tax Officer.\n\nHere, in the present •Case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the books of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usmankutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was incorrect or incomplete.\n\nPlaced in these circumstances, the a'ssessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis of such entries, and this obviously, the assessee could not do, unless he was given an opportunity of cros's-examining Hazi Usmaukutty and other wholesale dealers with reference to their accounts.\n\nSince the evidentiary material procured from or produced by Hazi\n\nUsmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination. It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing truth and exposing falsehood.\n\nHere, it was not disputed on behalf of the Revenue that the assessee in both cases applied to the Sales Tax Officer for summoning Hazi Usmankutty and other wholesale dealers for cross-examination, but his application was turned down by the Sales Tax Officer. This act of the Sales Tax Officer in refusing to summon Hazi Usmankutty and other wholesale dealers for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against the assessee.\n\nWe do not wish to refer to the decisions of various High Courts on this point since our learned brother has discussed them in his iu.dgment. Y1e are f the opinion that the view taken by the Orissa Htgh Court m Muralimohan Prabhudayal v. State of Orissa(I) and\n\nthe Kerala High Court in M. Appukulty v. State of Kerala(2) and the present cases represents the correct Jaw on the subject.\n\nWe accordingly dismiss the appeals with no order as to costs.\n\n(I) 26 S.T, C, 22.\n\n(2) 14 S.T.C, 489.\n\nFAZAL Au, J.-These appeals by special leave involve an interesting question of law as to the interpretation of s. 1 7 ( 3) of the Kerala Genera\\ Sales Tax, 1963-hereinafter referred to as 'the Act'-and the proviso thereof read with r. 15 framed under the Act.\n\nThe assessment years in question are 1965-66, 1966-67 and 1967-68 in the case of the respondent K. T. Shaduli in Civil Appeals Nos. 572-574 of 1972 and 1967-68 in the case of Nallakandy Yusuff in Civil Appeal No. 575 of 1972. But both the cases involve an identical question of law.\n\nIn this view of the matter, we propose to deal with all these appeals by one common judgment.\n\nThe assessee in Civil Appeals Nos. 572-574 of 1972 filed his sales-tax returns before the Sales Tax Officer who on an examination C of the accounts found that the returns submitted py the a; sessee were both incorrect and incomplete inasmuch as certain entries in the books of account of Haji P. K. Usmankutty revealed certain transactions which were not accounted for in the assessces books of account.\n\nThe Sales Tax Officer, after hearing the ossessee, made an assessment to the best of his judgment under s. 17(3) of the Act read with r. 15 made under the Act.\n\nThe Sales Tax Officer thus rejected the D accounts of the assessee as they did not reflect the goods said to have been purchased by Haji P. K. Usmankutty. The assessee sought an opportunity to cross-examine Haji Usmankutty with respect to the correctness of his accounts which were relied upon by the Sales Tax Oflker, but this opportunity was refused to him by the Sa)es Tax Ofticer as also the other appellate authorities.\n\nSimilarly in the case of the respondent Nallakandy Yusuf!, in Civil Appeal No. 575 of 1972, E the return filed by the assessee was rejected by the Sales Tax Officer on the ground that certain transactions shown in the accounts of 41 some wholesale dealers were not reflected in his books of account and i the opportunity asked for by the assessee for cross-examining the said wholesale dealers was refused to him.\n\nThe order of the Sales Tax Officer was confirmed by the Appellate Authorities under the Act.\n\nBoth the assessees then filed a revision application before the Hib F Court which allowed the application of the asscssees, quashed the orders of the Sales Tax Authorities and remanded ti.e cases to the Sales Tax Officer for giving an opportunity to the respondents for cross-examining the wholesale dealers concerned and then making assessments in accordance with the law.\n\nThe State having obtained special leave from this Court-hence these appeals before us.\n\nG The short question that fell for determination before the High Court was, whether under the provisions of the Act the opportunity of being heard which was to be given to the assessees, would include within its sweep the right of cross-examination of a third party whose accounts were the basis of the best judgment assessments made by the Sales Tax Officer and the examination of which later on showed that the returns filed by the assessees were incorrect and incomplete.\n\nH The High Court, on a coi:isideration of s. 17 ( 3) and the Rules made under the Act came to the conclusion that the assessees were entitled to a fair hearing and the opportunity of being heard could not be said to be complete unless in the circumstances of these cases the as-\n\nKERALA v. K. T. SHADULI YUSUFF (Fazal Ali,!.) 241\n\nsessees were allowed to cross-examine Haji P. K. Usmankutty and other wholesale dealers on whose accounts reliance was placed by the Sales Tax Authorities.\n\nA provision of law authorising the Taxing Authorities to. make. a best judgment assessment in default of the assssee .complymg with the le•al requirements is not a new one, but existed m s. 23 ( 4) of the !;, come-tax Act, 1922 as amended by the Indian Income-tax (Amendment) Act, 1939, the relevant part of which runs thus:\n\nIf any person fails to make the return required by any notice given under sub-section (2) of sectin 22 and has not made a return or a revised return under ;; uh-section\n\n(3) ot the same section or fails to comply with aU the terms of a notice issued under sub-section ( 4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of this sec- '.ion, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable bv the asscssee on the basis of such Qssessn1ent and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered :\n\nProvided x x x x\"\n\nDescribing the nature and character of a best iudgment assessment, Lord RusseU of Killowen in delivering the judgment of. the Privy Council in Income-tax Commissioner v.\n\nBadridas Ramrai Shop, A kola,(') observed as follows:\n\n\"The Officer is to make an assessment to the best of hiJ; judgment aganst a person who is in default as regards supplying informatiQn.\n\nHe must not act dishonestly or vindictively or capriciously, because he must exercise judgment in the matter.\n\nHe must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose h.e must, their Lordships think,\n\nb~ able to take into consideration local knowledge of previous returns by and assessments of the a&'l; essee, and all other matters which he thinks will assist him in arriving at a fair and proper es<imate; and though there must necessarily be guess-work in the matter, it must be honest guesswork.\"\n\nThese observations were quoted with approval by this Court in Raghbar Mand al Harihar Manda/ v. State of Bihar(2).\n\nMr. Gupte learned counsel for the appellant submitted that he main object of the best judgment assessment was to penalise the H\n\n(1) (1937) 64 IA. 102, 114-115.\n\n(2) 8 S.T.C.7i0.\n\nassessee for either not filing a return or for filing a return which was defective and if at this stage he is given a full-fledged hearing inclnding the right to summon and cross-examine witnesses, then this would amount to condoning the default committed by the assessee. lt'was also argued that as the Income-tax authorities are not bound by the technical rules of evidence, the assessee cannot claim cross-examination of witnesses as a matter of right.\n\nIn support of his submission he relied upon a decision of this Court in Dhakeswari Cotton Mills Ltd\n\nv. Commissioner of Income Tax, West Bengal('), where agreeing with a similar argument put forward by the Solicitor-General in that\n\ncase this Court observed thus :\n\n\"As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered bv technical rules of evidence and pleadings, and that he is cl1titled to act on material which may not be accepted as evidence , in a Court of law, bl!t there the agreement ends, because it is equally clear that in JTiaking the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all.\n\nThere must be something more than bare suspicion to support the assessment under section 23 ( 3).\"\n\nThere can be uo doubt that the principle that as the tax proceedings are of quasi-judicial nature, the Sales Tax authorities are not strictly bound by the rules of evidence which means that what the authorities have to consider is merely the probative value of the materials produced before them.\n\nThis is quite different from saying that even the rules of natural justice do not apply to such proceedings so as to deny the right of cross-examination to the assessee where the circumstances clearly justify such a course and form one of the integral parts of the materials on the basis of which the order by the Taxing Authorities can be passed.\n\nThe admissibility of a document or a material in evidence is quite different from the value which the authoriiy would attach to such material.\n\nThe Privy Council has held that the Taxing Authorities can even base their conclusion on their private opinion or assessment provided the same is fully disclosed to the assessee and he\n\nis given an opportunity to rebut the same.\n\nIn these circumstances, therefore, we do not agree with Mr. Gupte that merely because the technical rules of evidence do not strictly apply, the right of cross-· examination cannot be demanded by the assessee in a proper case governed by a particular statute.\n\nThis Court further fully approved of the four propositions laid down by the Lahore High Court in Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab( 2 ). This Court was of the opinion that the Taxing Authorities bad violated certain fundamental rules of\n\n(I) [1955] l S.C.R. 941.\n\n(2) (1944) 12 I.T.R. 393.\n\nKER,\\LA v. K. T. SHADULI YUSUFF (Fazal Ali, J.) 243\n\nnatural justice in that they did not disclose to the assessee the information supplied to it by the departmental representatives.\n\nThis case was relied upon by this Court in a later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd.\"s case (supra), and while\n\nfurther endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :\n\n\"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he considers to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate;\n\n(3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) . in case he proposes to use against the asessee the result of any private inquiries niade by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him amp!~ opportunity to meet it, if possible.\"\n\nIt will .thus be noticed that this Court clearly laid down that while the Income-taic Officer was not debarred from relying on any material against the assessee, justice and fair-play demanded that the sources of information relied upon by the Income-tax Officer must be disclosed to the assessee so that he is in a position to rebut the same and an opportunity should be given to the assessee to meet the effect of the aforesaj_d information.\n\nWe, however, find that so far as the present appeals are concerned, they are governed by the provisions of the Kerala General Sales Tax Act, the provisions of which are not quite identical with the provisions of the Income-tax Act and the Kerala Act appears to have fully incorporated all the essential principles of natural justice in s. 17 (3) of the Act. In these circumstances, therefore, the answer to the question posed in these appeals would have to turn up.on the scope, inter· pretation and content of s. 17 (3) of the Act, the proviso thereto and r. 15 framed under the Act. It is true that the words \"opportunity\n\nof being heard\" are of very wide amplitude but in the context the sales-tax proceedings which are qua'si-judicial proceedings all that the Court has to see is whether the assessee has been given a fair hearing.\n\nWhether the hearing would extend to the right of demanding cross-examination of witnesses or not would naturally depend upon the nature of the materials relied upon by the sales-tax\n\nauthorities, the manner in which the assessce can rebut those malerials and the facts and circQmstances of each case.\n\nIt is difficult to lay down any hard and fast rule of universal application. We would, therefore, first try to interpret the ambit of s. 1 7 (3) and the proviso thereof in order to find out whether a right of cross-examination of witnesses whose accounts formed the basis of best judgment assessment is conferred on the assessee either expressly or by necessary intendmcnt.\n\nSection 17 ( 3) of the Act runs thus :\n\n\"If no return is submitted by the dealer under sub-section ( 1) within the prescribed period, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as it mzy consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :\n\nProvided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return.\"\n\nAn analysis of this provsion would 'show that this sub-section contemplates two contingencies-(!) where the assessee does not file his return at all; and (2) where the assessee files his return which, however, is found to be incorrect or incomplete by the assessing authority.\n\nThe sub-section further enjoins on the assessing authority a duty to consider the necessary materials and make an enquiry before coming to its conclusion.\n\nThe proviso expressly requires the assessing authority to give to the assessee a reasonable opportunity of being heard even if the assessee had committed default in not filing the return. Since the statute itself contemplates that the assessee\n\nshould be given a reasonable opportunity of being heard, we arc not in a position to agree with the contention of the learned counsel for the appellant that if such an opportunity is given, it will amount to condonation of default of the assessee.\n\nThe tax proceedings are no doubt quasi-judicial proceedings and the Sales-tax authorities arc not bound strictly by the rules of evidence, nevertheless the authorities must base their order on materials which are known to the assessee and after he is given a chance to rebut the same.\n\nThis principle of natural justice which has been reiterated by this Court in the' decisions cited above has been clearly incorporated ins. 17(3) of the Act as mentioned above.\n\nThe statute does not stop here, but the second part of the proviso confers express benefit on the a'ssessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of such return.\n\nIn view of this pro; ision it can hardly be argued with any show of force that if the assessee desires the wholesale dealers whose accounts are used against him to be cross-examined in order to prove that his return is not incorrect or incomplete he should not be conceded this opportunity.\n\nApart from anything else, the second part of the proviso itself confers this specific right on the assessee. It is difficult to conceive as to how the\n\nKERALA v. K. T. SHADULI YUSUFF (Fazal Ali, l.) 245\n\nassessees would be able to disprove the correctness of the accouns of Haji P. K. Usmankutty or the other wholesale dealers, unless.he. is given a chance to cros~-examine them with resp.eel to te cred1b1hty\n\n, of the accounts maintamed by them.\n\nIt ts qmte possible .that te wholesale dealers may have mentioned certain transacttons m heir books of account either to embarrass the assessees or due to ammus ' or business rivalry or such other reasons which can only be established\n\n'. B when the persons who are responsible ior keeping the accounts are\n\nbrought before the authorities and allowed to be cross-examined by the assessees.\n\nThis does not mean that the assessing anthority is bound to examine the wholesale dealers as witnesses in presence of the assessees : it is sufficient if such wholesale dealers are merely tendered by the safos-tax authorities for cross-examination by the assessees for whatever worth it is.\n\nIn view of the express provision of the second par\\ of the proviso, we are fully satisfied that the respondents had the undoubted right to cross-examine the wholesale dealers on the basis of whose accounts the returns of the assessees were held to be incorrect and incomplete.\n\nWe are fortified in our view by a decision of this Court in C. Vasantilal and Co. v. Commissioner of Income-tax, Bombay City('), where this Court observed as follows :\n\n\"The Income-tax Officer is not bound bv anv technical rules of tl!e law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry.\n\nBut if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it.\" E\n\nIt will be noticed that if the Sales-tax authorities refused the prayer of the assessees to cross-examine the wholesale dealers, then such a refusal would not amount to an adequate opportunity of explainino the material collected by the assessing authority.\n\nMr. Gupte learned counsel for the appellant relied on a decision of the Gujarat High Court in Jayantilal Thakordas v. State of Gujarat('). In the first place the Gujarat High Court in that case was concerned wit~ the. Bombay Sales. Tax Act which did not contain any express provtston hke the one which is to be found in the second part of the proviso to s. 17(3) of the Kerala General Sales Tax Act and therefore, any decision given by the Gujarat High Court would hav~ no application to the facts of the present appeals.\n\nIn Jayantilnl Thakorda_s's case (supra) the Court was merely called upon to interpret the import of the words \"reasonable opportunity of being heard\" and the Judges held that as ample opportunity was given to the assessee concerned to show cause why the sales said to have been suppressed\n\n(1) (1962) 45 I.T.R. 206, 209.\n\n(2) 23 S.T.C. 11.\n\n(3) 14 S.T.C. 489.\n\nby him should not be included in his turnover, the rules of natural justice were duly complied with.\n\nThe Court further pointed out that the sales-tax authorities were not strictly bound by the rules of evidenctl nor did the Act require the assessing authorities to do more tha11 what they had done in that case.\n\nThe Gujarat High Court seems. to have dissented from the view taken by a single Judge of the Kerala High Court in M. Appukutty v. State of Kerala( 3). Finally, it does not appear from the facts mentioned in the judgment of the Gujarat High Court that the assessee had at any time made a specific prayr:r for cross-examining the representatives of the firm of M/s A. Alibhai & Co.\n\nIn these circumstances, therefore, Jayantilal Thakordas's case (supra) does not appear to be of any assistance to the appellant.\n\nWe might, however, state that we are not prepared to go to the extent to which the Gujarat High Court has gone even in interpreting the content and ambit of an opportunity given to the assessee of being: heard so as to completely exclude the right of cross-examination. We have already held that whether the reasonable opportunity would extend to such a right would depend upon the facts and circumstances. of each case.\n\nWe feel that the correct law on the subject has been laid down by a Division Bench of the Orissa High Court in Muralimohan Prabhudayal'\n\nv. State of Orissa(') where the High Court, while adumbrating thG 4th proposition, namely, as to how the assessee was to rebut the material used by the Department against him, observed as follows :\n\n\"It is the amplitude and ambit of this fourth proposition which needs examination.\n\nThere cannot be any controversy that the assessee can adduce independent evidence of his own to disprove the particulars proposed to be used against him. . . . . . . .\n\nA third party's accounts are proposed to be used against the assessee and if such accounts are relied on, the assessee's accounts are to be discarded. . . . . . . . . .\n\nIf the assessee gets an opportunity by cross-examination, he can establish that the accounts of the third party are wrong and manipulated to suit the interest of the third party, or that they were intended to be adversely used agamst the assessee with whom the third party had inimical relation-· ship.\n\nIt is difficult to accept the contention in such a case that the ample and reasonable opportunity to be given to the assessee would not include within its sweep the right of cross-examination.\"\n\nThe High Court in the present appeals has relied on its earlier decision in Appukutty v. State of Kerala (supra) where a sing!e Judge of he Kerala High Court pointed out that the fact. that a. th1!d arty mamtaining some secret accounts had _made crta1!1 nt~1e~ m his accounts which may connect the assesee will. not give 1unsd1ctton to the assessing authority to use that mformat1on unless the assessee has been•\n\n(!) 26 S.T.C. 22.\n\nKERALA v. K. T. SHADULI YUSUFF (Fazal Ali, J.) 247\n\ngiven an ?Pportunity to crosscexamine J1im effectively.\n\nAs no such opportumty was given, the Court held that the proceedings stood vitiated.\n\nIn our opinion, the decision of the Kerala High Court was substantially correct and in consonance with the language of s. 17 (3) and the proviso thereto.\n\nOther cases have also been cited before us which, however are based on the peculiar language of the statutes which the Cour<s 'were construing and which are diherent from the language used in the Act.\n\nFinally, apart from the provisions of s. 17 (3) and the proviso thereto, the rules further reiterate what the proviso contemplates. Rule 15 which deals with provisional assessment where a re, urn is incorrect and incomplete runs thus :\n\n\"If the return submitted by the dealer appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, afcer issuing a notice to the dealer calling upon him to produce his accounts to prove the correctness or completeness of his return at time and place to be specified in the notice and after scrutiny of all the accounts if any, produced by the dealer and after taking into account all relevant materials gathered by it determine the turnover of the dealer to the best of its judgment, and fix provisionally the annual tax or taxes payable at the rate or rates speci!Jed in Section or notified under Section 10.\n\nBefore determining the turnover under this rule, the dealer shall be given a reasonable opportunity of being beard and also to prove the correctness or completeness of the return submitted by him.\"\n\nThe Rule clearly shows that where the r_eturn of the assessee is incorrect or incomplete he must be called upon to prove the corrcctnss\n\nor completeness of the same.\n\nIt also enj0:ins that a reasonable opportunity of being he.ard should be given to the assessee to prove the correctness or completeness of the return submitted by him.\n\nThus F .the requirement of the second part of the proviso to s. 17 (3) is reiterated in r. 15.\n\nWe understand that such a provision in the Act is peculiar to the Kerala Act and is not to be found in other sales-tax statutes which provide for best judgment assessment.\n\nThus on a true interpretation of s. 17(3), the proviso thereto and r. 15, the inescapable conclusion would be that the assessee has been given a statutory right to prove the correctness of his return by showing that G the materials on the basis of which his return is found to be incorrect or incomplete are wrong and if for this purpose the assessee makes an express prayer for cross-e.xamining the wholesale dealers whose accounts formed the sheet-anchor of the notice issued to the assessee, he is undoubtedly entitled to cross-examine such wholesale dealers.\n\nIn view of the language in which the Rules are cbuched it seems to us that a determinative issue arises in this case-the Depart- H ment taking the stand that the returns filed by the assessees ar.e incorrect and incomplete, whereas the assessees contend that their\n\n17-240SCI/77\n\nA returns are correct and that the accounts of the wholesale dealers which formed the basis of the information of the Sales-tax Authorities were wrong and incorrect. Such an issue can only be determined after examination of the accounts of both the parties and after affording the assessees the right to cross-examine the wholesale dealers concerned, particularly when the assessee makes a specific prayer to 'this effect.\n\nB For these reasons, therefore, we are convinced. that the judgment passed by the High Court in all these appeals is correct in law and the High Court has righJy decided the issues involved.\n\nThe appeals accordingly fail and are dismissed with no order as to costs.\n\nP.B.R.\n\nAppeals dismissed.", "total_entities": 84, "entities": [{"text": "STATE OF KERALA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA", "offset_not_found": false}}, {"text": "A\n\nK. T. SHADULI YUSUFF ETC", "label": "RESPONDENT", "start_char": 16, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "K. T. SHADULI YUSUFF ETC", "offset_not_found": false}}, {"text": "March 15, 1977", "label": "DATE", "start_char": 46, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "March 15, 1977\n\n[P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.,]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 63, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "P. N. BHAGWATI", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 79, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "R. S.\n\nSarkaria", "offset_not_found": false}}, {"text": "General Safes Tax Act, 1963", "label": "STATUTE", "start_char": 135, "end_char": 162, "source": "regex", "metadata": {}}, {"text": "S. 17(3)", "label": "PROVISION", "start_char": 163, "end_char": 171, "source": "regex", "metadata": {"linked_statute_text": "General Safes Tax Act, 1963", "statute": "General Safes Tax Act, 1963"}}, {"text": "Section 17(3)", "label": "PROVISION", "start_char": 518, "end_char": 531, "source": "regex", "metadata": {"linked_statute_text": "General Safes Tax Act, 1963", "statute": "General Safes Tax Act, 1963"}}, {"text": "Kerala General Sales Tax Act 1963", "label": "STATUTE", "start_char": 539, "end_char": 572, "source": "regex", "metadata": {}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 1274, "end_char": 1282, "source": "regex", "metadata": {"linked_statute_text": "the Kerala General Sales Tax Act 1963", "statute": "the Kerala General Sales Tax Act 1963"}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 1533, "end_char": 1541, "source": "ner", "metadata": {"in_sentence": "Dismissing the State's appeal,\n\n(Per Bhagwati and Sarkaria, JJ}\n\nHELD .", "canonical_name": "Bhagwati"}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 1546, "end_char": 1554, "source": "ner", "metadata": {"in_sentence": "Dismissing the State's appeal,\n\n(Per Bhagwati and Sarkaria, JJ}\n\nHELD ."}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 1666, "end_char": 1674, "source": "regex", "metadata": {"statute": null}}, {"text": "s0", "label": "PROVISION", "start_char": 2739, "end_char": 2741, "source": "regex", "metadata": {"statute": null}}, {"text": "Appukutry", "label": "PETITIONER", "start_char": 4239, "end_char": 4248, "source": "ner", "metadata": {"in_sentence": "Appukutry\n\nv. Stt:t_e of Kera/a~ 14 S.T.C. 489 approved,\n\nFazal Ali, J. (concurring)."}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 4297, "end_char": 4306, "source": "ner", "metadata": {"in_sentence": "Appukutry\n\nv. Stt:t_e of Kera/a~ 14 S.T.C. 489 approved,\n\nFazal Ali, J. (concurring).", "canonical_name": "Fazal Ali"}}, {"text": "Section 17(3)", "label": "PROVISION", "start_char": 4326, "end_char": 4339, "source": "regex", "metadata": {"statute": null}}, {"text": "[1955] 1 S.C.R. 941", "label": "CASE_CITATION", "start_char": 5886, "end_char": 5905, "source": "regex", "metadata": {}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 7272, "end_char": 7280, "source": "regex", "metadata": {"statute": null}}, {"text": "S. V. Gupte", "label": "OTHER_PERSON", "start_char": 8208, "end_char": 8219, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte (In CA No."}}, {"text": "K. M", "label": "LAWYER", "start_char": 8240, "end_char": 8244, "source": "ner", "metadata": {"in_sentence": "572/72), K. M, K. Nair and A. C.\n\nPudissery for the appellant in all the appeals."}}, {"text": "K. Nair", "label": "LAWYER", "start_char": 8246, "end_char": 8253, "source": "ner", "metadata": {"in_sentence": "572/72), K. M, K. Nair and A. C.\n\nPudissery for the appellant in all the appeals."}}, {"text": "A. C.", "label": "LAWYER", "start_char": 8258, "end_char": 8263, "source": "ner", "metadata": {"in_sentence": "572/72), K. M, K. Nair and A. C.\n\nPudissery for the appellant in all the appeals."}}, {"text": "T. A. RamachRndran", "label": "LAWYER", "start_char": 8314, "end_char": 8332, "source": "ner", "metadata": {"in_sentence": "T. A. RamachRndran, for the respondents in all the appeals."}}, {"text": "P. N. Bhagwati", "label": "JUDGE", "start_char": 8391, "end_char": 8405, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. N. Bhagwati and R. S.\n\nSarkaria, JJ.", "canonical_name": "P. N. BHAGWATI"}}, {"text": "R. S.\n\nSarkaria", "label": "JUDGE", "start_char": 8410, "end_char": 8425, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. N. Bhagwati and R. S.\n\nSarkaria, JJ.", "canonical_name": "R. S.\n\nSarkaria"}}, {"text": "S. Murtaza Fazal Ali", "label": "JUDGE", "start_char": 8462, "end_char": 8482, "source": "ner", "metadata": {"in_sentence": "was delivered by Bhagwati, J., S. Murtaza Fazal Ali, J. gave a separate opinion.", "canonical_name": "S. MURTAZA FAZAL ALI*"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 8513, "end_char": 8521, "source": "ner", "metadata": {"in_sentence": "BHAGWATI, , J.\n\nThe facts giving ri'se to these appeals are set out in the judgment about to be delivered by our learned brother S.\n\nMurtaza Fazal Ali and we do not think it necessary to reiterate them.", "canonical_name": "Bhagwati"}}, {"text": "S.\n\nMurtaza Fazal Ali", "label": "JUDGE", "start_char": 8642, "end_char": 8663, "source": "ner", "metadata": {"in_sentence": "BHAGWATI, , J.\n\nThe facts giving ri'se to these appeals are set out in the judgment about to be delivered by our learned brother S.\n\nMurtaza Fazal Ali and we do not think it necessary to reiterate them."}}, {"text": "Haji P. K. Usmankutty", "label": "RESPONDENT", "start_char": 9220, "end_char": 9241, "source": "ner", "metadata": {"in_sentence": "In the assessments of the assessee to sales tax for three assessment years the returns filed by him on the basis of his books of account appeared to the Sales Tax Officer to be incorrect and incomplete since certain sales appearing in the books of account of one Haji P. K. Usmankutty as having been effected by the assessee in his favour were not accounted for in the books of account maintained by the assessee.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Haji Usmankutty", "label": "RESPONDENT", "start_char": 9467, "end_char": 9482, "source": "ner", "metadata": {"in_sentence": "The assessee applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutty in regard to the correctness of his accounts, but this opportuntry wa:~ denied to him and the Sales Tax Officer proceeded to make a best jud!lffient assessment under section 17, sub-section (3) of the Kerala _General Sales Tax, 1963.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "section 17", "label": "PROVISION", "start_char": 9649, "end_char": 9659, "source": "regex", "metadata": {"statute": null}}, {"text": "Haji Usmankl1tty", "label": "RESPONDENT", "start_char": 10514, "end_char": 10530, "source": "ner", "metadata": {"in_sentence": "575 of 1972 are almost identical, save that instead of Haji Usmankl1tty, certain wholesale dealers were sought to be cross-examined in that case and the opportunity to cross-examine them was denied by the Sales Tax authorities.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Tucker", "label": "JUDGE", "start_char": 12032, "end_char": 12038, "source": "ner", "metadata": {"in_sentence": "the rules of natural justice are not embodied rules\" and in the same case this Court approved the following observations from the judgment of Tucker, L. J. in Ru; sel v.\n\nDuke of Norfolk and Ors. ("}}, {"text": "Section 17", "label": "PROVISION", "start_char": 14958, "end_char": 14968, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 16531, "end_char": 16541, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 17558, "end_char": 17567, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 17799, "end_char": 17809, "source": "regex", "metadata": {"statute": null}}, {"text": "Haji Usmankutty", "label": "RESPONDENT", "start_char": 18481, "end_char": 18496, "source": "ner", "metadata": {"in_sentence": "The question debated before us was whether this opportunity of being heard granted under the first part of the proviso included an opportuuity to cross-examine Haji Usmankutty and other wholesale dealer's on the basis of whose books of accounts the Sales Tax Officer disbelieved the account of the assessee and came to the finding that the return submitted by the as'sessee were incorrect and incomplete.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Hazi Usmankutty", "label": "RESPONDENT", "start_char": 20377, "end_char": 20392, "source": "ner", "metadata": {"in_sentence": "Here, in the present •Case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the books of account of the assessee.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Hazi Usmaukutty", "label": "RESPONDENT", "start_char": 21175, "end_char": 21190, "source": "ner", "metadata": {"in_sentence": "Placed in these circumstances, the a'ssessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis of such entries, and this obviously, the assessee could not do, unless he was given an opportunity of cros's-examining Hazi Usmaukutty and other wholesale dealers with reference to their accounts.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Hazi\n\nUsmankutty", "label": "RESPONDENT", "start_char": 21314, "end_char": 21330, "source": "ner", "metadata": {"in_sentence": "Since the evidentiary material procured from or produced by Hazi\n\nUsmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Hazi Usmankutty", "label": "RESPONDENT", "start_char": 21506, "end_char": 21521, "source": "ner", "metadata": {"in_sentence": "Since the evidentiary material procured from or produced by Hazi\n\nUsmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Orissa Htgh Court", "label": "COURT", "start_char": 22492, "end_char": 22509, "source": "ner", "metadata": {"in_sentence": "Y1e are f the opinion that the view taken by the Orissa Htgh Court m Muralimohan Prabhudayal v. State of Orissa(I) and\n\nthe Kerala High Court in M. Appukulty v. State of Kerala(2) and the present cases represents the correct Jaw on the subject."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 22567, "end_char": 22584, "source": "ner", "metadata": {"in_sentence": "Y1e are f the opinion that the view taken by the Orissa Htgh Court m Muralimohan Prabhudayal v. State of Orissa(I) and\n\nthe Kerala High Court in M. Appukulty v. State of Kerala(2) and the present cases represents the correct Jaw on the subject."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 22792, "end_char": 22800, "source": "ner", "metadata": {"in_sentence": "FAZAL Au, J.-These appeals by special leave involve an interesting question of law as to the interpretation of s. 1 7 ( 3) of the Kerala Genera\\ Sales Tax, 1963-hereinafter referred to as 'the Act'-and the proviso thereof read with r. 15 framed under the Act.", "canonical_name": "Fazal Ali"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 22903, "end_char": 22907, "source": "regex", "metadata": {"statute": null}}, {"text": "K. T. Shaduli", "label": "RESPONDENT", "start_char": 23149, "end_char": 23162, "source": "ner", "metadata": {"in_sentence": "The assessment years in question are 1965-66, 1966-67 and 1967-68 in the case of the respondent K. T. Shaduli in Civil Appeals Nos."}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 23941, "end_char": 23949, "source": "regex", "metadata": {"statute": null}}, {"text": "Nallakandy Yusuf", "label": "RESPONDENT", "start_char": 24464, "end_char": 24480, "source": "ner", "metadata": {"in_sentence": "Similarly in the case of the respondent Nallakandy Yusuf!,"}}, {"text": "Hib F Court", "label": "COURT", "start_char": 24997, "end_char": 25008, "source": "ner", "metadata": {"in_sentence": "Both the assessees then filed a revision application before the Hib F Court which allowed the application of the asscssees, quashed the orders of the Sales Tax Authorities and remanded ti.e cases to the Sales Tax Officer for giving an opportunity to the respondents for cross-examining the wholesale dealers concerned and then making assessments in accordance with the law."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 25914, "end_char": 25919, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 26547, "end_char": 26552, "source": "regex", "metadata": {"statute": null}}, {"text": "RusseU of Killowen", "label": "LAWYER", "start_char": 27464, "end_char": 27482, "source": "ner", "metadata": {"in_sentence": "come-tax Act, 1922 as amended by the Indian Income-tax (Amendment) Act, 1939, the relevant part of which runs thus:\n\nIf any person fails to make the return required by any notice given under sub-section (2) of sectin 22 and has not made a return or a revised return under ;; uh-section\n\n(3) ot the same section or fails to comply with aU the terms of a notice issued under sub-section ( 4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of this sec- '.ion, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable bv the asscssee on the basis of such Qssessn1ent and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered :\n\nProvided x x x x\"\n\nDescribing the nature and character of a best iudgment assessment, Lord RusseU of Killowen in delivering the judgment of."}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 28438, "end_char": 28443, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte learned counsel for the appellant submitted that he main object of the best judgment assessment was to penalise the H\n\n(1) (1937) 64 IA."}}, {"text": "cl1", "label": "PROVISION", "start_char": 29552, "end_char": 29555, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 29756, "end_char": 29766, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 30002, "end_char": 30012, "source": "regex", "metadata": {"statute": null}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 31379, "end_char": 31396, "source": "ner", "metadata": {"in_sentence": "This Court further fully approved of the four propositions laid down by the Lahore High Court in Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab( 2 )."}}, {"text": "Raghubar Mandal Har.ihar Mandal", "label": "OTHER_PERSON", "start_char": 31864, "end_char": 31895, "source": "ner", "metadata": {"in_sentence": "This case was relied upon by this Court in a later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd.\"s case (supra), and while\n\nfurther endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :\n\n\"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he considers to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate;\n\n(3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) ."}}, {"text": "Dhakeswari Cotton Mills Ltd.", "label": "ORG", "start_char": 31961, "end_char": 31989, "source": "ner", "metadata": {"in_sentence": "This case was relied upon by this Court in a later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd.\"s case (supra), and while\n\nfurther endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :\n\n\"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he considers to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate;\n\n(3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) ."}}, {"text": "Seth Gurmukh Singh", "label": "OTHER_PERSON", "start_char": 32076, "end_char": 32094, "source": "ner", "metadata": {"in_sentence": "This case was relied upon by this Court in a later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd.\"s case (supra), and while\n\nfurther endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :\n\n\"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he considers to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate;\n\n(3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) ."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 32197, "end_char": 32202, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 32210, "end_char": 32224, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 43", "label": "PROVISION", "start_char": 32350, "end_char": 32360, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 32368, "end_char": 32382, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 33901, "end_char": 33915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 17", "label": "PROVISION", "start_char": 34021, "end_char": 34026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 34196, "end_char": 34201, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 34958, "end_char": 34962, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 35199, "end_char": 35209, "source": "regex", "metadata": {"statute": null}}, {"text": "Haji P. K. Usmankutty", "label": "RESPONDENT", "start_char": 38048, "end_char": 38069, "source": "ner", "metadata": {"in_sentence": "It is difficult to conceive as to how the\n\nKERALA v. K. T. SHADULI YUSUFF (Fazal Ali, l.) 245\n\nassessees would be able to disprove the correctness of the accouns of Haji P. K. Usmankutty or the other wholesale dealers, unless.he.", "canonical_name": "Haji P. K. Usmankutty"}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 40021, "end_char": 40039, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte learned counsel for the appellant relied on a decision of the Gujarat High Court in Jayantilal Thakordas v. State of Gujarat(')."}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 40303, "end_char": 40311, "source": "regex", "metadata": {"statute": null}}, {"text": "Jayantilnl Thakorda_s", "label": "OTHER_PERSON", "start_char": 40475, "end_char": 40496, "source": "ner", "metadata": {"in_sentence": "In Jayantilnl Thakorda_s's case (supra) the Court was merely called upon to interpret the import of the words \"reasonable opportunity of being heard\" and the Judges held that as ample opportunity was given to the assessee concerned to show cause why the sales said to have been suppressed\n\n(1) (1962) 45 I.T.R. 206, 209.", "canonical_name": "Jayantilnl Thakorda_s"}}, {"text": "A. Alibhai", "label": "OTHER_PERSON", "start_char": 41510, "end_char": 41520, "source": "ner", "metadata": {"in_sentence": "Finally, it does not appear from the facts mentioned in the judgment of the Gujarat High Court that the assessee had at any time made a specific prayr:r for cross-examining the representatives of the firm of M/s A. Alibhai & Co.\n\nIn these circumstances, therefore, Jayantilal Thakordas's case (supra) does not appear to be of any assistance to the appellant."}}, {"text": "Jayantilal Thakordas", "label": "OTHER_PERSON", "start_char": 41563, "end_char": 41583, "source": "ner", "metadata": {"in_sentence": "Finally, it does not appear from the facts mentioned in the judgment of the Gujarat High Court that the assessee had at any time made a specific prayr:r for cross-examining the representatives of the firm of M/s A. Alibhai & Co.\n\nIn these circumstances, therefore, Jayantilal Thakordas's case (supra) does not appear to be of any assistance to the appellant.", "canonical_name": "Jayantilnl Thakorda_s"}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 42170, "end_char": 42187, "source": "ner", "metadata": {"in_sentence": "We feel that the correct law on the subject has been laid down by a Division Bench of the Orissa High Court in Muralimohan Prabhudayal'\n\nv. State of Orissa(') where the High Court, while adumbrating thG 4th proposition, namely, as to how the assessee was to rebut the material used by the Department against him, observed as follows :\n\n\"It is the amplitude and ambit of this fourth proposition which needs examination."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 44085, "end_char": 44090, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 44361, "end_char": 44366, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 45195, "end_char": 45205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 45804, "end_char": 45809, "source": "regex", "metadata": {"statute": null}}, {"text": "understand that such a provision in the Act is peculiar to the Kerala Act", "label": "STATUTE", "start_char": 45842, "end_char": 45915, "source": "regex", "metadata": {}}, {"text": "s. 17(3)", "label": "PROVISION", "start_char": 46045, "end_char": 46053, "source": "regex", "metadata": {"linked_statute_text": "We understand that such a provision in the Act is peculiar to the Kerala Act", "statute": "We understand that such a provision in the Act is peculiar to the Kerala Act"}}]}
{"document_id": "1977_3_249_260_EN", "year": 1977, "text": "RADHAKRISHNA AGARWAL & ORS.\n\nSTAIB OF BIHAR & ORS.\n\nMarch 17, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nConstitution of India, 1950- Article 226 cannot be invoked for alleged breaches of contract-Remedy lies through ordinary civil .uit for da1nages.\n\nConstitution of India, 1950-Article 14-Discrimination should be alleged at the stage of entry into the contractual area to attract the application of Art. 14.\n\nConstitution of India, 1950-Articles 298 and 299-Scope of-Whether the State has any special obligations and privileges attached to it even when it acts within the contractual field.\n\nPlea for adjournment of the hearing of the case until after the emergency is lifted-Stay orders presumably obtained earlier on representation n1ade that no aspect of enforcen1ent of Art. 14 of the Constitution was involved-Propriety of\n\nthe continuance of stay.\n\nA contract called a \"lease:'' to collect and exploit sal-seeds from forest area was entered into in 1970, between the respondent State and the appellants in\n\n1970. Clause (3) in the written contract executed in accordance with the provisions of Art. 299 of the Constitution provided for the revision of the rate of royalty at the expiry of every three years in consultation with the lessee and was to be binding on the lessee. Under clause ( 4) of the lease, the lessee had to' establish a factory within the State of Bihar for processing of sal-seeds and extraction of oil therefrom within a period of five years from the date of the E agreement, failing which the agreement itself was to terminate. In 1974, the respondent State revised the rate of royalty payable by the appellants. and after that, canceUed the lease by a letter dated 15th March 1975. The \\Vrit petitions challenging the said orders were dismissed by the Patna High Court. On appeals by certificates, the appellants contended : (i) the State acting in its executive capacity through its Government or its officers even in the contractual field. cannot escape the obligation imposed upon it by Part III of the Constitution; (ii) Article 14 of the Constitution has been infringed and (iii) Principles. of natural F justice have been violated as no opportunity ta show cause against the cancellation of lease was given.\n\nDismissing the appeals the Court,\n\nHELD : ( 1) Article 14 of the Constitution imports a limitation or imposes an obligation upon the State's executive power unde-r Art. 298 of the Consti~ tution. The rule of law which regulates. the operation are organs of Government functioning under the Constitution is that all constitutional powers carry G corresponding obligations with them. [254 &F]\n\nErusian Equipment & Chemicals Ltd. v. State of West Bengal and Anr. 1975(2) SCR 674 at 677, referred to.\n\n(2) The State acts purely in its executive capacity and is bound by the obligations which dealings of_ the State with the. individual citizens import into every trans.action entered into in exercise of its constitutional powers, only at H the time of entry into the field of consideration of persons with whom the Govemmenl could contract at all. But, after the State or its agents have\n\nentred into the field of ordinary contract the relations are no longer gOverned by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. [255 C-D]\n\n·· iso\n\nSUPREME COL'RT REPORTS\n\n[1977] 3 S.C.R.\n\n(3) Article 14 or of any _othel'. constitutional. provision is not violated when the State or fas agents purporting to act within the contractual field perform any act.\n\nIn this sphere they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract. In the instant case, the contracts do not contain any statutory terms or obligations and no statutory power or obligation which could attract the application of Art. 14 of the Constitution is involved. [255 D-E, 260 E-F]\n\n(4) The doctrine of discrimination cannot be availed of against the State's action purporting to be taken solely within the contractual field when no aspect cf any statutory or constitutional obligation appears either from incontrovertible facts or of facts.\n\nThe appellants', cases do not raise any question of discrimi~ nation alleged at the stage of entry into the contractual area which could attract the application of Article 14. [258 FG, 259 Al\n\nC. K. Achuthan v. Star. of Kera/a and Ors. 1959 Supp. (I) SCR 787. applied.\n\nErusian E.quipment &: Chemicals v. State of West Bengal &:. Anr. (1975) 2 SCR 674. distinguished.:\n\n(5) Before any adjudication on the question; whether Article 14 of the Constitution could possibly be held to have been violated as between persons governed by similar contracts, they must be properly put in issue and_ established'.\n\nThe question whether Article 14 could at all be held to operate within the contractual field whenever the State enters into such contracts is such that it cannot be decided without a detailed 'adduction of evidence which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its officers, has discriminated between parties identically situat-· ed.\n\nIn the instant case allegations on which a violation of Art. 14 could be1 based are neither properly made nor established.\n\nIt is the contract and not the executive power regulated by the Constitution. which governed the relation~. of the parties. [259 A-DJ\n\n( 6) Proceedings under, Art. 226 are: summary proceedings reserved for extra· ordinary cases where the exceptional and what are described perhaps not quite~ accurately as ~'prerogative\" powers of the court are invoked. If the facts are disputed and require assessment of evidence, the correctness of which can only be tested satisfactorily by taking detailed evidence involving examination and cross-examination of witnesses, the case could not be conveniently or satisfac· torily decided in proceedings under Art. 226 of the Constitution. Even in casei~ where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of violation of Art. 14 could arise.\n\nThe appellants' cases are not such in which powers under Article 226 of the Constitution could be invoked.\n\n[253 E-G]\n\nLekhraj Satnam Das Lalvani v. M. M. Shah, Deputy Custodtan-cum-Manag~ ing Officer AIR 1966 SC 334; Banchhanidhi Rath v. The State of Orissa & Ors.\n\nAIR 1972 SC 843 @ 845 and Har Shankar & Ors. etc. etc. v. The Dy. Excis(~\n\n& Taxation Con1111r. & Ors. 3 (1975) 3 SCR 254 @ 265, reiterated.\n\nD. F. Sout!t Kheri v. Ran1 Sanghi Singh AIR 1973 SC 205; K. N. Guruswamy v. Stare of Mysore, AIR 1954 SC 592; Calcutta Gas Co. (Proprietary') Ltd. v. State of West Bengal & Ors. AIR 1962 SC 1044; Bas!ieshar Nath v. Commissioner of Income Tax, 1959 Supp. (1) SCR 528; State of M.P. v.\n\nThakur Bharat Singh 1967(2) SCR 454 and S. S. Sawhney v. D. Ramarathnam, Assistant\n\nPass port Officer, Govt. of India, New Delhi & Ors. 1967 (3} SCR 525, held not applicable.\n\n(7) The Patna High Court had very rightly divided the types of cases ill which breaches of alleged obligation by the State or its agents can be set up into three types: (i') Where a petitioner makes a grievanc.e of breach. of m~ obligation of the State in cases where on an assurance or representation o!', the State, he has acted to his prejudice and detriment but the agreement is\n\n.....\n\nRADHAKRISHNA V. BlliAR (Beg, C.J.) 251\n\nshort of. a contract. within the meaning of Art. 299 of the Constitution; (ii) Where the contract entered into between the person aggrieved and the State is in exercise of -a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on tho part of the State; (iii) Where the contract entered into between the State and the person aggrieved is nonstatutory and purely contractual and the rights ; md liabilities of the parties are governed by the termSi of the contract and the petitioner complains about breach of such contract by the State. The High Court rightly held that the appellants cases should be placed in the third category where questions of pure alleged breaches of contract are involved and that no writ or order can issue under Article 226 of the Constitution in such cases to compel the authorities to remedy a breach of contract pure and simple [255 H, 256 A-B, F-G]\n\nUmakant Saran v. The State of Bihar AIR 1973 SC 964 and Lekhraj Satram Das v. N. M. Shah AIR 1966 SC 334, followed.\n\nB. K. Sinha v. State of Bihar AIR 1974 Patna 230, approved.\n\nUnion of lndia v. Mis. Anglo-Afgan Agencies AJR 1968 SC 718; Cenfury C Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council AIR 1971 SC 1021; Robertson v. Minister of Pensions (1949)(1) K.B. 227; K. N.\n\nGuruswamy v. State of Mysore AIR J954 SC 592; D. F. South Kheri v. Ram Sang/ii Singh AIR 1973 SC 205; Mis. Shrikrishna Gyanaday Sugar Ltd. v. The State of Bihar AIR 1975 Patna 123, distinguished and held inapplicable.\n\n(8) The object of the appellants is to hold up any adjudication on the cases, by taking shelter behind Article 14 so that the stay orders obtained by them may continue. To accede to the prayer to adjourn the hearing of the cases D until after the e1nergency is lifted and yet to continue the stay orders is to permit circumvention of the constitutional mandate contained in Art. 359 and to countenance gr05s abuse of the process of the court. [259 D-E]\n\n(9) The interim stay or order or injunction could not be justified at all because so long as the Presidential Order under Art. 359 of the Constitution is operative, the enforcement of Fundamental Rights, falling under Art. 14 of the Constitution is suspended.\n\nJn such cases even if a petition or a suit is entertained and can be pending no stay order could be passed because that would E amount to indirectly enforcing the Fundamental Rights conterred by Art. 14 of the Constitution. It is only where a prima facie case {or an injunction of stay can be made out, uqite apart from a right governed by Art. 14 of the Constitution or of any other Fundamental Rights whose enforcement may have been suspended, that an injunction could be granted at all in suitable cases on suitable tertns. [260 C-El\n\nAdditional District Magistrate, Jabalpur v. Shivkant Shukla AIR 1976 SQ 1207 @ 1288-1976 Supp. SCR, 172 referred to.\n\n(10) The appellai'.its are not entitled to an opportunity' to show cause against the cancellation of the leases.\n\nThe questipn of distinguishing bet\\veen an administrative and quasi-judicial decision can only arise in the exercise of powers exercised under statutory provisions.\n\nRules of natural justice are attached tc. the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of pa.rties. \\.Vhen a contract is sought to be terminated by the officers of the State purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise\n\nof an agreement between parties, such action is not taken in purported exercise cannot operate upon1 powers which are governed by the terms of an agreement exdusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the agreement. [259 F-H, 260 Cl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 227 and 228/ 1976.\n\n(From the Judgment and Order dated 8-1-1976 of the Patna High Court in C.W.J.C. No. 1053 and 1054 of 1975).\n\nL. M. Singhvi, Sri Narain and K. J. John, for the appellants.\n\nL. N. Sinha, Sol. Genl. U. P. Singh and Shambhu Nath Iha, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThese appeals are before us after certification of the cases, raising identical questions of law as fit for appeal to this Court, dealt with by one judgment and orders of a Division Bench of the Patna High Court on two writ petitions. The petitions were directed against orders of the State Government passed in 1974 revising the rate of royalty payable by the petitioners appellants under a lease of 1970, and, after that, cancelling the lease by a letter of 15th March,\n\n1975. The petitioners' case was that the revision of the rate of royalty payable by the petitioners for the lease to collect and exploit sal-seeds from the forest area was illegal during the subsistence of the lease, and, thereafter, cancellation of the lease itself was illegal for various reasons.\n\nPrimarily, the case of the petitioners is that of a breach of contract for which the State would be liable ordinarily to pay damages if it had broken it. If the petitioners could establish some right, either contractual or equitable, to continue in possession, the State could be prevented, by appropriate proceedings, from ousting the petitioners from the forest land from whicji the petitioners have be, en gathering sal-seeds.\n\nThe petitioners had also set up mala fides on the part of the Conservator of Forests, in enhancing the royalty unreasonably and then cancelling the lease, allegedly acting ander 1:he influence of friends and associates of the Forest Minister of Bihar.\n\n. -\n\nThe relevant clause relating to revision of royalty in the written ;,; contract reads as follows :-\n\n\"The rate of royalty will be revised every three years' cycle in consultation with the lessee and the decision will be binding on the lessee\".\n\nApparently, there is no restriction, under the terms of the contract, upou the amount by which the royalty could be increased by a revision after a three years' cycle under this clause.\n\nThe lessee is only entitled, under the contract, to be consulted before a revisi.on.\n\nBut, the decision of the Governmental authorities to enhance is binding upon him after that.\n\nHence, if this was the only term of the contract on this question, the petitioners could not complain of unreasonable enhancement in the revised rate of royalty.\n\nUnder clause 4 of the lease, the lessee had to establish a factory within the State of Bihar for processing of sal-seeds arid extraction of oil therefrom within period of five years from the date of the agreement, failing which the agreement itself was to terminate.\n\nThe questions which apparently arose appertained to action alleged by the\n\nState to fall within the terms of the agreement between the parties regulated by the duly signed contract which was presumably executed in compliance with the provisions of Article 299 of the Constitution.\n\nPrima facie, therefore, the appellants can only get their\n\nRADHAKRISHNA v. BlliAR (Beg, C.J.) 253\n\nremedies, if they can obtain any at all, through ordinary suits for A damages or for injunctions to restrain breaches of contract provided they could show how the contracts were broken or were going to be broken.\n\nThe writ petitions, however, raise questions relating not only to action lying within the sphere regulated by the law of contract, but, according to the petitioners, by constitutional provisions relating to B the exercise of the executive powers of the State Government contained in Article 298 which reads as follows :- ·\n\n\"298. The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose : c Provided that-\n\n( a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make Jaws, be subject in each State to legislation by the State; and\n\n(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws be subject to legislation by Parliament''.\n\nIt is urged vehemently by Dr. L. M. Singhvi, appearing on behalf of the petitioners-appellants, that the State, acting in its executiw\n\ncapacity through its Government or its officers, even in the contractual field, cannot escape the obligations imposed upon it by Part III of the Constitution. The only article, however, in Part III of the Constitution relied upon by Dr. Singhvi is Article 14 which'8ays :\n\n\"14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India\".\n\nIt can be and has been urged on behalf of the State that Governmental authorities when acting in the contractual field, could not be controlled by Article 14 of the Constitution at all.\n\nWhen the State had entered into contracts with citizens who carry on their trade and pay the royalties. In accordance with the agreemenfs reached between the State and citizens, it does not exercise any G special governmental or statutory powers.\n\nIn such cases, the State as well as the citizen with whom it contracts are both eqnally subiected to the law of contract. It has been urged on behalf of the respondent State that there has been no breach of contract in the cases before us.\n\nThe State is, according to the learned Solicitor General, appearing for the State of Bihar, not claiming to be above the law of contract governing all parties which subject themselves H to the law of contract. The dispute whether there is or there is not a breach of contract should, according to the contention on behalf of the State, be determined by ordinary civil courts as in every case\n\nbdween ordinary litigants who cannot invoke the powers of the High Courts under Article 226 of the Constitution simply because there is a dispute whether an agreement has been broken or not.\n\nEqual subjec; tion of all parties, including the State, to the same procedural reqwrements, when such disputes are to be adjudicated upon, means that the State 'should be placed on the same footing a,, an ordinary litigant.\n\nIt should neither enjoy special benefits and privileges, nor be subjected to special burdens and disadvantages.\n\nThis should, it is urged, follow from a strict application of Article 14 if the State were to be, as a party to a contract and a litigant, placed on the same footing as other parties who enter intosuch contracts.\n\nIt is true that the special provisions of Article 299 of the Constitution are there to protect public interest so that the contracts by or on behalf of the Government have to comply with the special requirements of form.\n\nBut, once the State enters into the contraotual sphere after the requirements of form, contained in Article 299, have been complied with, does it .have to take its place, in the eye of law, side by side with ordinary parties and litigants or has it any special obligations or privileges attached to it even when it acts within this field ?\n\nDr. Singhvi's argument that the State Government had some special obligations attached to it would have appeared more plaiisible if it could be shown that the State or its officers or agents had practised some discrimination against the petitioners-appellants at the very threshold or at the time of entry into the field of contract so as to exclude them from consideration when compared with others on any unreasonable or unsustainable ground struck by Article 14 of the Constitution. It is true that the Article 14 of the Constitution imports a limitation or imposes an obligation upon the State's executive power under Article 298 of the Constitution. All constitutional powers carry corresponding obligations with them.\n\nThis is the rule of Jaw which regulates the operation of organs of Government functioning under a Constitution.\n\nAnd, this is exactly what was meant to be laid down by this Court in Erusian Equipment & Chemicals Ltd. v. State of Wset Bengal & Anr.,(') on which learned counsel for the appellants sought to rely strongly. It was held there (at p.\n\n677) :-\n\n\"Under Article 298 of the Constitution the Executive power of the Union and the State shall extend to the carryin2 on of any trade and to the acquisition, holding and G disposal of the property and the making of contracts for any purpose.\n\nThe State can carry on executive function by making a law or without making a Jaw.\n\nThe exercise of such powers and functions in trade by the State is subjeot to Part ill of the Constitutiori.\n\nArticle 14 speaks of equality before the law and equal protection of the laws.\n\nEquality of opportunity should apply to matters of public H contracts.\n\nThe State has the right to trade. The State has therefore the duty to observe equality. An ordinary individual\n\nr (I) [19751 2 S.C.R. 674 at 677.\n\n<:an choose not to deal with any person.\n\nThe Government cannot choose to exclude persons by discrimination.\n\nThe order of black-listing has the effect of depriving a person of equality of opportunity in the matter of public contract.\n\nA person who is on the. approved list is unable to enter into advantageous relations with the Government because of the order of black-listing.\n\nA person who has been dealing with the Government in the matter of sale and puchases of matt>- rials has a legitimate interest or expectation.\n\nWhen the State\n\n sets to the prejudice of a person it has to be supported by legality\". •.' It is thus clear .. that the Erusian Equipment & Chemicals Ltd.'s ease (supra) involved discrimination at the very threshold or at the time 0£ entry into the field of consideration of persons with whom the Government could contract at all.\n\nAt this stage, no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the indivilual citizens importinto every transaction entered into in exercise of its constitutional powers.\n\nBut, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines right& and obligations of the parties inter se. No question •arises of violation of Article 14 or of any other constitutional provision when the Sta~ or its agents, purporting to act within this field,\n\nperform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute sfeps in and confers some special statutory power or obligation on the State in the contractual field which i~ apart from contract.\n\nIn the cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here.\n\nEven in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question <>f a violation of Article 14 could arise. If those facts are dis puled and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, \"prerogative\" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked .\n\nThe Patna High Court had, very rightly divided the types of cases in which breaches of alleged obligation by the State units agents can be i; et up into three types. These were st_ated as follows :-\n\n\"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in rnses where an assurance\n\nor promise made by the State he has acted to his prejudice and predicament, bnt the agreement is short of a contract within the meaning of article 299 of the Cpnstitution;\n\n(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under cerl'ain Act or Rules framed -thereunder and the petitiol!er alleges a breach on the part of State; and\n\n(iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.\"\n\nIt rightly held that the cases such as Union of India v. M/s. Anglo- Afghan Agencies,(') and Century Spinning & Manufacturing Co. Ltd.\n\nv. U!hasnagar Municipal Council('); and, Robertson v. Minister of Pensions,(\") belong to the first category where it could be held that public bodies or the State are as much bound as private individaal are to carry out obligations incurred by them because parties seeking to bind the authorities have , altered, their position to their disadvantage or have >acled to their detnment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only.\n\nWe do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 of the Constitution now, It is enough to observe that the cases before us do not belong to this category.\n\nThe P'atna High Court also distinguished cases which belong to the second category, such as K. N. Guruswami v. The State of Mysore;(•) D. F. South Kheri v. Ram Sanehi Singh;(\") and M/s, Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar,(6 ) where the breach complained of was of a statutory obligation. It correctly pointed out that\n\nthe cases before us cfo not belong to this class either.\n\nIt then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved, It held, upon the strength of U makant Saran\n\nv. The State of Bihar;(') and Lekhrai Sathram Das v. N. M. Shah;(') and B. K. Sinha v.\n\nState of Bihar(') that no writ order can issue under Article 226 of the Constitution in such cases \"to compel the authorities to remedy are a breach of contract pure and s'mple\".\n\n(I) A.LR. 1968 S.C. 718.\n\n(2) A.I.R. 1971 S.C. 1021.\n\n(3) [1949] 1 King's Bench 227.\n\n(4) A.I, R. 1954 S.C. 592.\n\n(5) A.LR. 1973 S.C. 205.\n\n(6) AI.R. 1975 Patna 123.\n\n(7) A.LR. 1973 S.C. 964.\n\n(8) A.LR. 1966 S.C. 334.\n\n(9) A.LR. 1974 Patna 230.\n\nLearned counsel for the appellants has, however, relied upon a passage from Lekhraj Sathram Das's case (supra) where this Court observed (at p. 231);\n\n\" .... until and unless in the breach is involv_ed violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by the Court in exercise of its powers under Article 226 of the Constitution\".\n\nLearned counsel contends that in the cases before us breaches of public duty are involved.\n\nThe submission made before us is that, whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the parties, there is a dealing between the State and the citizen which involves performance of \"certain legal and public duties.\" If we were to accept this very wide proposition every case of a breach of contract by the State or its agents or its officers would call for interlerence under Article 226 of the Constitution. We do not consider this to be a sound proposition at\n\nal!.\n\nI.earned counsel for the appe_llants cited certain authorities in an attempt to support his submission that the State and its Officers are clothed with special Constitutional obligations, including those under Article 14 of the Constitution, in all their dealings with the public even when a contract is there to regulate such dealings. The anthorities cited were : D. F. South Kheri v. Ram Sanehi Singh (supra) where all that was decided, relying upon K. N. Guruswamy v. The State of Mysore (supra), was that, where the source of a right was contractual but the action compfained of was the purported exercise of a statutory power, relief could be claimed under Article 226; and, Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal & Ors.,(') where the real question considered was whether the petitioner had a locus standi to question the validity of an enactment; Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan and Anr., (2) which has nothing to do with any breach of contract but only lays down that \"Article 14 protects us from both legislative and administrative tyranny of discrimination\"; State of M.P. & Anr. v. Thakur Bharat Singh.(') which lays that even executive action must not be exercised arbitrarily but must have the authoritv of law to support it; S. S. Sawhney v. D. Ramarathnam, Assistant Passport Officer. Govt. of India, New Delhi & Ors.,(') which repeats requirements of action which satisfy Article 14 and 21 of the Constitution where compliance with these provisions is obligatory.\n\n(1) A.l.R. 1962 S.C. 1044.\n\n(2) [1959] Suppl. 1 S.C.R. 528 at 551.\n\n\n2-436SCI/77\n\nWe do not think that any of these cases could assist the appellants or is at all relevant. None of these cases lays down that, when the State or the officers purport to operate within the contractual field and the only grievance of the citizen could be tlrat the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petitio11under Article 226 of the Constitution and not an ordinary suit.\n\nThere is a formidable array of authority against any such a proposition.\n\nIn Lekhraj Sathramdas Lalwani v.\n\nM. M. Shah, Deputy Custodian-cum-Ma1111ging Officer, Bombay & Ors., (supra) this Court said (at p. 337);\n\n\"In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution\".\n\nIn Banchhanidhi Rath v. The State of Orissa & Ors(l) this Court declared (at p. 845) : :,_ \"If a right is claimed in terms of a contract such a right cannot be enforced in a writ petition.\"\n\nIn Har Shankar & Ors. etc. etc. v. The Dy. Excise & Taxation Commr. & Ors.,( 2 ) a Constitution Bench of this Court observed (at p. 265): \"The appellant have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations\".\n\nLearned Solicitor General, appearing for the State, contended that there could be no aspect of Article 14 of the Constitution \"involved in a case where no comparison of the facts and circumstances of a particular petitioner's case with those of other persons said to be similarly situated is involved. In such a case, he submitted, there was no possibili!y of inferring a discrimination. In reply, learned counsel for the appellants sought to direct our attention towards some allegations showing that there was discrimination between appellants and other parties governed by similar contracts in other areas. We doubt very much whether the doctrine of discrimination can be at all availed of against the State's section purporting to be taken solely within the contractual field when no aspect of any statutory or constitutional obligation appears either from incontrovertible facts or applicable legal provisions.\n\nIndeed, it has been held in C. K. Achutan v. State of Kerala & Ors.,(') that no question of a violation of Article 14 arises even where one out of the several persons' is selected by the State for a particular contractual transaction. Learned counsel for the appellants submitted that there was a conflict between what was laid down here and the law declared by this Court in Erusian Equipment & Chemicals Ltd.'s cse (supra). We think that the two cases are distinguishable on facts. The propositions of law laid dO\\vn in the two cases must b<: read in the context of facts established in each case. In any event,\n\n(I) A.l.R. 1972 S.C. 843 at 845.\n\n(2) [l975] 3 S.C.R. 254 at 265\n\n(3) 119591 Suppl. (I) S.C.R. 787.\n\n---.\n\n- __ ......\n\nthe cases before us do not raise any question of discrimination alleged at the stage of entry into the contractual area which could attract the application of Article 14.\n\nIn the cases. before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its Officers, has discriminated between parties identically sitirated.\n\nOn the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already inidicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facfs apparent in the cases before us.\n\nThe real object of the appellants seems to be to hold up a, ny adjudication on the cases before us by taking shelter behind Article 14 so that the stay orders obtained by them, presumably on representations made to this Court that no oaspect of enforcement of Article 14 of the Constitution 'was involved. We think that to accede to the prayer on behalf of the appellants to adjourn the hearing of these cases until after the Emergency is lifted and. yet to continue the stay orders is to permit a circumvention of the Constitutional mandate contained in Article 359 and to countenance a gross abuse of the processes of the Court.\n\nA rather desparate argument which has been addressed to us on behalf of the appellants jg that they were entitled to an opportunity to show cause against the cancellation of the leases. It was urged, on the sfrength of A. K. Kraipak & Ors. etc. v. Union• of India & Ors.,(1) that the distinction made between administrative and quasi-judicial action is thin and a vanishing one. This argument appears to us to be wholly irrelevoant inasmuch as a question of the distinction between an administrative and quasi-iudicial decision can only arise in the exercise of powers under statutory provisions. Rules of natural justice are attached to the performance of certain functions regulated by stoatutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a smtutorv power at all. · .\n\nIn Adlfilional District Maiistrate, Jabalpur, v. Shivakant Shukla,(•) 1t was pmnted out (at p. 1288):\n\n(\\) \\1970] 1 S.C.R. 457.\n\n(2) A.l.R. 1976 S.C. 1207 at 1288.\n\n\"The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follow from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey's principles of the Rule of Law is found embodied.\n\nSometimes, they may be implied and read the legislation dealing with rights protected by Article 19 of the Constitution.\n\nThey could at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable\".\n\nThe !imitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively.\n\nThe only question which normally arises in such cases is whether the action complained of i's .or is not in consonence with the terms of the agreement.\n\nAs already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by acceptable evidence. In that case, the interim stay order or injunction could not be justified at all because so long as a Residential Order, under Article 359 of the Constitution, is operative, the enforcement of fundamental rights falling under Article 14 is suspended.\n\nIn such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Article 14 of the Constitution. It is only where a prima fade case for an injunction or stay can be made out, quite apart from a right covered by Article 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended, that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that t)lis Court had, apparently, granted the interim stay which must now be discharged.\n\nConsequently, we dismiss these appeals with costs throughout, and discharge the stay orders.\n\nSR.\n\nAppeals dismissed.", "total_entities": 114, "entities": [{"text": "RADHAKRISHNA AGARWAL & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "RADHAKRISHNA AGARWAL & ORS", "offset_not_found": false}}, {"text": "March 17, 1977", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "March 17, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nConstitution of India, 1950- Article 226 cannot be invoked for alleged breaches of contract-Remedy lies through ordinary civil .uit for da1nages."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. 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"metadata": {}}, {"text": "Articles 298 and 299", "label": "PROVISION", "start_char": 459, "end_char": 479, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 796, "end_char": 803, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 299", "label": "PROVISION", "start_char": 1122, "end_char": 1130, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "the State of Bihar for", "label": "RESPONDENT", "start_char": 1382, "end_char": 1404, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR & ORS", "offset_not_found": false}}, {"text": "15th March 1975", "label": "DATE", "start_char": 1716, "end_char": 1731, "source": "ner", "metadata": {"in_sentence": "and after that, canceUed the lease by a letter 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{"text": "AIR 1966 SC 334", "label": "CASE_CITATION", "start_char": 6586, "end_char": 6601, "source": "regex", "metadata": {}}, {"text": "AIR 1972 SC 843", "label": "CASE_CITATION", "start_char": 6652, "end_char": 6667, "source": "regex", "metadata": {}}, {"text": "(1975) 3 SCR 254", "label": "CASE_CITATION", "start_char": 6757, "end_char": 6773, "source": "regex", "metadata": {}}, {"text": "AIR 1973 SC 205", "label": "CASE_CITATION", "start_char": 6834, "end_char": 6849, "source": "regex", "metadata": {}}, {"text": "AIR 1954 SC 592", "label": "CASE_CITATION", "start_char": 6887, "end_char": 6902, "source": "regex", "metadata": {}}, {"text": "AIR 1962 SC 1044", "label": "CASE_CITATION", "start_char": 6972, "end_char": 6988, "source": "regex", "metadata": {}}, {"text": "RADHAKRISHNA V. BlliAR", "label": "JUDGE", "start_char": 7646, "end_char": 7668, "source": "ner", "metadata": {"in_sentence": "the State, he has acted to his prejudice and detriment but the agreement is\n\n.....\n\nRADHAKRISHNA V. BlliAR (Beg, C.J.) 251\n\nshort of."}}, {"text": "Art. 299", "label": "PROVISION", "start_char": 7730, "end_char": 7738, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8468, "end_char": 8479, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "AIR 1973 SC 964", "label": "CASE_CITATION", "start_char": 8646, "end_char": 8661, "source": "regex", "metadata": {}}, {"text": "AIR 1966 SC 334", "label": "CASE_CITATION", "start_char": 8699, "end_char": 8714, "source": "regex", "metadata": {}}, {"text": "AIR 1971 SC 1021", "label": "CASE_CITATION", "start_char": 8931, "end_char": 8947, "source": "regex", "metadata": {}}, {"text": "AIR 1973 SC 205", "label": "CASE_CITATION", "start_char": 9095, "end_char": 9110, "source": "regex", "metadata": {}}, {"text": "Article 14", "label": "PROVISION", "start_char": 9332, "end_char": 9342, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 359", "label": "PROVISION", "start_char": 9603, "end_char": 9611, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 359", "label": "PROVISION", "start_char": 9805, "end_char": 9813, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 9901, "end_char": 9908, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 10139, "end_char": 10146, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 10284, "end_char": 10291, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 11759, "end_char": 11772, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Sri Narain and K. J. John, for the appellants.", "canonical_name": "L. M. Singhvi"}}, {"text": "Narain", "label": "LAWYER", "start_char": 11778, "end_char": 11784, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Sri Narain and K. J. John, for the appellants."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 11789, "end_char": 11799, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Sri Narain and K. J. John, for the appellants."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 11822, "end_char": 11833, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 11846, "end_char": 11857, "source": "ner", "metadata": {"in_sentence": "U. P. Singh and Shambhu Nath Iha, for the respondents."}}, {"text": "Shambhu Nath Iha", "label": "LAWYER", "start_char": 11862, "end_char": 11878, "source": "ner", "metadata": {"in_sentence": "U. P. Singh and Shambhu Nath Iha, for the respondents."}}, {"text": "BEG", "label": "JUDGE", "start_char": 11946, "end_char": 11949, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThese appeals are before us after certification of the cases, raising identical questions of law as fit for appeal to this Court, dealt with by one judgment and orders of a Division Bench of the Patna High Court on two writ petitions."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 14201, "end_char": 14209, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 299", "label": "PROVISION", "start_char": 14711, "end_char": 14722, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 298", "label": "PROVISION", "start_char": 15341, "end_char": 15352, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 15752, "end_char": 15762, "source": "ner", "metadata": {"in_sentence": "The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose : c Provided that-\n\n( a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make Jaws, be subject in each State to legislation by the State; and\n\n(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws be subject to legislation by Parliament''."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 16082, "end_char": 16095, "source": "ner", "metadata": {"in_sentence": "It is urged vehemently by Dr. L. M. Singhvi, appearing on behalf of the petitioners-appellants, that the State, acting in its executiw\n\ncapacity through its Government or its officers, even in the contractual field, cannot escape the obligations imposed upon it by Part III of the Constitution.", "canonical_name": "L. M. Singhvi"}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 16425, "end_char": 16432, "source": "ner", "metadata": {"in_sentence": "The only article, however, in Part III of the Constitution relied upon by Dr. Singhvi is Article 14 which'8ays :\n\n\"14."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 16436, "end_char": 16446, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 16589, "end_char": 16594, "source": "ner", "metadata": {"in_sentence": "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India\"."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 16745, "end_char": 16755, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "State of Bihar", "label": "GPE", "start_char": 17350, "end_char": 17364, "source": "ner", "metadata": {"in_sentence": "The State is, according to the learned Solicitor General, appearing for the State of Bihar, not claiming to be above the law of contract governing all parties which subject themselves H to the law of contract."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 17747, "end_char": 17758, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 18259, "end_char": 18269, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 299", "label": "PROVISION", "start_char": 18453, "end_char": 18464, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 299", "label": "PROVISION", "start_char": 18733, "end_char": 18744, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 19428, "end_char": 19438, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 19480, "end_char": 19490, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 298", "label": "PROVISION", "start_char": 19596, "end_char": 19607, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 298", "label": "PROVISION", "start_char": 20062, "end_char": 20073, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 20489, "end_char": 20499, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Erusian Equipment & Chemicals Ltd.", "label": "ORG", "start_char": 21434, "end_char": 21468, "source": "ner", "metadata": {"in_sentence": "It is thus clear .. that the Erusian Equipment & Chemicals Ltd.'s ease (supra) involved discrimination at the very threshold or at the time 0£ entry into the field of consideration of persons with whom the Government could contract at all."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 22183, "end_char": 22193, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 22758, "end_char": 22768, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 23013, "end_char": 23023, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 23329, "end_char": 23340, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 23637, "end_char": 23648, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 299", "label": "PROVISION", "start_char": 24145, "end_char": 24156, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 25569, "end_char": 25580, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "P'atna High Court", "label": "COURT", "start_char": 25692, "end_char": 25709, "source": "ner", "metadata": {"in_sentence": "The P'atna High Court also distinguished cases which belong to the second category, such as K. N. Guruswami v. The State of Mysore;(•) D. F. South Kheri v. Ram Sanehi Singh;(\") and M/s, Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar,(6 ) where the breach complained of was of a statutory obligation."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 26436, "end_char": 26447, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Lekhraj Sathram Das", "label": "OTHER_PERSON", "start_char": 26885, "end_char": 26904, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the appellants has, however, relied upon a passage from Lekhraj Sathram Das's case (supra) where this Court observed (at p. 231);\n\n\" .... until and unless in the breach is involv_ed violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by the Court in exercise of its powers under Article 226 of the Constitution\"."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 27262, "end_char": 27273, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 27904, "end_char": 27915, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 28207, "end_char": 28217, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 28660, "end_char": 28671, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 29031, "end_char": 29041, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14 and 21", "label": "PROVISION", "start_char": 29442, "end_char": 29459, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 30001, "end_char": 30012, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 30457, "end_char": 30465, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 31091, "end_char": 31101, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "C. K. Achutan", "label": "OTHER_PERSON", "start_char": 31941, "end_char": 31954, "source": "ner", "metadata": {"in_sentence": "Indeed, it has been held in C. K. Achutan v. State of Kerala & Ors.,(')"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 32020, "end_char": 32030, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 32807, "end_char": 32817, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 32881, "end_char": 32891, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 32998, "end_char": 33008, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 33243, "end_char": 33253, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 34273, "end_char": 34283, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 34409, "end_char": 34419, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 359", "label": "PROVISION", "start_char": 34704, "end_char": 34715, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "1970] 1 S.C.R. 457", "label": "CASE_CITATION", "start_char": 35881, "end_char": 35899, "source": "regex", "metadata": {}}, {"text": "Article 14", "label": "PROVISION", "start_char": 36236, "end_char": 36246, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Dicey", "label": "OTHER_PERSON", "start_char": 36295, "end_char": 36300, "source": "ner", "metadata": {"in_sentence": "They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey's principles of the Rule of Law is found embodied."}}, {"text": "Article 19", "label": "PROVISION", "start_char": 36442, "end_char": 36452, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 36554, "end_char": 36564, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 359", "label": "PROVISION", "start_char": 37380, "end_char": 37391, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 37479, "end_char": 37489, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 37694, "end_char": 37704, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 14", "label": "PROVISION", "start_char": 37840, "end_char": 37850, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1977_3_261_311_EN", "year": 1977, "text": "• 261\n\nV. TULASAMMA & ORS.\n\nV. SESHA REDD! (DEAD) BY L. Rs.\n\nMarch 17, 1977\n\n(P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.J B Hindu Succession Act, 1956-S. 14(1) and (2)-Scope of.\n\nSection 14 ( !) of the Hindu Succession Act, 1956 proyides that \"any property possessed by a female Hindu! whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and \\llOt as a limited owner}' According to the explanation to this sub-section the term \"property'' includes both movable and immovable property acquired by a female Hindu in: Heu of maintenance or arrears of maintenance or in any other manner C whatsoever. Sub-section (2) provides that nothing in sub-s. (!) shall apply to any property acquired by way of gift or under a will or any other instrument which prescribes a restricted estate in such property.\n\nAt the time of his death, the appellant's. husband, who was the1 brother of the respondent, lived in a state of jointness with the respondent.\n\nOn her husband's death the appellant filed a petition for maintenance. The respondent entered into a compromise with her, one of the terms of which was that the D .appellant should enjoy during her life time certain properties given tOI her and on her death tbooe properties should revert to the respondent. The appellant sold some of the properties.\n\nThe respondent sought a declaration that under the terms of the compromise the appellant's interest, which was a limited one, could not be enlarged into a~ absolute interest enabling her to sell the proper- .ties.\n\nThe District Munsiff decreed the suit.\n\nOn appeal, the District Judge held that by virtue of the provisions of the 1956-Act, the appellant had acquired an absolute interest in the properties and that s. 14(2) had no application to the case because the compromise was an instrument in recognition of_ a pre-existing right. The High Court. on the other hand, held that the compromise was an instrument contemplated by s.14(2) and the appellant could not get an absolute interest, under s.14(1); and that since her husband died even before the Hindu Women's Right to Property Act, 1937 came into force, she could not be said 10 have any pre-existing right because she had got the right for the first time under the compromise.\n\nAllowing the appea1,\n\n(Per Bhagwati and Gupta, JJ)\n\nHELD : Since the properties were acquired by the appellant under the compromise in lieu or satisfaction of her right to rnaintainance it is s. 14(1) and not •.14(2) which would be applicable.\n\nThe appellant must be deemed to have become fuJJ owner of the properties notwithstanding that the compromise pres\n\ncribed a limited. interest in the properties. [274 C-D] G\n\nl. Under the Sastric Hindri , Law a widow has a right to be maintiiined out of joint family propertY and this right would ripen into a charge if the \\l/idoW took the necessary steps for having her maintenance ascertained and specifi\n\ncally charged on the joint famiJy property and even if no specific charge were created, this right would be enforceable against joint family property i.11. the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to 1 be maintailled is not a jus in rem, since it does not give any interest in the joint family property but it is jus ad ren1.\n\nWhen specific H property is aJlotted to the widow in Jieu of her claim for mainfenance, the a11otment would be in satisfaction of her jus ad rem, namely, the rhht tO be maintained out of the joint family property. It would not be a grant for the\n\nfirst time without any pre-existing right in the widow.\n\nThe widow would be getting the J?fOperty in. virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right. [273 ACl\n\n2(a) Section 14(1) is large in its amplitude and covers every kind of acquisition of property by: a female Hindu including acquisition in lieu of maintenance.\n\nWhere such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become tho full owner of the property. [268 G]\n\n(b) The words \"any property\" are large enough to cover any and every kind of property but in order to expand the reach and ambit of the section anJ. 1nake it all-comprehensive, the Legislature has enacted the explanition. [268 BJ\n\n( c) Whatever be the kind of property movable or immovalile and whichever be the mode of acquisition, it would be covered by sub-s. ( 1), the object of the Legislature being to wiye out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric Law, tOI abridge the stringent provisions against proprietary rights and to recognise her status as an independent and absolute owner of property. [268 D]\n\n(d) In Gummalapura Taggina Matada Kottun1slviimi v.\n\nSetra Veeravi 1a [1959] Supp. I SCR 968, this Court construed the word• \"possessed of\"\" in a broad sense and in their widest connotation to mean as \"the state of owning or having in one's hand or power\" which need not be actual or physical possession or personal occupation of the property by the Hindu female, but may be possession in law.\n\nIt may be actual or constructive or in any other form recognised by law. [268 E-F]\n\n(e) Sub-section (2)~ which is in the nature of a proviso to sub-s.(1), excepts certain kinds of acquisition of property by a Hindu female fron1 the operation of sub-s. (I). [269 Bl\n\n(f) Sub-seetion (2), must be read in the context of sub-s.(1) to leave as large a scope for operation as. possible to sub-s.(1). So read, it must be confined to cases where property is acquired by a female Hindu for the fit time as a grant without any pre-existing right under a gift, will, instrument, decree.\n\norder or award, the terms of which prescribe a restricted estate in the property.\n\n[269 HJ\n\n(g) The legislative intendment in enacting sub-s.(2) \\Vas that this subsection s.hould be applicable only to cases where the acquisition of property is n1ade by a Ilindu female for the first time without any pre-existing right. Where, ho\\vever, property is acquired by a Hindu female at. a partition or in lieu of her right toi maintenance it is fn virtue of a _pre-existing right and such acquisition\n\nf.VOUld not_ b_e within the. scope and ambit of sub-s.(2) even if the instrument tllotting the property prescribes a restricted estate in the property. Where property is acquire<;! by a Hindu female under an instrument in virtue of a preexisting right such as a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she should have no more than limited interest in the property a provision in\n\nthe instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on -her ¥1.terest being a disability imposed by law would be wiped out awl ht:r limited interest would be enlarged under sub-s. (1). [270 D; 272 A-Bl In the instant case the appellant claimed maintenance out of the ioint family properties in the hands of her deceased husband's brother, and the claim was decreed and in execution of the decree the respondent entered into a compron1ise and allotted properties tO her in lieu of her claim for maintenance. The appellant must in the circumstances be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in the properties. It is sub-s.(1) and not sub-s.(2) of s. 14 \\vhich must\n\nbe helct to be applicable on these facts.\n\nS. S. Munna Laf v. S. S. Rajkun1ar, [1962] Supp. 3 SCR 418 GurnmaTapura Teggina Matada Kotturaswami v. Setra Verrayva [1959] Supp. 1\" SCR 96& Mangal Sb11?f1 v. Ratno, AIR 1967 SC 1786 Badri Pershad v. Sn1t. Kano Devi\n\nV. TULASAMMA v. V. SESHA REDD! 263\n\n[1970] 2 SCR 95 Nirmal Chand v. Vidya Wanti (dead) by her Legal represen A tatives. C.A. No. 609' of 1965, decided on January 21, 1969, Rani Bai v.\n\nShd Yadunandan Ram, [1969] 3 SCR 789 referred to.\n\nB. B. Patil, v. Gangabai, AIR J972 Born. 16, Sumeshwar Misra v.\n\nSwami Nath Tiwari AIR 1970 Pat. 348, Reddayya v. Varapula Venkatariu AIR 1965 A.P. 66, Lakshmi Devi v. Shankar Jha, AIR 1%7 Mad. 429, N. Venkanagouda\n\nv. Hanamangouda, AIR 1972 Mys. 286, Smt. Sharbati Devi v. Pt. Hiralal AIR 1964 Pb. 114, Sesadhar Chandra Dev. v. Smt. Tara Sundari Dasi,\n\nAIR. 1962 Cal. 438, Saraswathi Ammal v. Anantha Shenoi, AIR 1966 Ker. 66 nnd Kunii l'homman v. Meenakshi, !LR [1970] 2 Ker. 45 approved.\n\nGurunadham v, Sundaraiulu, /LR [1968] 1 Mad. 467 Sentlumam v. Subramania, !LR [1967] I Mad. 68, S. Kachapalaya Gurukkal v. V.\n\nSubramani Gurukkal, AIR 1972 Mad. 279 Shiva Puian 11.ai v. Jamune Missir, !LR [1947] Pat. 1118 Gopisetti Kondaiah v. Gunda Subbrayudu, !LR [1968] A.P. 621, Ram Jag Missir v. The Director of Consolidation, U.P. AIR 1975 All. 151 and Aiab\n\nSingh v. Ram Singh AIR 1959 J&K 92 not approved.\n\nC (per Fazal Ali, J concurring)\n\nThe High Court was in error in holding that the appellant would have only a limited interest and in setting aside the alienations made by her.\n\nThe compromise by which the properties were allotted to her in lieu of her mairitenance were merely in recognition of her pre-existing right of maintenance and, therefore, her case would be taken out of the ambit of s. 14(2) and would fall withins. 14(1) read with the Explanation thereto. [311 GJ\n\nThe incidents and characteristics of a Hindu woman's right to maintenance are:\n\n(i) that a Hindu womm's right to maintenance is a personal obligation so far as the husband is concerned, and, it is his duty to maintain her even if he\n\nhas no property. If the husband has property then the right of the widow to n1aintenance becomes an equitable charge on his property and any person v./ho\n\nsuCteeds _ to the property carries with it the legal obligation to maintain the E widow. [286 DJ\n\n(ii) though the widow's right to maintenance is not a right to property but it is a pre-existing right in_ property, that is, it is a jus ad reni and not jus in rem and it cannot be enforced by the widow who can get a charge created for the maintenance on the property either by an agreement or by obtaining a decree from the civil court. [286 E]\n\n(iii) that the right of maintenance is a matter of moment is of such importan.ce that even if the joint property is sold and the purchaser has notice F of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance. [286 F]\n\n(iv) that the right to maintenance is a pre-existing right which existed in the Hindu law long before the passing of the Act of. 1937 or the Act of 1946, and is, therefore, a pre-existing right. [286 G]\n\n(v) that the right to maintenance flows from the social and temporal relationship between the husband and the wife b~ virtue of which the wife becomes G a sort of co-owner in the property of her husband, though her co-ownership fs of , a Eubordinate nature. [286 H]\n\n(vi) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is tn a position to make due arrangementS for her maintenance [287 A]\n\nDigest of Hindu Law, Vol. II, pp. 121, 123 and 243 by Colebrooke.\n\nII Hindu Law by Gopal Chandra Sarkar Sastri, p. 533.\n\nTreatise on Hindu Law & Usage by Mayne, 11th edn. pp. 684, 813, 816, 822, Hindu Law by Molla, p. 591.\n\nJ1larayan Rao Ramchandra Pant v. Ramabai, L.R. 6 I.A., 114, Lakshman Ramchandra Joshi & anr. v. Satyabhamabai, J.L.R. 2 Born. 494, Narbadabai\n\nv. Mahadeo Narayan, Kashinath Narayan and Shamabai, I.L.R. 5 Bom. 99, Mst. Dan Kaur v. Mst. Sar/a Devi, L.R. 73 I.A. 208, Pratapmull Agarwal/a\n\nv. Dhanabati Bibi, L.R. 63 I.A. 33, Rani Bai v. Shri Yadunandan Ram &: anr. [1969] 3 S.C.R. 789, Sheo Dayal Tewaree v. Judoonath Tewaree (1898] 9 W.R. 61, Srinath Das v. Prabodh Chunder Das, 11 C.L.J. 580, Hemangini Dasi v.\n\nKedarnath Kundu Chowdhry l.L.R. 16 Cal. 758.\n\nK. V. Thangavdu v. The Court of Words, Madras [1946] 2 M.L.J. 143, Sarojinidevi v. Subrahmanyam J.L.R. 1945 Mad. 61, Jayanti Subbiah v. Alamelu Mangamma I.L.R. 27 Mad. 45 and Ye/lawa v. Bhimangavda J.L.R. 18 Born. 452 referred to.\n\nAn examination of the decisions of this Court establishes the following principles of law:\n\n(i) that the provisions of s. 14 of the 1956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited inte. rest possessed by a Hindu widow which was in consonance with Lhe changing temper of the times;\n\n[295A]\n\n(ii) it is manifestly clear that sub-s. (2) of s. 14 does not refer to any transfer which merely recognises a prHxistin_g right without creating or conferring a ne; v title on the widow. This was clearly held by this Court in Badri Pershad's case.\n\n[295B]\n\n(iii) that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession. ( I295C]\n\n(iv) that sub-s., (2) of s. 14 is merely a proviso to sub-s. (I) of s. 14 and has to be interpreted as a proviso and not in a manner so as to destroy the effect of the main provision.\n\nI295D]\n\nThus on a conspectus of the Shastric Hindu Law, the provisions of the 1956- Act and the decisions of this Court the following conclusions emerge:\n\n1. A Hindu female's right to maintenance is not an empty formality or an illusory claim but is a tangible right against property which flows from spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right n1ay not be a right to property but is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is a pre-existing right so that any transfer de.claring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. [310 BC]\n\n2. Section 14(1) and the Explanation thereto have been. couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956-Act and promote the socio-economic ends sought to be achieved by this long needed legislation. [3 l OD]\n\n3. Section 14(2) is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially.\n\nThe proviso should not be construed in a .manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision~ [310 E]\n\n4. Section 14(2) applies to instruments, decrees, awards, gifts etc., which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, dedare or recognise pre-existing rights.\n\nIn such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate\n\n\nin this sphere. Where, however, an instrument merely declares or recognises a A pre-existing right, such as to a claim to maintenance .. or partition or share to, which the female is entitled, the sub-section has absolutely no application and\n\nthe female's limited interest would automatically be enlarged into an absolute -one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrum:erit is taken .out of the ambit of sub-s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. [310F-G]\n\n~- The use of express terms like \"property acquired by a female Hindu at a partition\", \"or in lieu of maintenance\", \"or arrears of maintenance\" etc., in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2). f310H]\n\n6. The words \"possessed by\" in s. 14(1) aro of the widest amplitude and C include th~ state of owning a property even though the owner is not in actual or _physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956-Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest in the property. It is equally well-settled' tha.t the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. [311 A-Bl D\n\n7. That the words \"restricted estate\" used ins. 14(2) are wider than limited interest as indicated_in s. 14(1) and they include not only limited interest but a]s() any other kind of limitation that may be placed on the transferee. [311 CJ\n\nIn the instant case, the properties in dispute were allotted to the appellant under a compromise certified by the Court. Secondly, the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting E her from alienating the properties. Thirdly, despite these restrictions, she continued to be in possession of the properties till the alienations \\Vhich she had )l made in 1960 and 1961 were after she had acquired an absolute interest in the properties.\n\nSnu. Naraini Devi v. Smt. Ramo Devi & ors [1976] 1 S.C.C. 574 overruled.\n\nS. S. Munnalal v. S. S. Rajkumar [1962] Supp. 3 S.C.R. 418; Eramma v.\n\n\nB. B. Patil v. Gangabai A.LR. 1972 Born. 16; Gaddam Reddayya v .\n\nVarapu/a Venkataraju & Anr. A.LR. 1965 A.P. 66; Sumi!shwar Mishra v. Swami G Nath Tiwari A.I.R. 1970 pat. 348; H. Venkanagouda v. Hansun1angouda A.LR. 1972 Mys. 286; Smt. Sharbati Devi v. Pt. Hirala/ & Anr. A.l.R. 1964 Punjab 114; Sasadhar Chandra Dev v. Snit. Tara Sundari Desi A.LR. 1962 Cal. 438, approved.\n\nNareyan Patra v. Tara Patrani [1970] 36 Cuttack Law Times-A.l.R. 1970 Drissa 131; Shiva Pujan Rai & Ors. v. Jamuna Missir & Ors. I.L.R. 47 Pat.\n\n1118; Gopisetti Kondaiah v. Gunda Subbarayudu I.LR. [1968] A.P. 621; Ram Jag Misir v. The Director of Consolidation, U.P. AIR 1975 All. 151; Ajab\n\nSingh & Ors. v. Ram Singh & Ors. A.I.R. 1959 J, & K. 92; S11r1U1dham v.\n\nSundararaju/u I.LR. [1968] 1 Mad. 567; Kachapalaya Gurukkal v. V. Subramania Gurukkal A.LR. 1972, Mad. 279 not approved.\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1360 of 1968.\n\n(Appeal by Special Leave from the Judgment and Order dated 22-11-1967 of the Andhra Pradesh High Court in Second Appeal No. 804/64).\n\nT. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for B the appellants.\n\nT. V. S. Narasimhachari, for the respondents.\n\nThe Judgment of P. N. Bhagwati and A.C. Gupta, JJ. was delivered by Bhagwati, J. S. Murtaza Fazal Ali, J. gave a separate opinion.\n\nBHAGWATI, J.-We have had the advantage of reading the judgment prepared by our learned brother S. Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but we would prefer to give our own reasons.\n\nThe facts giving rise to the appeal are set out clearly and succinctly in the judgment of our learned brother and we do not think it necessary to reiterate them.\n\nThe short question that arises for determination in thi's appeal is as to whether it is sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act, 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest given to her in the property. If sub-section (1) applies, then the limitations on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the fostrument.\n\nThe question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves.\n\nIt is indeed unfortunate that though it became evident as far back as 1967 that subsections (1) and (2) of section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which if must always possess in order to guide the affairs of men. the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless litigation.\n\nThis is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrates forcibly the need of an anthority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory\n\n',, I\n\nV. TULASAMMA v. v. SESHA REDD! (Bhagwati, J.) 267\n\nathorities in the country as also with the legal profession and imme- A dmtely respond by making recommendations for suitable amendments whenever it is found that a particular statutory provision is, by reason of mapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the resultit was intended to achieve. If there is a close inter-action between the adjudicatory wing of the State and a dynamic and ever alert authority or B body which responds swiftly to the draw-backs and deficiencies in the law in action, much of the time and money, which is at present expended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to the people.\n\nSince. the determination of the question in the appeal turns on the c true interpretation to be placed on sub-section (2) read in the context of sub-section (1) of section 14 of the Hindu Succession Act, 1956, it would be convenient at this stage to set out both tbe sub-sections of that section which read as follows :\n\n\"14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a I> limited owner.\n\nExplanation.-In this sub-section, \"property\" includes both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatever, and also any such property held by her as stridharas immediately before the commencement of this Act.\n\n(2) Nothing contained in sub-section (1) shll apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.\" Prior to the enactment of 'section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject.\n\nThe Legislature, by enacting sub-'section ( 1) of section 14, intended, as pointed by this Court in S.S. Munna Lal v. S.S. Raikumar(') \"to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate\".\n\nThis Court pointed out that the Hindu Succession Act, 1956 is a codifying enactment and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession.\n\nThe Act confers upon Hindu females full rights of inheritance\n\n(!) [19621 Supp. 3 S.C.R. 418,\n\nand sweeps away the traditional limitations on her powers of disposition which were regarded under the Hindu law as inherent in her estate\".\n\nSub-section (1) of section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.\n\nThe words \"any property\" are, even with- .out any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all-comprehensive, the Legislature has enacted an explanation which says that property would include \"both movable and immovable property acquired by a female Hindu by inheritance or device, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relativeor not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatever, and also any such property held by her as stridhana immediately before the commencement\" of the Act.\n\nWhatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by subsection ( l) of section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisiO!lls against proprietary rights which were often regarded as evidence of her perpetual tutelege and to recongnize her status as an independent and absolute owner of property.\n\nThis Court has also in a series of decisions given a most expansive interpretation to the language of sub-section ( 1) of section 14 with a view to advancing the social purpose of the legislation and as part of that process, construed the word's 'possessed or also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva(') that the words 'possessed of mean \"the state of owning or having in one's hand or power\".\n\nIt need not be actual or physical possession or personal occupation Of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Elaborating the concept, this Court pointed out in Mangal Singh v.\n\nRattno( 2 ) that the section covers all cases of property owned by a female Hindu although she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property.\n\nNow, sub-section (2) of section 14 provides that nothing contained in sub-section ( 1) shall apply to any property acquirea by way of gift or under a will or any other instrument or under a decree or order\n\n(l) [19591 Supp. I S.C.R. 968.\n\n(2) A.LR. 1967 S.C. 1786.\n\nA-·\n\nV. TULASAMMA v. SESHA REDD! (Bhagwati, J.) 269\n\nof a civil court or under an award where the terms of the gift, will A or other instrument or the decree, order or award prescribe a restncted estate in such property.\n\nThis provision is more in the nature of a proviso or exception to sub-section ( 1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi('). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bring- B ing about change in the social and economic position of WQmen in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (I). It cannot be interpreted in a manner which would rob sub-section ( 1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section ( 1). Tlle language of sub-section (2) is apparently wide to include acquisition of C property by a Hindu female under an i!lstrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property.\n\nBut that would virtually emasculate sub-section ( 1), for in that event, a D large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in most of such case's, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and E where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1).\n\nThe Explanation to sub-section (I) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because F there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property.\n\nThe social purpose of the law would be frustrated and the re(ormist zeal underlying the statutory provision would be chilled.\n\nThat surely could never have been the intention of the Legislature in enacting sub-sectfon (2). It is an elementary rule of G construction that no provision of a statute should be construed in isolation but it should be construed witb reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute.\n\nSub-section (2) must, therefore, be read in the context of sub-section ( 1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired H by a female Hindu for the first time as a grant without any pre-existing\n\n(1) (1970] 2 S.C.R. 95.\n\nright, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property.\n\nThis constructional approach finds support in the decision in Badri Prasad's case\n\n(supra) where this Court observed that sub-sectipn (2) \"can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property\". It may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corre'!Ponding to the present sub-section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes or acquisition were added so as to include acquisition of property under an instrument, decree, order or award.\n\nThis circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gilt or will.\n\nWhere, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.\n\nThis line of approach fn the construction of sub-section (2) of section 14 is amply borne out by the trend of judicial decisions in this Court.\n\nWe may in this connection refer to the decision in Badri Parasad's case (supra). The facts in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving five sons and a widow.\n\nOn August 3, 1950, one Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal.\n\nThe arbitrator made his award on December 31, 1950 and under clause 6 of the award, the widow was awarded certain properties and it was expressly stated in the award that she would have a widow's estate in the properties awarded to her.\n\nWhile the widow was in possession of the properties, the Act came into force and tne question arose whether on the coming into force of the Act, she became full owner of the properties under sub-section ( 1) or her estate in the properties remained a restricted one under sub-section (2) of section 14.\n\nThis Court held that although the award gave a restricted estate to the widow in the propertie's allotted to her, it was sub-section (1) which applied and not sub-section (2), because inter alia the properties given to her under the award were on the basis of a pre-existing right which she had as an heir ci her husband under the Hindu Women's Right to Property Act, 1937 and not as a new grant made for the first time.\n\nSo also in Nirmal Chand v. Vidya Wanti (dead) by her leJ?al representatives(1 ), there was a regular partition deed made on December 3, 1945 between Amin chand, a coparcener and\n\n(1) C.A. No. 609 of 1965, decided on January 21, 1969.\n\n• •\n\nv. TULASAMMA v. SESHA REDD! (Bhagwati, J.) 271\n\nSubhrai Bai, the widow of a deceased coparcener, under which a cer- A tain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have a life interest.\n\nSubhrai Bai died in 1957 subsequent to the coming into force of the Act after making a will bqueathing the property in favour of her daughter Vidyawati.\n\nThe right of Subhrai Bai to bequeath the property by will was challen- B ged on the ground that she had only a limited interest in the property and her case was covered by sub-section (2) and not sub-section (1).\n\nThis contention wa's negatived and it was held by this Court that though it was true that the instrument of partition prescribed only a limited interest for Subhrai Bai in the property, that was in reognition\n\nof the legal position which then prevailed and hence it did not bring her case within the exception contained in sub-section (2) of section C 14.\n\nThis Court observed :\n\n• \"If Subhrai Bai was entitled to a share in her husband's properties then the suit properties must be held to have been allotted to her in accordance with law.\n\nAs the law tlien stood she had only a life interest in the properties taken by her.\n\nTherefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position.\n\nHence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her life time. Therefore the trial court as well as the first Appellate Court were right in holding that the facts of the case do not fall withins. 14(2) of the Hindu Succession Act, 1955.\"\n\nIt will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only a limited interest to her in the property, this Court held\n\nthat the case fell within sub-section (1) and not sub-section (2). The reason obviously was that the property was given to Subhrai Bai in virtue of a pre-existing right inhering in her and when the instrument F of partition provided that s_he would only have a limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood. It is only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree, order or award giving the property prescribes the terms on which it is to be held by the Hindu female, namely, as a restricted owner, that sub-section (2) comes into G play arid excludes the applicability of sub-section (1).\n\nThe object of sub-section (2), as pointed out by this Court in Badri Persad' s case\n\n(supra) while quoting with approval the observations made by the Madras High COjllrt in Rangaswami Naicker v. Chi1111ammal('), is\n\n\"only to remove the disability of women imposed by law and not to interfere with ontraets, grants or decree etc. by virtue of which a woman's right was restricted\" and. therefore, where property is acquir- H ed by a Hindu female under the instrument in virtue of a pre-existing\n\n(I) A.LR. 1964 Mad. 387.\n\nright, such as a right to obtaiu property ou partitiou or a right to maiuteuauce aud uuder the law as it stood priqr to the enactmeut of the Act, she would have uo more thau limited interest iu the property, a provisiou iu the iustrumeut giviug her limited iuterst iu the property would be merely by way of record or recoguitiou of the true legal posi tiou aud the restrictiou ou her iuterest beiug a \"disability imposed by law\" would be wiped out aud her limited iuterest would be eularged uuder sub-'sectiou ( 1). But where property is acquired by a Hindu female uuder au iustrumeun for the first time without auy pre-existiug. right solely by virtue of the iustrumeut, she must hold it on the tenns ou which it is giveu to her aud if what is giveu to her is a restricted estate, it would uot be enlarged by reasou of sub-sectiou (2). The controversy before us, therefore, boils dowu to the narrow questiou whether in the present case the properties were acquired by .the apoe!- lant uuder the compromise iu virtue of a pre-existiug nght or !hey were acquired for the first time as a grant owing its origiu to the compromise alone aud to uothing else.\n\nNow, let us cousider how the properties iu questiou came to be acquired by the appellaut uuder the compromise.\n\nThe appellant claimed maiuteuauce out of the joiut family properties iu the hands 'of the r_espondeut who was her deceased husbaud's brother.\n\nThe claim was decreed iu favour of the appellaut aud iu execution of the decree for maiuteuance, the compromise was arrived at between the parties allotting the properties in question to the appellant for her maiutenance and giving her limited interest in such properties. Si nee the properties were allotted to the appellaut in lieu of her claim for maintenance, it becomes uecessary to consider the nature of the nght which a Hiudu widow has to be maintaiued out of joint family estate.\n\nIt fa settled law that a widow is entitled to maintenance out of her deceased husbaud's estate, irrespective whether that estate may be it< the hands of his male issue or it may be iu the hands of his coparceners.\n\nThe joint family estate in which her deceased husbaud had a share is liable for her maiutenauce and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai v. Shri Yadunanden Ram,( 1) her claim for maintenance is not a charge upon any joint family property uutil she has got her maintenauce determiued and made a specific charge either by agreement or a decree or order of a court, her right is \"not liable to be defeated except by transfer to a bona fide purchaser for value without uotice of her claim or even with uotice of the claim uu\\ess the transfer was made with the intention of defeating her riht\".\n\nThe widow can for the purpose of her maintenance follow the joint family property \"into the hands of any oue who takes it as a volunteer or with uotice of her having set up a claim for maintenance\".\n\nThe courts ha\\!\\! even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with uotice of her claim is not entitled to possession of that property without first securing proper m')ointeuance for her, vide Rachawa & Ors. v. Shiva:ranappa( 2 ) cited with approval iu Ranibai's case (supra). It is, therefore, clear\n\n(I) [19691 3 S.C.R. 789.\n\n(2) I.L.R. 18 Born. 679.\n\n' . ~\n\nv. TULASAMMA v. V. SESHA REDD! (Bhagwati, J.) 2 7 3\n\nthat under the Sastric Hindn Law a widow has a right to be maintained A out of joint family property and this right would ripen fufo' a' charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against ioint family property in the hands of a volunteer or a purchaser taking it with notice of her claim.\n\nThe right of the widow to be maintained is of course not a jus in rem, since it does not give B her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the joint family proprty. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.\n\nIt would not be a grant for the first time without any pre-existing right in the widow.\n\nThe widow would be getting the property in C virtue of . her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right and not making a grant of the property to her for the first time without any antecedent right or title.\n\nThere is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have D a limited interest, she would have no more than a limited interest in the property Ul)der the Hindu Jaw as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in. the property would be, to quote the word's of this Court in Nirmal Chand's case (snpra), \"merely recording the true legal position\" and that would not attract the applicability of sub-section (2) but would be governed by sub-section E ( 1) of section 14. The conclusion is, therefore, inescapable that where property is allotted to a. widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub-section (2) of section 14 would have no application in such a case. '\n\nWe firid that there are several High Courts which have taken F the same view which we are taking in the present case. We may mention only a few of those decisions, namely, B. B. Patil v. Gangabai(1), Sumeshwar Misra v. Swami Nath Tiwari,(2 ) Reddayya v. Varapula Venkataraju,(') Lakshmi Devi v. Shankar Jha(4), N. Venkanegouda\n\nv. Hanemangouda,(') Smf. Sharbati Devi v. Pt. Hiralal,( 6 ) Sesadhar Chandra Dev v. Smt. Tara Sundari Dasi,( 7 ) Saraswathi Ammal v.\n\nAnantha Shenoi( 8) and Kunji Thomman v. Meenakshi( 9). It is G\n\n(!)A.LR. (1972) Bom. 16\n\n(2) A.LR. (1970) Pat. 348.\n\n(3) A.LR. (1965) .A.P. 66\n\n(4) A.LR. (1967) Mad. 429.\n\n(5) A.LR. (1972) Mys. 286.\n\n(6) A.LR. (1964) Pub. 114.\n\n(7) A.LR. (1962) cal. 438.\n\n(8) A.LR. (1966) Ker. 56.\n\n(9) I.L.R. (1970) 2 Ker. 45,\n\n3- 436SCI/77\n\nA not necessary to refer to these decisions since we have ourselves discussed the question of construction of sub-sections (1) and (2) of section 14 on Principle and pointed out what in our view is the correct construction of these provisions. We may only mention that _:,,. the judgment of Palekar, J., as he then was, in B. B. Patil v. Gangabai (supra) is a well reasoned iudgment and it has our full approval. • B The contrary view taken in Gurunadham v. Sundarajulu,(') Santhanam v. Subramania,(2) S. Kachapalava Gurukkal v. V. Subramania Gurukkal( 3 ), Shiva Pujan Rai v. Jamuna Missir,( 4 ) Gopisetti Kondaiah v. Gunda Subbarayudu('), Ram Jag Misir v. The Director of Consolidation, U.P.(\") and Ajab Singh v. Ram Singh ( 7) does not, in our opinion, represent the correct law on the subject and these cases must be held to be wrongly decided. c In the circumstances, we reach the conclusion that since in the present case the properties in question were acquired by the appellant under the compromise in lieu or satisfaction of her right of maintenance, it is sub-section (1) and not sub-section (2) of section 14\n\nwhich would be applicable and hence the appellant must be deemed to have become full owner of the properties notwithstanding that the compromise prescribed a limited interest for her in his properties.\n\nWe accordingly allow the appeal, set aside the judgment and decree of the High Court and restore that of the District Judge, Nellore.\n\nThe result is that the suit will stand dismissed but with no order as to costs. !\"::\n\nFAzAL ALI, J.\n\nThis is a defendant's appeal by special leave against E the judgment of the High Court of Andhra Pradesh dated November 22, 1967 and arises in the following circumstances.\n\nVenkatasubba Reddy, husband of appellant No. 1 Vaddeboyina .,\n\nTulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the year 1931 in a state of jointness with his step brother V. Sesha Reddy and left behind Tulasamma as his widow. On October 11, 1944 the\n\nF appellant Tulasamma filed a petition for mainteruii:ice in forma\n\npauperis against the respondent in the Court of the District Munsif, Nellore. This application 'Was set e:xi parte on January 13, 1945 but subsequently thtition was registered as a suit and an ex parte decree was pass against the rndent on June 29, l 946. On October 1, 1946 the respondent fil an interlocutory application for recording a compromise alleged to have been arrived at between the\n\nG parties out of Court on April 9, 1945. The appellant Tulasamma • opposed this application which was ultimately dismissed on October 16, 1946. An appeal filed by the respondent to the District Judge, Nellore was also dismissed. Thereafter Tulasamma put the decree in --- (I) I.L.R. (1968) 1 Mad. 487.\n\n(2) I.L.R. (1%7) 1 Mad. 68.\n\n(3) A.I.R. (1972) Mad. 279.\n\n(4) I.L.R. (1947) Pat. 1118.\n\n(5) I.L.R. (1968) A.P. 621.\n\n(6) A.I.R. (1975) All. 151.\n\n(7) A.1.R. (1969) J & K 9!\n\nexecution and at the execution stage the parties appear to have arrived A. at a settlement out of Court which was certified by the Executing Court on July 30, 1949 under O. XXI r. 2 of the Code of Civil Procedure. Under the compromise the appellant Tulasamma was allotted the. Schedule properties, but was to enjoy only a limited interest therein with no power of alienation at all. According to the tenns of the compromise the properties were to revert to the plaintiff after the death of Tulasamma. Subsequently Tulasamma continued to remain R in possession of th<:l properties even after coming into force of the Hindu Succession Act, 1956-hereinafter to be referred to as 'the 1956 Act, or 'the Act of 1956'. By two registered deeds dated April 12, 1960 and May 26, 1961, the appellant leased out some of the properties to defendants 2 & 3 by the first deed and sold some of the properties to defendant 4 by the second deed.\n\nThe plaintiff/resIJondent filed a suit on July 31, 1961 before the District Munsiff, Nellore C for a declaration that the alienation made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the life-time of the widow. The basis of the action; filed by the plaintiff was that as the appellant Tulasamma had got a restricted estate only under the tenns of the compromise her interest could not be enlarged into an absolute interest by the provisions of the 1956 Act in view of s. 14(2) of the said Act. The suit was contested by the appellant D Tulasamma who denied the allegations made in the plaint and averred that by virtue of the provisions of thf11956 Act she had become the full owner of the prOperties with absolute right of alienation and the respondent had no locus standi to file the present suit. The learned Munsiff decreed the suit of the plaintiff holding that the appell1mt Tulasan1ma got merely a limited interest in the properties which could be enjoyed during her lifetime and that the alienations were not bind- E ing on the reversioner.\n\nTulasamma then filed an appeal before the District Judge Nellore, who reversed the finding of the Trial Court, allowed the appeal and dismissed the plaintiff's snit holding that the appellant Tulasamma had acquired an absolute interest in the properties by virtne of the provisions 0£ the 1956 Act. The learned Judge further held that sub-s. (2) of s. 14 had no application to the present case, because the compromise was an instrument iu recognition of a F pre-existing right. The plaintiff/respandent went up in second appeal to the High Court against the judgment of the District Judge.\n\nThe plea of the plaintiff/respondent appears to have found favour with the High Court which held that the case of the appellant was clearly covered by s. 14 (2) of the Hindu Succession Act and as the compromise was an instrument as contemplated bys. 14(2) of the 1956 Act Tulasamma could not get an absolute interest under s. 14(1) of the G Act. The High Court further held that by virtue 0£ the compromise the appellant Tufasamma got title to the properties for the first time and it was not a question of recognising a pre-existing right which she had none in view of the fact that her husband had died even before the Hindu Women's Right to Property Act, 1937. We might further add that the facts narrated above have not been disputed by counsel for the parties.\n\nThe appeal has been argued only on the snbtantial questions of law which tum upon the interpretation of sub-ss. (1) & (2) of s. 14\n\nof the Hindn Succession Act, 1956. It is common ground that in this case as also in the other connected appeals, the properties in suit were allotted under a compromise or an instrument in lieu of maintenance.\n\nIt is also admitted that the appellant Tulasamma was in possession of the properties at the time when the 1956 Act came into force. Finally it is also not disputed that the compromise did purport to confer only a limited interest on the widow restricting completely her power of alienation.\n\nWe have now to apply the law on the facts mentioned above.\n\nSimilar points were involved in the other two appeals Nos. 135 of 1973 and 126 of 1972.\n\nWe have heard all the three appeals together and in all these appeals counsel for the parti.es have confined their arguments only to the questions of law without disputing the findings of fact arrived at by the Courts below.\n\nThus the two points that fall for determination in this appeal may be stated thus :\n\n( 1) whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the 1956 Act in lieu of maintenance falls within s. 14(1) or is covered by s. 14(2) of the 1956, Act and\n\n(2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a preexisting right or a conferment of new title so as to fall squarely within s. 14(2) of the 1956 Act.\n\nThere appears to be serious divergence of iudicial opinion on the subject and the High Courts have taken contrary views on this point.\n\nSome High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would on\\y be recognition of a pre-existing right and would not confer any new title on the window. Following this line of reasoning the aforesaid High Courts have held that the properties allotted to the Hindu widow even though they conferred a limited interest would fall clearly within !he ambit of s. 14(1) of the 1956 Act by virtue o~ which the limited interest would be enlarged inio an absolute interest on the coming into force of the 1956 Act. On the other hand the Orissa, Allahabad, Madras and Andhra Pradesh High Courts have tak; en a contrary view and have held that as the Hindu widow's right tQ maintenance is not a right to property, property allotted to her in lieu of maintenance confers on her a right or title to the property for 'the first time and therefore such conferment is protected bys. 14(2) of 'the 1956 Act and is not covered bys. 14(1). Unfortunately, howeer, there is no decision of this Court which is directly in point, though there are some decisions which tend to support the view taken by\n\n1the Bombay High Court.\n\n.. >.-\n\nv. TULASAMMA v. v. SESHA REDDI (Fazal Ali, !.) 2 7 7\n\nBefore, however, resolving this important dispute it may be necessary to consider the real legal nature of the incident of a Hindu widow's right to maintenance. In order to determine this factor we have to look to the concept of a ffindu marriage. Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament-a religious ceremony which results in a sacred and a holy union of man and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the! body of the husband. To-a Hindu wife her husband is her God and her life becomes one of selfless service and unstinted devotion and profound dedication to her husband.\n\nShe not only shares the life and love the joys and sorrows, the troubles and tribulations of her husband but becomes an integral part of her husband's life and activities. Colebrooke in his book 'Digest of Hindu Law' Vol. II describeS'th~ status of wife at p. 158 thus:\n\n\"A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts; whether she ascend \"the pile after him, or survive for the benefit of her husband, she is a faithful wife.\"\n\nThis being the position after marriage, it is manifest that the law enjoins a corresponding duty on the husband to maintain his wife and look after her comforts and to provide her food and raiments. It is\n\nwell settled that under the ffindu1Law the husband has got a personal obligation to maintain his wife and if he is possessed of properties R then his wife is entitled as of right to be maintained out of such properties. The claim of a Hindu widow to be maintained is not an empty formality which is to be .exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband and wife. As the wife is in a serue a part of the body of her husband, she becomes co-owner of the proPerty of her husband p though in a subordinate sense.\n\nAlthough the right of maintenance does not per se create a legal charge on the proPerty of her husband, yet the wife can enforce this right by moving the Court for passing a decree for maintenance by creating a charge. This right is available only so long as the wife continues to be chaste. Thus the position is that the right of maintenance may amount to a legal charge if such a , charge is created either by anl agreement between t.he parties or by G decree.\n\nThere are a number of authorities which have taken the view that even if the property is transferred and the tramferee takes the property with notice of the right of the widow to be maintained out of the pro- H perty, the purchaser takes the obligation to maintain the widow out of the property purchased and the wife or. w!dow can follow the proerty in the hands of the purchaser for the limited purpose of her maintenance. We shall, however, deal with these authorities a little later.\n\nA Colebrooke in his 'Digest of Hindu L, iw', Vol. II, quotes the Mahabharata at p. 121 thus : _ .\n\n\"Where females are honoured, there the deities are pleased; but where they are unhonoirred, there all religious acts become fruitless.\" .\n\nB This clearly illustrates the high position which is bestoweil on ; Hindu . women, by the Shastric Law. Again Colebfooke in his book Vol. II at p. 123, while describing the circumstances under which the maintenance is to be given to the wife, quotes Manu thus :\n\n\"MANU :--Should a man have bnsiness abroad, Jet him assure a fit maintenance to his wife, and then reside for a time in a foreign country; since a wife, even thouglt virtuous, may be tempted to act amiss, if she be distressed by want of subsistence : ·\n\nWhile her husband, having settled her maintenance, resides abroad, let her continue firm in religious austerities; but if he leave no support, Jet her subsist by spinning and other blameless arts.\"\n\nThis extract clearly shows that there is a legal obligation on the part of the husband to make arrangements for his wife's due maintenance even if he goes abroad for business purposes.\n\nColebrooke again quotes Yajnawalkya at p. 243 of his book Vol. thus:\n\n\"When the father makes an equal partition among his .sons, his wives must have equal shares with them, if they have received no wealth either from their lord or from his father.\n\nIf he makes an equal partition among his sons by his own choice, he must give equal shares to such of his wives also_ as bavenomaJe issue.'~- ' . _\n\nF. This shows that when a partition is effected, the Hindu Law enjoins that the wife must get an equal share with the sons, thus reinforcing the important character of the right of maintenance which a Hindu wife or widow pOJSesses undet the Hindu Law. . ·.\n\nSimilarly Gopalchandra Sarkiir Sastri dealing with the nature and incidents of the Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus : ·\n\n\"When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon, his property, this charge being a legal incident of her marital coownership in all her husband's property ...... But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same. . . . . . . . . There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the courts appear to hold,\n\n. ----\n\nv. TULASAMMA v. v. ~ESHA REDD! (Fazal Ali, !.) 2 79\n\nin consequence o! the proper materials not being placed be- A fore them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree.\"\n\nThe view of the author appears to be that .the Courts hold that the right of maintenance of a widow does not amount to a legal charge and B this is so because proper materials werenot placed before the Courts.\n\nIn other words, the author seems to indicate that the original Hindu Law contained clear provisions that the right of, maintenance amounts to a charge on tj:ie property of her husband and the obligation runs with the property so that any person who inherits the property also takes upon the obligation to maintain the widow.\n\nSastri quotes from the original texts various extracts regarding the nature and extent o~ C the right of maintenance of the Hindu women some of which may be extracted thus :\n\n\"The support of the group of persons who should be maintained, is the approved means of attaining heaven, but hell is the man's portion if they suffer; therefore he should carefully maintain them. D\n\nThe father, the mother, the Guru (an elderly relation worthy of respect), a wife, an offspring, poor dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained.-Manu, cited in Snkrishna's commentary on the Dayabhaga, ii, 23.\n\nIt is declared by' Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds,-Manu cited in the Mitakshara while dealing with gifts.\"\n\nThe last extract clearly shows the imperative nature of the duty imposed on the owner of the property to maintain wife, aged mother, father etc. even at the cost of perpetrating a hundred misdeeds. ·\n\nSimilarly Sastri in his book quotes Yajnavalkya at p. 523 thus\n\n\"Property other than what is required for the maintenance of the family may be given.\"'\n\nThe learned author highlights the importance of the right of maintenance as being a charge on the property of the \\husband and observes as follows :\n\n\"The ancestral immovable property is the hereditary source of maintenance of the members of the family, and the\n\nsame is charged with the liability of supporting its members, H all of whom acquire a right to such property from the moment they become members of the family, by virtue of which they are at least entitled to maintenance out of the same. Such\n\n•, property cannot be sold or given away except for the support of the family; a small portion of the same may be alien- . ated, if not incompatible with the support of the family.\n\nThere &s no difference between the two schools as regards the view that the ancestral property is charged with the maintenance of the members of the family, and that no alienation can be made, which will 'prejudicially affect the support of the group of persons who ought to be maintained.\n\nHence heirs are bound to maintain those whom the last holder Was bound to maintain.\"\n\nThe author further points out that under the Mitakshara law the <laugher-in-law does, with her husband, acquire a right to the ancestral property, since her marriage, but, she becomes her husband's co-owner in a subordinate sense, and the principal legal incident of this ownership is the right to maintenance, which cannot be defeated by gift or devise made by the holder of such property, Similar observations have been made by the learned author at p. 528 of the book which may ~- extracted thus : '\n\n\"According to both the schools, the lawfully wedded. wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any property that may. subsequently be acquired by him, so that she becomes a co-owner of the husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or life long tutelege or dependence.\n\nThis right of the wife to maintenance from her husband is not lost even if the husband renounce Hinduism.\n\nF This right subsists even after the husband's death al-. though her husband's right as distinguished from hers Illl!Y pass by suvivorship or by succession to. sons or even to collaterals; these simply step into the position of her husband, and she is required by Hindu law to live under their guardianship after her husband's death.\"\n\nG Finally it is pointed out by the . learned author at p. 529 of the Book that the right which a woman acquires to her husband's property subsists even after his death and observed thus :\n\n\"According to both the schools, the right which a woman acquires to her husband's property subsists after his death, whether his interest passes by succession or by survivorship to the male issue or any other person, and that this right does not depend upon the widow's not possessing other means of support.\"\n\n.~·\n\nSummarising the nature of the liability of the husband to maintain his wife, the learned author observed as follows at p. 533 of his Book :\n\n\"When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge /upon his property, this charge being a legal incident of her marital co-0wnership in all her husband's property. . . . . . . . But after 'his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same ......... There cannot be any doubt that under Hindu law the Wife's or widow's maintenance is a legal charge on the husband's estate; but ilie Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree.\"\n\nTo sump up, therefore, according to Sastri's interpretation of D Shast1ic Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband's property though in a subordinate sense, i.e. the wife has no dominion over the property.\n\nSimilarly Mayne in his \"Treatise on Hindu Law & Usage\", 11th Edn., has traced the history and origin of the right of maintenance of a Hindu woman which according to him arises from the theory of an undivided family where the head bf the family, is bound to maintain the members including their wives and their children.\n\nThe. learned author observes thus : (p. 813).\n\n\"The importance and extent of the right of maintenance necessarily arises from the theory of au undivided family.\n\nThe head of such a family is bound to maintain its members, their wives and their Children, to perform their ceremonies and to defray the expenses of their marriages;\"\n\nAgain at p. 816 para 684 the author stresses the fact that the G maintenance of a wife is a matter of personal obligation on the part of the husband and observes thus :\n\n\"The maintenance of a wife, aged parents and a minor son is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession of any property, ancestral or acquired. . . . . . . .\n\nH 'It is declared by Mann that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds.\"\n\n. ___ ...)--\n\nAgain it has been observed at p. 818 para 687\n\n\"The maintenance of a wife by her husband is, of course, a matter of personal obligation, which attaches from the moment of marriage.\" ·\n\n• The author points out at p. 821 paragraph 689 that even after the comig into force of the Hindu Women's Right to Property Act, 1937 which confers upon the widow a right of succession in respect of the non-agricultural property, she is still entitled to maintenance from the family property.\n\nThe author observes thus :\n\n''It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone.\n\nIt was accordingly held that the widow of a deceased coparcener is still entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate.\"\n\nFurthermore, the anthor cites the passage of Narada cited in Smriti Chandrika regarding which there is no dispute.\n\nThe saying runs thus :\n\n\"Whichever wife (patni) becomes a widow and continues virtuous, she is entitled to be provided with food and raiment.\"\n\nAt p. 822 para 690 the author points out that the right of a widow to be maintained is taken over even by the heirs of the husband who succeed to his property either by inheritance or by survivorship. In this connection the following observations are made :\n\n\"She is entitled to be maintained where her husband's separate property is taken by his male issue.\n\nWhere, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband's share by survivorship,\"\n\nThe Hindu law is so jealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu wbinen falls even on the King when he takes the estate by escheat or by forfeiture,\n\nSimilarly Mulla in his book \"Hindu Law\", 14th Edu., describes the incidents and characteristics of Hindu wife's right to maintenance 'G and observes thus at p. 597 :\n\n\"A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style.\n\nThe maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite indepeudent of the possession by the husband of any property, ancestral or selfacquired.\"\n\nWe might further mention that the Hindu women's right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 19~6-hereinafter to be referred to as 'the Act of 1946'-which came into force on April 23,\n\n1946. Thus there appea1s to be complete unanimity of the various\n\nchools of Hindu law on the important incidents and indicia of the Hindu women's right to maintenance which lras now received statutory recognition and which only shows that the right to maintenance though not an indefeasible right to property is undoubtedly a pre-existing right. We shall now refer to some of the authorities which have dealt with thiJ aspect of the matter.\n\nIn Narayan Rao Ramchandra Pant v. Ramabai('), the Judicial Committee pointed out that the widow's right to maintenance arises from the common 1'aw which developed from time to time.\n\nJustice West of the Bombay High Court appears to have entered into a very elaborate discussion of the entire law on the subject in Lakshman Ramchandra Joshi and Anr. v. Satyabhamabai(\") and observed as follows:\n\n\"These several authorities, no doubt, afford, in combination, a strong support to the proposition that a widow's maintenance, especially as against the sons, the a charge on the estate, a right in re in the fullest sense adhering to the property, into whatever !rands it may pass.\"\n\nThese observations were reiterated in a later case in Narbadabai v, Mahadeo Narayan, Kashinath Narayan and Shamabai( 3). The observations of West J., in Lakshman Ramchandra Joshi and Anr's case\n\n(supra) were fully 'approved by the Judicial Committee in Mst. Dan Kuer v. Mst. Sar/a Devi('), where it was observed :\n\n\"Rut, apart from this circumstance, the judgment of West J., whose dissertations on Hindu Law must always command great esteem, contains an exposition of the law on this point, and the rose is therefore rightly regarded as a leading authority on the question. In the course of his judgment that learned judge quotes with approval the remark~ of Phear J., in Srimati Bhagabati v. Kanailal Mitter-(1872) 8 Ben.\n\nL.R. 225-that \"as against one who lras taken the property as heir, the widow has a right to have a proper sum for her maintenance ascertained and made a charge on the property in his hands. She may 'also, doubtless, follow the property for this purpose into the hands of anyone who takes it as a volunteer, or with notice of her having set up a claim for maintenance against the heir\" and that \"when the property\n\n(1) L.R. 6 I.A. 114.\n\n(2) l.L.R. 2 Born. 494.\n\n(3) I.L.R. 5 Born. 99.\n\n(4) L.R. 73 I.A. 208.\n\npassed into the hands of a bona fide pnrchaser without notice, it cannot be affected by anything short of an already existing proprietary right; it cannot be subject to that which is not already a specific charge, or which does not contain all the clements necessary for its ripening into a specific charge.\" .\n\nSummarising the entire position the Privy Council enunciated the law thus:\n\n\"The true rule of Hindu law in such matters would appear to be as follows : Two obligations confront a joint Hindu family. (!) The obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation \"to provide maintenance to the widows of the family.\" The latter obligation would, under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is created on specific property of the fumily either by agreement or a decree of the court; that, so long as neither of these two obligations has taken the form of a charge on the family property, the obligation to pay the binding debts will have precedence (as, for instance, in the course of the administration of the estate) over mere claims of a female member's maintenance, but, if either of these two obligations assumes the shape of a charge, it would tab precedence over the other.\"\n\nIn Pratapmull Aga1Wal/a v. Dhanabati Bibi,(') the Judicial Committee pointed out that while a mother may not be the owner of her share until partition is made and has no pre-exi.Sting right with regard to the share in the property, but she has a pre-existing right for maintenance.\n\nThis Court also has made similar observations in a large number of cases regarding the nature and extent of the Hindu women's right to maintenance.\n\nIn Rani Bai v. Shi Yadunandan Ram & A nr, (') this Court, while dealing with a situation where a widow claimed the right of maintenance but refused to hand over possession of the property until she secured her proper maintenance, observed as follows :\n\n\"It cannot be disputed that the appellant who is the widow of a pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not re-marry out of the estate of her father-in-Jaw. Although her claim for maintenance was not a charge upon the estate until it had been fixed and specificaily charged thereupon her right was not liable to be defeated except by transfer to a bona fide purchaser for value without notice of a claim or even with notice of 'l claim unless the transfer was made wiith the intention of defeating her right.\n\nThe courts in India have taken the view that where a widow is in posse,; sion of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to\n\n(I) L.R. 63 I.A. 33.\n\n\nV. TULASAMMA v. v. SESHA REDDI (Fazal Ali, J.) 285\n\npossession of that property without first securing proper maintenance for her : [vide Rachawa & others v. Shivayogappa-I. L. R. 18 Born. 679] ...... In the present case it is difficult to understand how the appellant could be deprived of the possession of properties by a trespasser.\n\nMoreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties.\"\n\nIn Sheo Dyal Tewaree v. Judoonath Tewaree,(') the Calcutta ltigh\n\nCourt stressed the fact that although the widow may not be the owner of a share but she had a pre-existing right of maintenance.\n\nElucidating the nature and extent of a right of a Hindu wife to maintenance, the Calcutta High Court pointed out in Sinath Das v.\n\nProbodh ChulU!er Das(') than the right of maintenance is really identified with the husband's property right though of a subordinate nature.\n\nIn Hemangini Dasi v. Kedarnath Kundu Chowdhury( 3 ) the Privy Council held that if the estate remained joint and undivided the maintenance of the mother remained a charge on the whole estate and that any share that the widow took in the property which was equal to ihe share of a son was really in lieu of maintenance for which the e5tate was liable.\n\nThe position has been very succinctly stated and meticulously analysed by a decision of the Madras High Court in K. V. _Thangavelu v. The Court of Wards, Madras,(') where, dealing with the entire history of the matter and relying on various original texts of the Hindu jurists, the Madras High Court pointed out that a cogent ground for preferring the widow's claim is to be found in her qualified or subordinate co-ownership in the husband's property declared by the Mitakshara.\n\nThe Court referred to verse 52 of Vyavaharadhaya (chapter II) where the Mitakshara refers to Afjastamba's Dharmasutra as follows :\n\n\"From marriage arises also jointness ( sahatwam) in the holding of property ( dravyaparagraphestiu) .\"\n\nIn an earlier case Sarojnidevi v. Subrahmanyam,(5 ) the Madras High Court held that even after the coming into force of the Hindu Women's Right to Property Act, 1937, which did not apply to G agricultural lands, the right of the Hindu widow to maintenance\n\n~ stood in tact and the widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultnral part of the family estate.\n\nTo the same effect is an earlier decision\n\n(1) (1868) 9 W.R. 61.\n\n(2) 11 C.L.J. 580.\n\n(3) I.L.R. 16 cal. 768.\n\n(4) (1946) 2 M.L.J. 143.\n\n(5) I.L.R. 1945 Mad. 61.\n\nof the Madras High Court in Jayanti Subbiah v.\n\nAlamelu Mangamma(') where the High Court pointed out that under the Hindu Law the maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of her relationship and quite independent of the possession by the husband of any property ancestral or self-acquired.\n\nWe fully agree with this exposition of the law which is supported by a large number of authorities as discussed above.\n\nIn Yella'wa v. Bhimangavda(2), the Bombay High Court was of the view that even the heir of the husband's property could not be allowed to recover possession from the widow without first making proper arrangements for her maintenance. This case was approved by this Court in Rani Bai's case (supra).\n\nThus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the Incidents\n\nand characteristics of a Hindu woman's right to maintenance :\n\n(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the propertv carries with it the legal obligation to maintain the widow;\n\n(2) though the widow's right to maintenance is not a right to property but it is undoubtedly pre-existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the nroperty either by an agreement or by obtaining a decree from the civil court;\n\n(3) that the right of maintenance is a matter of moment and is of such importance that even if the ioint property is sold and the purchaser ha' notice of the widow's right to maintenance, the purcha, er is legally bound to provide for her maintenance;\n\n( 4) that the ri!!ht to maintenance is undouhte<llv a preexisting right which existed in the Hindu l, aw long before the passing of the Act of 1937 or •he Act of 1946, and is, therefore, a pre-existing right;\n\n( 5) that the right to maintenance flows from the wcial\n\nand temporal relationshin between the hu•band and the wife by virtue of which the wife becomes a sort\n\n(1) I.L.R. 27 Mad. 45.\n\n(2) I.L.R. 18 Bom. 452.\n\n......\n\n~ '\n\nof co-owner in the property of her husband, though A her co-ownership is of a subordinate nature; and\n\n(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements B for her maintenance.\n\nWith this preface regarding. a Hindu woman's right to maintenance and the necessary concomitants and incidents of those rights, we now proceed to determine the question of law that arises for consideration in this appeal. Before taking up that question, I might trace the historical growth of the legislation introducing slow and c gradual changes in the Shastric Hindu Law from time to time. The exact origm of Hindu Law is steeped and shrOjUded in antiquity and, therefore, it is not possible to determine the ethics or justification for assigning a somewhat subordinate position to a Hindu woman in matters of inheritance, marriage and the nature of the Iimitep interest which she took even after inheriting her husband's property. It is also strange that the Hindu Law made no provision for divorce at all.\n\nD This may be due to the fact that during the time of Manu and Yajnavalkya the structure of the Hindu society was quite different and there being no social problem of the magnitude that we have today, it was not considered necessary to break up the integrity and solidarity of a Hindu family by allowing ownership rights to the Hindu females.\n\nAnother object may have been to retain the famjly property within the family in order to consolidate the gains which a E particular family may have made.\n\nHowever, these are matters of speculation.\n\nBut one thing is clear, namely, that the Hindu jurists were very particular in making stringent provisions safeguarding the maintenance of the Hindu females either by the husband or even by his heirs after his death. Perhaps they thought that the property which a widow may receive in lieu of maintenance or the expenses which may be incurred for her maintenance would be a good substi- F tute for the share which she might inherit in her husbfod's property.\n\nNevertheless, t!)e Legislature appears to have stepped in from time to time to soften the rigours of the personal law of Hindus by adding new heirs, conferring new rights on Hindu femafes and making express provisions for adoption, maintenance etc. It appears that the question of conferring absolute interest on the Hiridu female had engaged the attention of the Legislature ever since 1941 but G the idea took a tangible shape only in 1954 when the Hindu Succession Bill was introduced and eventually passed in 1956. This Bill was preceded by a Hindu Code Committee headed by Mr. B. N.\n\nRan who had made a number of recommendations which formed the basis of the 1956 Act.\n\nAfter the attainment of independence, the entire perspective H changed, the nature of old human values assumed a new complexion and the need for emancipation of womanhood from feudal bondage became all the more iniperative. Under the strain and stress of\n\nsocio-economic conditions and a continuous agitation by the female Hindus for enlargement of their rights a new look to the rights of women as provided by. the Shastric Hindu Law had to be given. I.n pursuance of these social pressures, it was necessary to set up a new social order where the women should be given a place of honour and equality with the male sex in every other respect. This was the prime need of the hour and the temper of the times dictated the imperative necessity of making revolutionary changes in the Hindu Law in order to abolish the invidious distinction in matters of inheritance between a male and a female.\n\nSimilarly it was realised that there should be express provision for divorce on certain specified grounds inasmuch as the absence of such a provision had perpetrated a serious injustice to the Hindu females for a long time. It seems to me that it was with this object in view that the Legir; lature of our free country thought it as its primary duty to bring forth legislation to remove the dangerous anomalies appearing in the Hindu taw.\n\nEven during the British times, there were certain legislation modifying certain provisions of the Hindu Law, e.g., the Hindu Law Inheritance Act which added a few more heirs including some females; the Hindu Women's Right to Property Act, 193 7, which provided that on partition a widow would be entitled to the same share as the sons in the property of her husband.\n\nThe Act of 1937, while giving a share to the wife on partition had not disturbed her right to claim maintenance which was preserved in tact and although she was not permitted to sue for partition she was undoubtedly entiled to sue for maintenance without having recourse to the remedy of partition. After independence the Parliament passed the Hindu Minority and Guardianship Act, 1956; the Hindu Adoptions and Maintenance Act, 1956; the Hindu Marriage Act, 1956 which regulated the law of marriage and divorce and ultimately the Hindu Succession Act, 1956 which provided for intestate succession. The Hindu Succession Act, 1956 was, therefore, undoubtedly a piece of social legislation which fulfilled a long felt need of the nation and was widely acclaimed by the entire people as would appear from the debates which preceded the passing of the Act.\n\nIt is in the light of these circumstances that we have now to interpret the provisions of s. 14(1) & (2) of the Act of 1956. Section 14 of the 1956 Act runs thus :\n\n\"14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.\n\nExplanation.-In: this uh-section, \"property\" includes both movable and immovable property acquirect by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any per$on, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase\n\nor by prescription, or in any other manner whatsoever, and A also an.y such property held by her as stridhana immediately before the c.ommencement of this Act.\n\n(2) Nothing contained in sub-section ( 1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the {erms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.\"\n\nThis Court has interpreted the scope and ambit of s. 14(1) and the Explanation thereto on several occasions and has pointed out that\n\nthe object of the legislation was to make revolutionary and far-reaching changes in the entire structure of the Hindu society. The word \"pas- C sessed\" used in s. 14(1) has also been interpreted by this Court and it has been hdd that the word has been used in a very wide sense so as to 1lldde the st•ate of owning or having the property in one's power and it is not necessary for the application of s. 14( 1) that a Hindu woman should be in actual or physical possession of the property. It is sufficient if she bas a right to the property and the said property is in her power or domain. In S. S. Munnalal v. S. S. Rajkumar(') it was D held that mere declaration of the share of the widow passed only an of her share under a preliminary decree would fall within the ambit of s. 14(1) and even though the widow did not get actual possession of the property until a final decree is passed she would in law be deemed to be in possession of the proper, ty.\n\nIn that case, the High Court had lteld that mere declaration of the share of the widow passed only an inchoate interest to her and she never came to possess the share within E the meaning of s. 14 of the Act and therefore the property remained joint family property.\n\nThis G, ourt reversed the judgment of the High Court holding that once a preliminary decree was passed in favour of the widow granting her a share in the property she must be deemed to be in possession of the property in question. Their Lordships emphasised that the words \"possessed b'y\" used in s. 14(1) clearly indiCllted that such a situation was envisaged by the Legislature. While F interpreting the provisions of s. 14 the Court also pointed out that the 1956 Act was a codifying enactment which had made far-reaching changes in the structure of the Hindu society aiid the object was to sweep away traditional limitations placed on the rights of the Hindu women.\n\nJn this connection, the Court observed as follows :\n\n\"The Act is a codifying enactment, and has made far- G reaching changes in the structure of the Hindu law of inheritance, and succession.\n\nThe Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate .......... .\n\nNormally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing H in the context in which s. 14 occurs or in the phraseology\n\n(1) [1962] Supp. 3 S.C.R. 418.\n\n4-436SCI/77\n\nused by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of s. 14. In the light of the scheme of the Act and its evolved purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property.\n\nEarlier the Court observed in that very case as under :\n\n\"By s. 14 ( 1) the Legislature sought to convert the interest of a Hindu fell1'ale which under the Sastric Hindu Jaw would have been regarded as a limited interest into an absolute interest •and by the explanation thereto gave to the expression \"property\" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenanse, or by gift from any person, whether a relative or not, before, at or after her marriage or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By s. 14(1) manifestly it is intended to conve.rt the interest which a Hindu female bas in property however restricted \"the nature of that interest under the Sastric Hindu law may be into absolute estate.\"\n\nThe matter was again considered by this Court in Eramma v. Verrupan1111 (') where it was held that before a widow can get absolute interest under s. 14 (1) she must have some vestige of title, i.e. her possession must be under some title or right and not be that of a rank trespasser. In this connection the Court observed as follows :\n\n\"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to s. 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu ha' acquired some k; nd of title however. restricted the nature of her interest may be .......... It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title.' It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any tfrle on a mere trespasser.\n\nJn other words. the provisions of s. 14( I) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property _of the last\n\n\nmale holder on the date of the commencement of the Act A when she is only a trespasser without any right to property.\"\n\nJn Mangat Singh v. Smt. Rattio(') a widow came into possession of her husband's property in 1917 and continued to be in possession <>f the same till 1954 when she was dispossessed by a collateral of her husband under the orders of the Re, venue authorities. She filed a suit for recovery of possession and during the pendency of the suit the Act of 1956 came into force.\n\nThis Court upholding the judgment of the High Court held that the dispossession of the widow being illegal, she must be deemed to be, in the eye of law, to continue in possession of the properties and acquired an absolute mterest with the coming into force of the Act of 1956. It was not a case where a Hindu female had parted with her right so as to place herself in a position where she could in no manner exercise her rights iri that property any longer when the Act came into force.\n\nThis Court observed as follows :\n\n\"It is signifiC'ant that the Legislature begins s. 14 ( 1) with the words \"any property possessed by a female Hindu\" and not \"any property in possession of a female Hindu.\" If the expression used had been \"in possession of\" instead of\n\n\"possessed by'', the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession.\n\nThe constructive possession may be through a lessee, mortgagee, licensee, etc.\n\nThe use of the expression \"possessed by\" instead of the expression \"in possession of\", in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by 'a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession.\"\n\n\"It appears to us that the expression used ins. 14(1) of the Act was intended to cover cases of possession in law also. where lands may have descended to a female Hindu and she hoas not actually entered into them. It would of course cover the other cases of actual or constructive possession. On the language of s. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual physical or constructive possession of that property.\" • Again, while referring to an earlier case, namely, Eramma v.\n\nVerrupanna (supra), the Court clarified the position Thus :\n\n\"This case also, thus, clarifies that the . expression \"'possessed by\" is not intended to apply to a case of mere possession without title, and that the legislature intended this J?rDVision far caes where the Hindu female possesses H _ ___t!l.\"_nght of owqership of the property in question.\n\nEven\n\n(1) [19671 3 s.c.R. 454.\n\nmere physical possession of the property without the right of ownership will not attract the provisions of this section.\n\nThis case, also, thus, supports our view that the expression\n\n\"possessed by\" was used in the sense of connoting state of ownership and, while the Hindu female possesses the right of ownership, _she would become full owner if the other conditions mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights\n\nof ownership in that property any longer.\"\n\nIn Sukhram & Anr. v. Gauri Shanker & Another(') the facts were as follows :\n\nHukam Singh and Sukh Ram were two brothers. Chidda, the second appellant was the son. of Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint Hindu family governed by the Benares Sch_ool of Mitakshara Law.\n\nHukam Singh died in 1952 leaving behind his widow Krishna Devi. On December 15, 1956, Krishna Devi sold half share of the house belonging to the joint family.\n\nThis sale was challenged by the other members of the joint family on the gronnd that Krishna Devi had merely a life interest. The question raised was whether Krishna Devi acquired an absolute interest in the properties after coming into force of the Hindu Succession Act, 1956. [t was argued before this Court that according to the Benaras School, a male coparcener was not entitled to alienate even for value his undivided interest in the coparcenary without the consent of other coparccners and, therefore, Krishna Devi could not have higher rights than what her husband possessed. This Conrt, however, held that in view of the express words of.s. 14 of the 1956 Act, once the widow was possessed of property before or after the commencement of the Act, she held it as full owner and not as a limited owner and, therefore, any restriction placed by Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act of 1956. The Court observed thus:\n\n\"But the words of s. 14 of the Hindu Succession Act are express and explicit; thereby a female Hindu possessed of property whether acquired before or after the commencement of the Act holds it as full owner and not as a limited owner.\n\nThe interest to which Krishna Devi became e.ntitled on the death of her husband nnder s. 3(2) of the Hindn Women's Right to Prope!'ly Act, 1937, in the property of the joint family is indisputably her \"property\" within the meaning of s. 14 of Act 30 of 1956, and when she became \"full owner\" of that property she acquired right unlimited in point of user and duration and uninhibited in point of disposition.\"\n\n(!) [19681 I S.C.R. 476.\n\nThis case indirectly supports the view that if the intention of the A Legislature was to confer absolute interest on the widow, no limitation can be spelt out either from. the old Shastric Law or otherwise which may be allowed to defeat the intention.\n\nThis Court went to the extent of holding that the words in s. 14 ( 1) are so express and explicit that the widow acquired a right unlimited in point of user, though a male member governed by the Benaras school had. no power of alienation without the consent of other coparceners.\n\nUnder the Act the female B had higher powers than the male because the words of the statute did not contain any limitation at all.\n\nOn the parity of reasoning, therefore, where once a property is given to the widow in lieu of maintenance and she enters into possession of that property, no amount of restriction contained in the document can prevent her from acquiring absolute interest in the property because the contractual restriction cannot be higher than the old Hindu Shastric Law or the express words of C the Act of 1956.\n\nIn Badri Prashad v. Smt. Kanso Devi(!) the prepositer died in 194 7 leaving behind five sons and a widow.\n\nSoon after his death disputes arose between the parties and the matter was referred to an arbitrator in 1950. The arbitrator in his award allotted shares to the parties wherein it was stated that the widow would only have widow's D estate in those properties. While .the widow was in possession of the properties, the Act of 1956 came into force and the question arose whether or not she became full owner of the property or she only had a restricted interest as provided in the grant, namely, the award. This Court held that although the award had given a restricted, estate, but this was only a narration of the state of law as it existed when the award was made.\n\nAs the widow, however, inherited the property E under the Hindu Women's Right to Property Act, her interest be~ came absolute with the passing of the Act of 195 6 and she squarely fell within the provisions of s. 14 ( 1) of the Act. It was further held that th.e mere fact that the partition was by means of an award would not bring the matter withins. 14(2) of the Act, because the interest given to the widow was on the basis of pre-existing right and not a new grant for the first time.\n\nThis Court observed as follows : F\n\n\"The word \"acquired\" in sub-s. ( 1) has also to be given the widest possible meaning.\n\nThis would be so because of the language of the Explanation which takes sub-s. (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever.\n\nWhere at the commencement of the Act a female, Hindu has a share in ioint properties which are later on partitioned by metes and bounds and she gets possession of the properties al!otted to her there can be no manner of doubt that she is not only possessed of that property at th~ time of the comirig into force of the Act but has also acquired the same before its commencement.\"\n\n(1) [1970] 7. S.C.R. 95.\n\nA This Court relied upon two earlier decisions : viz., S. S. Munnalal's case and Sukhram's case (supra).\n\nThis case appears to be. nearest to the point which falls for determination in this appeal, though it does not cover the points argued before us directly.\n\nLastly our attention was drawn to an unreported decision of this.\n\nCourt in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives(') in which case Amin Chand and Lakhmi Chand were the owners of agricultural and non-agricultural properties.\n\nThe properties were partitioned in the year 1944 and Lakhmi Chand died leaving behind him the appellant and his second wife Subhrai Bai and hisdaughter by this, wife.\n\nThere was a regular partition between Amin Chand and Subhrai Bai by a registered document dated December 3, 1945 under . which a portion of the property was allotted to Subhrai Bai and it was\n\nproYided in the document that Subhrai Bai would be entitled only to the user of the land and she will have no right to alienate it in any manner but will have only life interest.\n\nLater, Subhrai Bai bequeathed the property in 1957 to her daughter Vidya Wanti. Subhrai Bai died and Vidya Wanti's name was mutated in the papers alter coming into force. of the Act of 1956.\n\nThe point raised before the High Court was tljat as Subhrai Bai had been given only a limited interest in the property she had no power to bequeath the property to her daughter as her case was not covered by s. 14(1) but fell under s. 14(2) of the Act.\n\nThis Court pointed out that at the time when the' property was allotted to Subhrai Bai, the Hindu Succession Act had not come into force and according to the state of, Hindu Law as it then prevailed Subhrai Bai was undoubtedly entitled only to a limited interest.\n\nThere was a restriction in the partition deed that Subhrai Bai would enjoy usufruct of the property only and shall not be entitled to make any alienation. It was not a restriction as such but a mere statement oll law as it then prevailed.\n\nSuch a restriction, therefore, would not bring the case of Subhrai Bai under s. 14(2) of the Act and, therefore, she would acquire an absolute interest after the passing of the Act of 1956 and was, therefore, competent to execute the will in favour of her daughter.\n\nThis Court observed as follows :\n\n\"If Subhrai Bai was entitled to a share in her husband's properties then the suit properties must be held to have been allotted to her .in accordance with law.\n\nAs the law then stood she had only a life interest in the properties taken by her.\n\nTherefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position.\n\nHence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her lifetime. Therefore the trial court as well as the first Appellate Court were right in holding that the facts of the case do not fall within s. 14(2) of the Hindu Succession Act, 1956.\n\nIn the light of the above decisions of this Court the following prin• ciplcs appea1' to be clear :\n\n(1) C.A. No. 609of1965 decided on Jan. 21, 1969.\n\n(1) that the provisions of s. 14 of the l 956 Act must be liberally construed in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu widow which was in consonance with the changing temper of the times;\n\n(2) it is manifestly clear that sub-s. (2) of s. 14 does not refer to any transfer which merely recognises a pre-existing right withont creating or conferring a new title on the widow.\n\nThis was. clearly held by this Court in Badri Parshad's case (supra).\n\n_(3) that the Act of 1956 has made revolutionary and farreaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession;\n\n(4) that sub-s. (2) of s. 14 is merely a proviso to sub-\n\n• c\n\ns. ( 1) of s. 14 and has to be interpreted as a proviso D and not in a manner so as to destroy the effect of the. main provision.\n\nWe have given our anxious consideration to the language of s. 14(1) & (2) and we feel that on a proper interpretation of s. 14(2) there does not appeaii to be any real inconsistency betweens. 14(1), the explanation thereto and sub-s. (2). To begin with, s. 14(1) does not limit the enlargement of the estate of a Hindu widow to any particular interest in the property.\n\nOn the other hand the Explanation to s. 14 ( 1) brings out thereal purpose of s. 14 (1) by giving an exhaustive category of cases where principle of s. 14(1) has to operate, i.e. to cases where a Hindu female would get an absolute interest.\n\nThe argument of the learned counsel for the appellant is that as the right of maintenance was a pre-existing right, any instrument or transaction by which the property was allotted to the appellant would not be a new transaction so as to create a new title but would be only in recoQ'llition of a pre-existing right, namely, the right of maintenance.\n\nOn the other hand Mr. Natesan aooearing for the resoondents submitted that the object of the proviso was to validate rather than disturb the past transactions which had placed certain restrictions or curbs on the power of a Hindu female and as the language of the proviso is very wide there is no warrant for not aoolying it to cases where pre-existin\" riohts are concerned .. In the altema_tiye, Mr. Natesan argued that the Hindu woman's right to maintenance is not a leeal right unless an actual charge is created in respect of the property and is, therefore. not enforceable. at law.\n\nIt is, therefore, not correct to describe a cl\"i\"' of a Hindu female's right to maintenance implicitPr as a pre-existing right because all the necessary indicia of a legal right are wanting.\n\nAfter considering various aspects of the matter we are inclined to agree with the contentions rnised by Mr. Krishna Murthv Iyer aonearjng for the appellant.\n\nIn the first place, the appellant's contention\n\nappears to be more in consonance with the spirit and object of the statute itself.\n\nSecondly, we have. already pointed out that the claim of a Hindu female for maintenance is undoubtedly a pre-existing right and this has been so held not only by various Courts in India but also by the Judicial Committee of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the claim or the right to maintenance possessed by a Hindu female is really a substitute for a share which she would have got in the property of her husband.\n\nThis being the position, where a Hindu female who gets a share in her husband's property acquires an absolute interest by virtue of s. 14(1) of the Act, could it be intended by the legislature •that in the same circumstances a Hindu female who could not get. a share but has a right of maintenance would not get an absolute interest?\n\nIn other words, the position would be that the appellant would suffer because her husband had died prior to the Act of 1937. If the husband of the appellant hi!d died after 1937, there could be no dispute\n\nhat the appellant woulc\\ have got an absolute interest, because she was entitled to her share under the provisions of the Hindu Women's Right to Property Act, 193 7.\n\nFurthermore, it may be necessary to study the language in which the Explanation to s. 14( 1) and sub-s. (2) of s. 14 are couched. It would be seen that while the Explanation to s. 14(1) clearly and expressly mentions \"property acquired by a female\n\nHindu'? at a partition. or in lieu of maintenance or arrears of 1naintenance there is no reference in sub-s. (2) at all to this particular mode of acquisition by a Hindu female which clearly indicates that the intention of the Parliament was to exclude the application of sub-s. (2) to cases where the property has been acquiredi by a Hindu female either at a partition or in lieu of maintenance etc. The Explanation is an inclusive definition and if the Parliament intended that everything that is mentioned in the Explanation should be covered by sub-s. (2) it should have expressly so stated in sub-s. (2).\n\nAgain the language of sub-s.\n\n(2) clearly shows that it would apply only to such transactions which are absolutely independent in nature and which are not in recognition of or in lieu of pre-existing rights. It appears from the Parliamentary Debates that when the Hindu Succession Bill, 1954, was referred to a Joint Committee by the Rajya Sabha, in s. 14(2) which was clause 16(2) of the Draft Bill of the Joint Committee, the words mentioned were only gift or will.\n\nThus the intention of the Parliament was to confine sub-s. (2) only to two transactions, namely a .2ift or a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition.\n\nSubsequently, however, au amendment was proposed by one of the members for adding other cate gories, namely, an instrument, decree, order or award which was accepted bv the Government.\n\nThis would show that the various terms, viz,, gift, will, instrument, decree, order or award mentioned in s. 14(2) would have to be read ejusdem generis so as refer to transac tions where right is created for the first time in favour of the Hindu female.\n\nThe intention of the Parliament in adding the other cateeories to sub-s. (2) was merely to ensure that any transaction under which a Hindu female gets a new. or independent title under any of the modes mentioned ins. 14(2), namely, gift, will, decree, order, award or an instrument which prescribes a restricted estate would not be disturbed and wo, uld continue to occupy the field covered bys. 14(2). This\n\nwould be the position even if a Hindu male was tu get the property A by any of the modes mentioned in s. J 4(2) : he would also get only a restricted interest and, therefore, the Parliament thought that there was no warrant for making ahy distinction 'between a male or a female in this regard and both were, therefore, sought to be equated.\n\nFinally, we cannot overlook the scope and extent of a proviso.\n\nThere can be no doubt that sub-s.' (2) of s. 14 is clearly a proviso to B\n\n~. 14(1) and this has been so held by this Court inBadri Prasad's case (supra). It is well settled that a provision in the nature of a proviso . merely carves out an exception to the main provision and cannot be interpreted in a manner so as to destroy the effect of the main provision or to render the same nugatory. If we accept the argument of the respondent that sub-s. (2) to s. 14 would include even a property which has been acquired by a Hindu female at a partition or in lieu of C maintenance then a substantial part of the Explanation would be completely set at nanght which could never be the intention of the proviso.\n\nThus we are clearly of the opinion that sub-s. (2) of s. 14 of the proviso should be interpreted in such a way so as not to substantially erode s. 14(1) or the Explanation thereto.\n\nIn the present case we feel that the proviso has carved out completely a separate field and before it can apply three conditions must exist : D\n\n(i) tliat the property must have been acquired by way of gift, will, instrument, decree, order of the Court or by an award;\n\n(ii) that any of these documents executed in favour of a Hindu female must prescribe a restricted estate in such property; and\n\n(iii) that the instrument must create or confer a new right, title or interest on the Hindu female and not mrely recoguise, or give effect to a pre-existing right which the female Hindn already possessed.\n\nWhere any of these documents are executed but no restricted estate\n\nis prescribed, sub-s. (2) will have no application.\n\nSimilarly where F these instruments do not confer a new title for the first time on tlie\n\nfemale Hindu, s. 14(1) would have no application. It seems to me that s. 14(2) is a salutary provision which bas been incorporated by the Parliament for historical reasons in order to maintain the link between the Shastric Hindu Law and the Hindu Law which was sought to be changed by recent legislation, so that where a female Hindu became possessed of property not in virtue of any pre-existing G right but otherwise, and the grantor chose to impose certain conditions on the grantee, the legislature 'did not want to interfere with such a transaction by obliterating or setting at naught the conditions imposed.\n\nThere was some argument at the bar regarding the use of the term \"limited owner\" in s. 14(1) and \"restricted estate\" ins. •14(2).\n\nNot much, however, turns upon this.\n\nI think that the Parlia!llent advisedly used the expression \"restricted estate\" in s. 14(2), because while a limited interest would indicate only life estate, a restricted estate is much wider in its import. For instance, suppose a donor while giving\n\nthe property to a Hindu female inserts a condition that she will have to pay Rs. 200/- to donor or to one of his relatives till a particular time, this would not come within the term \"limited interest\", but it would be included by the term \"restricted estate''. That is the only justification for the difference in the terminology_of s. 14( 1) and (2) of the Act.\n\nHaving discussed the various aspects of s. 14(1) and (2) we shall now deal with the authorities cited before us by counsel for the parties which are by no means consistent. We will first deal with the authorities which took the view that we have taken in this case.\n\nJn this connection the sheet-anchor of the argument of the learned counsel for the appellant is the decisi011 of the Bombay High Court in B. B. Petti! v. Gangabai (') and that of the counsel for the respondents is the decision of the Madras High Court in Gurunadham v. Sundraraju/u(') and Santhanam v. Subramania(3 ). 1he latter case was affirmed in appeal by the Division Bench of the Madras High Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (') and the aforesaid Division Bench judgment forms the subjects matter of Civil Appeal No. 135 of 1973 which will be disposed of by us by a separate judgment.\n\nWe will now take up the case of the Bombay High Court relied upon by the learned counsel for the appellant which, in our opinion,. lays down the correct law on the subject. In B. B. Patil v. Gangabai (supra) the facts briefly were that the properties in question were the self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the properties.\n\nDisputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having been referred to the arbitrator he gave his award on October 16, 1903 and a decree in tenns of the award was passed on October 24, 1903.\n\nUnder the decree in terms of the award, 65 acres of land and one house was allotted to Hira Bai out of which 30 acres were earmarked for the provision of maintenance and marriage of the three daughters and the rest of the property was ordered to be retained by Hira Bai for life with certa; n restrictions.\n\nAfter her <lea.th these properties were to revert to Nemgonda.\n\nThe dispute which was the subject-matter of the appeal before the High Court was confined to 35 acres of land and the house which was in possession of Hira Bai.\n\nHira Bai continued to be in possession of these properties right upto February 25, 1967.\n\nMeanwhile Nemgonda had died and his sons defendants 2 to 6 claimed the properties.\n\nAfter the death of Hira Bai, the plaintiffs, who were two out of the\n\nthree daughters of Hira Bai, filed a suit for possession claiming entire title to the properties in possession of Hira Bai on the ground that Hira Bai \\Vas in possession of the properties as limited o\\vner at the time of the passing of the Hindu Succession Act, 1956 and\n\n(I) A.J.R. [1972] Born. 1\".\n\n(2) !.LR. [1968] l Mad. 567.\n\n(3) I.LR. [ 1967] Marl. 68.\n\n(4) A.LR. [1976] M•d. 179.\n\nso her limited estate was enlarged into an absolute estate and the plaintiffs were, therefore, entitled to succeed to her properties in preference to the reversioners.\n\nThe suit was contested by defendants 2 to 6 mainly on the ground that as Hira Bai under the compromise was to retain only a life interest in the properties, her case would be covered by s. 14 ( 2) of the Act and after her death the prnoerties would revert to the reversioners.\n\nThe Court held that as Hira Bai was put in possession of the properties in lieu of her maintenance, s. 14 ( 2) had no application, because the award merely recognised the pre-existing rights of Hira Bai and did not seek to confer any fresh rights or source of title on Hira Bai.\n\nThus even though the award did provide that Hira Bai would have a limited interest, s. 14(2) would have no application and Hira Bai will get an absolute interest after the coming into force of the Hindu Succession, Act, 1956.\n\nThe Court observed :\n\n\"The explanation, thus, brings under its purview all properties traditionally acquired by a Hindu female on which merely by reason of the incidents of the Hindu law she has limited ownership.\n\nIn other words, sub-section ( 1) read with this explanation provides tliat any property, howsoever acquired and in possession Of a Hindu female affer the commencement of the Act shall be held by her as a fnll owner in all cases where she formerly held merely limited ownership.\n\nAs a matter of fact, this sub-section proceeds on the basis that there are several categories of properties of which a Hindu female, under the provisions of Hindu Law, is merely a limited owner.\n\nBy this. enactment her rights1 are enlarged and wherever under the Hindu Law\n\nshe would merely obtain limited ownership, she would, after the commencement of the Act, obtain full ownership.\"\n\n\"There is consensus of judicial opinion with regard to the ambit of sub-s. (2) of s. 14 of the Act.\n\nIt covers only those cases of grants where the interest in the grantee is created by the grant itself, or, in other words, where the g; ft, will, instrument, decree, order or award is the source or origin of the interest created in the grantee.\n\nWhere, however, the instruments referred to above are not the source of interest created but are merely declaratory or definitive of the right to property antecedently enjoyed by the Hindu female, sub-section (2) has no application; and it matters not if in such instruments it is specifically provided in express terms that the Hindu female had a limited estate or that the property would revert on her death to the next reversioner such terms are merely the reiteration of the incidents of the Hindu Law applicable to the limited estate.\"\n\nDwelling on the nature and inCidents of the right of the widow to aintenance before the Hindu Women's Right to Property Act, 1937, Palekar, J., speaking for the Court described the various\n\ncharacteristics and incidents of the right of a Hindu female for maintenance (which have already been discussed by us). Finally, the Judge observed as follows :\n\n\"It appears to us that in the context of the Hindu widows the right to maintenance conferred under the Hfodu Law is ilistinguishable in quality from her right to a share in the family property.\n\nThat may well be the reason why the explanation to sub-section ( 1) of section 14 of the Act makes' the female allottee of property \"in lieu of maintenance\" as much a limited owner as when the widow acquires on \"inheritance\" or \"at a partition\".\n\nAnd. if in the latter two cases it is conceded that sub-section (2) does not apply on !Qe ground of antecedent right to the family properties, we do not see any rational justification to exclude a widow who has an equally sufficient claim over the family properties for her maintenance.\"\n\nThus the following propositions emerge from a detailed discussion of this case :\n\n(I) that the widow's claim to maintenance is undoubtedly a tangible right though not an absolute right to property so as to become a fresh source of title.\n\nThe claim for maintenance can, however, be made a charge on the joint family properties, and even if the properties are sold with the notice of the said charge, the sold properties will be burdened with the claim for maintenance;\n\n(2) that by virtue of the Hindu Women's Right to Property\n\nAct, 193 7 the claim of the widow to maintenance has been crystallized into a full-fledged right and any pro• perty allotted to her in lieu of maintenance becomes property to which she has a limited interest which by virtue of the provisions of Act of 1956 is enlarged into an absolute title;\n\n(3) Section 14(2) applies only to cases where grant is not in lieu of maintenance or in recognition of pre-existing rights but confers a fresh right or title for the first time and while conferring the said title certain restrictions are placed by the grant or transfer. Where, however, the grant is merely in recognition or in implementation of a pre-existing right to claim maintenance, the case falls beyond the purview of s. 14(2) and comes squarely within the explanation to s. 14(1).\n\nThe Court dissented from the contrary view taken by the Orissa and Madras High Courts on this question.\n\nWe find that the facts of this case are on all fours with the present appeal, and we are in complete agreement with the view taken and the reasons given by Palekar, J.\n\nOnce it is recognised that right of maintenance is a pre-existing tangi-\n\nLL righ~, ii mkes no difference whether a Hindu widow died before A or after the enactment of Hindu Women's Rights to Property Act 1937. ,\n\nA similar view was taken by an earlier decision of the Andhra Pradesh High Court in Gadem Reddayya v. Varapula Venkararaju and Anr,. (') where the Court held that the family settlement was only in rccoznition of the pre-existing right of the widow to maintenance and, therefore, was not covered by s. 14(2) of the Act of 1956. In our oph:ion, this case correctly states the law on the subject, •\n\nIn Sumeshwar Mishra v. Swami Nath Tiwari, (') the High Court of Patna appears to have taken the same view, and in our opinion verJ correctly.\n\nThe Patna High Court differed from the decision of the Madras High Court in Thatha Gurunadhan Chetti v. Smt. Thatha Navaneethamma,(') and in our opinion rightly. We are of the opinion, for the reasons that we have already giveq above, that the view of the Madras High Court was not legally correct.\n\nA later decision of the Patna High Court in-Lakshmi Devi v. Shankar Jha(') has also taken the same view; We, however, fully approve of the view expressed by the Patna High Court and Andhra Pradesh High Court referred to above.\n\nD Similarly in H . .Venkanagouda .v. Hanamangouda(') the Mysore High Court adopted the view of the Bombay High Court in B. B. Patil v.\n\nGangabai (supra) and dissented from the contrary view taken by the Madras and the Orissa High Courts.\n\nIn our opinion, this decision seems to have correctly interpreted the provisions of s. 14(2) of the 1956 Act and has laid down the correct law.\n\nThe view of the Madras High Court and the Orissa High Court whlch was dissented from by E the Mysore High Court is, in our opinion, legally erroneous and must be overruled. ·\n\nIn Smt. Sharbati Devi v. Pt. Hira Lal & Anr.(6) the Punjab High Court clearly held that application of s. 14(2) was limited to only those cases where a female Hindu acquired a title for the first time, for otherwise the property acquired in lieu of maintenance even though F conferring a limited estate fell clearly withln the ambit of explanation to s. 14 (!) of the Act and would, therefore, become the absolute pro- : perty of the widow.\n\nThus the Punjab.High Court also fully favours the view taken by the Bombay, Patna, Mysore, Andhra Pradesh and other High Courts discussed above and has our full approval.\n\nThe only distinction in the Punjab case is that here the widow got the pronerties after the comin.~ into force of the Hindu Women's Rights G to Property Act, 1937. but that, as we shall point out hereafter, makes no difference with respect to the legal right which a widow Ilas t'J maintain herself out of the family property.\n\n(I) A.T.R. 1965 A.P. 66.\n\n(2) A.T.R. 1970 Pa'. 348.\n\n(1) A.~.R. 1967 M•d. 429 ..\n\n(4) A.I.R. 1074 Pat. 87.\n\n(5) A.l.l? .. 1972 Mys. 286.\n\n(6) A.I.R. 1964 Pb. 114.\n\n.A The Calcutta High Court has also taken the same view in Sasadhw\n\nChandra Dev v. Smt. Tam Sundari Desi (') which we endom.\n\nIn Saraswathi Ammal v. Anantha Shenoi,(') the Kerala High Court, after a very detailed discussion and meticulous analysis of the law on the subjt, pointed out that the right of a widow to maintenance was not a matter of concession but under the Sastri's Hindu Law it was an obligation on th_e heirs who inherited the properties of the husband to maintain the widow and any property which the widow got in lieu of maintenance was not one given purely as a matter of concession, but the widow acquired a right in such property. We fully agree with the view taken by the Kerala High Court in the aforesaid case.\n\nIn Kunji Thomman v. Meenakshi( 3) although the Kerala High Court reiterated its previous view, on the facts of that particular case the High Court held that under the family settlement the widow did not get any right to maintenance but was conferred a new right which was not based on her pre-existing right and on this ground the High Court felt that the widow would not get au absolute interest in view of the explanation to s. 14 ( 1).\n\nIn Chel/ammal v. Nallammal(') the facts were almost similar to the facts of the present case. A single Judge of the Madras High Court held that the case was clearly covered by the Explaiiation to s. 14 (1) of the Act and the properties given to the widow in lieu of maintenance became her absolute properties and would not be covcrefl by s. 14(2) of the Act.\n\nThis decision appears to have been overruled bv a later decision of the same High Court in S. Kachapalaya Gurnkkal v. V. Subramania Gurukkal (supra) which is the subjectmatter of Civil Appeal No. 126 of 1972 and we shall discuss the Division Bench's decision when we re.fer to the authorities taking a contrary view.\n\nWe find ourselves in complete agreement with the view taken by the Single Jucll(e in Chellammal v. Nellamnwl (supra). and we overrule the Division Bench decision in S. Kachapalaya G11rukkal's case (supra).\n\nF Thus all the decisions discussed above proceed on the right premises and have correctly appreciated the nature and incidents cf a Hindu woman's right to maintenance.\n\nThey have also properly understood the import and applicability of s. 14(2) of the 1956 Act and have iaid down correct law on the subject.\n\nWe now deal with the authorities taking a contrary viev,'. '\\ hich, G in our opinion, does not appear to be the correct view.\n\nJn Narayan Patra v. Tara Patrani(') the Orissa High Court. following a decision of the Andhra Pradesh High Court in G. Kondiah\n\nv. G. Subbarayya( 6), held that since the widows were given o!lly a\n\n(1) A.T.R. 1962 Cal. 418.\n\n(2) A.LR. 1966 Ker. 66.\n\n(3) I.!..R. 1970 2 Ker. 45.\n\n(4) [19711 M.LJ. 439. •\n\n(5) [l nOJ 36 Cutt, ok L.T. 667~A.T.'1.. 1970 Orissa 131.\n\n(6) [1968] /. Andh. W.R. 455.\n\n-·~·\n\n,-__...._ -\n\n-·-·\n\nIestricted estate their case squarely fell within the ambit of s. 14(2) of the Act and their interest would not be enlarged.\n\nReliance was .also placed on a Madras decision in Thatha Gurunadham Chetty v.\n\nThatha Navaneethamma (supra).\n\nIt is obvious that the conclusions arrived at by the High Court are not warranted by the express prmciples of Hindu Sastric Law. It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly a right which in certain cases can amount to a right to property where it is charged.\n\nIt cannot be said that where a property is given to a widow in lien of maintenance, it is , given to her for the. first time and not in lieu of a pre-existing right.\n\nThe claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right con- Jerre<l by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before.\n\nIt cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all.\n\nOnce it is established that the instrument merely recognised the pre-existing right, the widow would acquire absolute interest.\n\nSecondly, the Explanation to s. 14(1) merely mentions the various mooes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation.\n\nSub-section (2) is merely a proviso to s. 14( 1) and it cannot be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under s. 14(1).\n\nSub-section (2) is limited only to those cases where by virtue of certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions. In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain\n\ncondit'ons, the same are binding on the male.\n\nThe effect of sub-s.\n\n(2) is merely to equate male and female in respect of grant conferring a restricted estate.\n\nIn these circumstances we do not agree with the views expressed by the Orissa High Court.\n\nThe other High Courts which have taken a contrary view are mainly the Andhra Pradesh, Allahabad and the Madras Hgh Courts.\n\nIn an earlier decision of the Patna High Court in Shiva Pui<lll Rai and Others v. Jamuna Missir and Others(') the High Court seems to rally round the view taken by the Madras High Court.\n\nWe shall take up the decisions of the Andhra Pradesh High Court.\n\nAs already indicated above, the earlier decision of the Andhra Pradesh High Court in Gadam Reddayya v. Varapula Venkataraju took the same view which was taken later by the Bombay High Court and held that in a case like the present, a Hindu female would get an absolute interest and her case would not be covered by sub-s. (2) of c. 14 of the 1956 Act. In Gopisetti Kondaiah v.\n\nGunda Subbaravudu(') another Division Bench of the same High Court apµcars to have taken a contrary view.\n\nJaganmohan Reddy, C.J .. speaking for the Court observed as follows:\n\n(1) I.LR. 47 Pat. 1118.\n\n(2) LL.TR.[1968] A.P. 621.\n\n\"In so far as the right of a Hindu woman to maintenance is concerned, it is necessary at this stage to point out one nther basic concept.\n\nA Hindu woman has a right to be maintained by her husband or from her husband's property or Hindu joint family property.\n\nBut that is merely a right tu receive maintenance out of the properties without in any way conferring on. her any right, title or interest therein.\n\nIt 1s not a definite right, but is capabie of being made a charge on specific properties by agreement, decree of Court or award, compromise or otherwise.-....... But this inclifinitc right, to be maintained from out of the properties of a Hindu Joint family, does no:, however, create in her a proprietary right in the property .......... But if a restricted estate is given by any such instrument, even if it be in lieu of maintenance, which is inconsistent with an estate she would get under the Hindu Law, then sub-section (2) of section 14 would operate to give her only a restricted estate. . ...... .\n\nBut if it is the latter, notwithstanding the fact that it was transferred in lieu of maintenance, if only a restricted estate was conferred by the instrument, then she would only have the restricted estate.\"\n\nWhile we fully agree with the first part of the observations made by the learned Chief Justice, as he then was that one of the basic concepts of Hindu Law is that a Hindu woman has right to be maintained by her husband or from her husband's property or the joint family property we respectfully disagree with his conclusion that even though this is the legal position yet the right to receive maintenance does not confer on her any right, title or interest in the property.\n\nIt is true that the claim for maintenance is not an enforceable right but it is undoubtedly a pre-existing right, even though no charge is made on the properties which are liable for her maintenance. We also do not agree with the view of the learned Chief Justice that if the property i's given to the widow in lieu of main- .tenance she will get only a restricted estate.\n\nIn our opinion, the High Court of Andhra Pradesh has proceeded on wrong premises.\n\nInstead of acknowledging the right of a Hindu woman to maintenance as a right to a right---or for that matter a pre-existing right-and then considering the effect of the subsequent transactions, the High Court has first presumed that the claim for Il:!aintenance is not a tangible right at all and, therefore, the question of a prc-existmg r; ght does not arise.\n\nThis, as we have already pointed o•, t, is against the consistent view taken by a large number of Co11rts for a very long period.\n\nFurthermore, this case does not appear to have noticed the previous Division Bench decision in Gadam Reddayya's case (supra) taking the contrary view, and on this ground alone the authority of this case is considerably weakened.\n\nAt any rate, since we are satisfied that the claim of a Hindu woman for maintenonce is a pre-existing right, any transaction which is in recognition or declaration of that right clearly falls beyond .the purview of s. 14(2) of the 1956 Act and, therefore, this authonty does not lay down the correct Jaw.\n\nW c, therefore, do not approve of th 0 v; ew taken in this case and overrule the same.\n\nAs regards the Madras High Court, the position appears to be A almost the same.\n\nThere also, while a single Judge took the same view as the Bombay High Court and held thats. 14(2) was not applicable, the Division Bench of the Court in an appeal agamst the order of another Single Judge took the contrary view.\n\nIn S. Kachapalaya Gurukal v. Subramania Gurukkal (supra) the Court seems to .' draw an artificial distinction between a claim of a widow !or maintenance and a pre-existing right possessed by her.\n\nAccording to the B High Court, while a claim for maintenance simpliciter was not a right at all, the right to get a share in the husband's property under the Hindu Women's Right to Property Act, 1937 was a pre-existing right.\n\nThe Madras High Court appears to havti fallen into an error by misconceiving the scope and extent of a Hindu woman's right to maintenance.\n\nSecondly, it appears to have interpreted the proviso in such a manner as to destroy the effect of the main provision, namely, C s. 14 (!) and the explanation thereto, for which there can be no warrant in law. The decision of Natesan, J., in Gurunadham v. Sundrarajulu Chetty (supra) which had been affirmed by this judgment also appears to, have taken the same view and had fallen into the same error.\n\nFurthermore, the view of the learned Judge that on the interpretation given and the view taken by the Bombay High Ccurt which we have accepted, s. 14 is intended to override lawful terms in D contracts, bargains, bequests or gifts etc. is not correct, because the scope and area of sub-s. (2) of s. 14 is quite separate and defined.\n\nSuch a §Uh-section applies only to such transactions as confer new right, title or interest on the Hindu females.\n\nIn such cases the titles created under sub-s. (2) :.re left in tact ands. 14(1) does not interfere with the titles so created under those instruments.\n\nE Thus, in short, these two decisions suffer from the following legal infirmities : (i) the Madras High Court has not correctly or properly appreciated the nature and extent of the widow's righ~ to maintenacc; and (ii) .the distinction drawn by the Court regarding the share given to the widow under the Hmdu Women's Right to Property Act allotted to her before the passing of the Act in lieu of maintenance is based on artificial grounds.\n\nIn fact the Act of 1937 did not legislate F anything new, but merely gave statutory recognition to the old Shastric Hil, Ju Law by consolidating the same and clarifying the right of the widow which she already possessed in matter of succession under the Hindu Law.\n\nThis being the position, the Act of 1937 makes rio difference so far as the legal status of a widow in regard to her right to maintenance was, concerned.\n\nThe Act neither took away the right of maintenance nor conferred the same; (iii) the Court appears to • G have given an extended meaning to sub-s. (2) of s. 14 of the 1956 Act which has been undoubtedly enlarged so as to set at naught the express words in the Explanation to sub-s. (1) of s. 14 which expressly exclude the property given to a widow in lieu of maintenance or at a partition from the ambit of sub-s. (l). In other words, such a property, according to the Explanation, is a property in which the widow would have undoubtedly a limited interest which by operation H of law i.e. force of s. 14(1) would be enlarged into an absolute interest if the widow is in possession of the property on the date when the Act was passed; (iv) similarly the Court failed to notice that\n\n5-436SCI/77\n\nsub-s. (2) of. s. 14 would apply only whre a new right is created\n\nfor the first tune by virtue o! a gift, will etc. or the like executed in favour of the widow in respect of which she had no prior interest in !he property at all.\n\nFor instan\"e, a daughter is given a limited inerest Ill presence of the widow.\n\nHere the daughter not being an heir m presence of the widow (before !he Hindu Succession Act came into force) she had no right or share in the praperty, and if she was allotted some property under any instrument, a new and fresh right was created in her favour for !he first time which she never possessed.\n\nSuch a case would be squarely covered bys. 14(2) of the Act.\n\nIn Ram Jag Misir v. The Director of Consolidation, U.P.,(') the same view has been taken as the Madras High Court.\n\nThis case does not discuss the various aspects which have been pointed out by us and proceeds purely on the basis that as the widow acquired a res- C tricted estate under the compromise, s. 14(2) would at once apply.\n\nIt has not at all considered !he decisions of tliis Court that a mere description of limited interest in a grant or compromise is not a restriction but may just as well as merely a statement of the law as it\n\nstood when the grant was made. The Court has also not considered the various incidents and characteristics of the widow's right to maintenance under the Hindu Law.\n\nD Reliance was also placed by !he learned counsel for the1 respondents on a Division Bench decision of the Patna High Court in Shiv Pujan Rai v. !amuna Missir (supra) where the High Court held that the property given to a widow under a compromise in lieu of her maintenance was covered by sub-s. (2) of s. 14. This decision was really based on the peculiar findings of fact arrived at by the Courts\n\nof fact. The High Court in the first place held that on the facts E there was nothing to show !hat the widow acquired any interest independent of the compromise under which she was given the praperty.\n\nIn these circumstances, it may be !hat the widow was given a fresh or a new title under the compromise in which case the matter would be clearly covered bys. 14(2) of the 1956 Act. Even if this case be treated as an authority for the proposition !hat any property allotted to a widow under a compromise in lieu of maintenance would be covered F by s. 14(2) of the Act, then we dissent from this view, and for !he reasons which we have already given we choose to prefer the view taken by the Patna High Court in a later case in Sumeshwar Mishra v. Swami Nath Tiwari (supra), which lays down the correct law on the subject.\n\nReliance was also placed on a Full Bench decision of !he Jammu & Kashmir High Court in Ajab Singh & Ors. v. Ram Singh and other.(') In this case also the various aspects which we have indicated G • and the nature and extent of the Hindu women's right to mantenance were not considered at all and the Court proceeded by giving an extended meaning to !he provisions of sub-s. (2) of s. 14 which in that case was sub-s. (2) of s. 12 of the Jammu & Kashmir Hindu Succession Act 1956. It is true that the leading Judgment was given by one of u~ (Fazal Ali, J.,) but I must confess that the important question of law that has been argued before us in all its comprehensive H aspects was not presented before me in that case and even the counsel\n\n(1) A.I.R. 1975 All. 151.\n\n(2) A.1.R. 1959 J & K 92.\n\nfor the respondents did not seriously contend that sub-s. (2) of s. 14 A was not applicable.\n\nFor these reasons we are not in a position to approve of the Full Bench decision of the Jammu & Kashmir High Court in Ajab Singh's case. which is hereby overruled.\n\nThus on a careful scrutiny and analysis of the authorities discussed above, the position seems to be that tl:e view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, L:1jab, Calcutta B and Kerala to the effect that the widow's claim to maintonc.::ce, even though granted to her subject to certain restrictions, is covered by s. 14\n\n(1) and not by sub-s. (2) is based on the following premises:\n\n(1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property.\n\nSuch a right can mature into a full-fledged one if it is charged on the property either by an agreement or by a decree.\n\nEven otherwise, where a family possesses property, the husband, or in case of his death, his heirs are burdened with the obligation to maintain the widow and, therefore, the widow's claim for maintenance is not an empty formality but a pre-existing right.\n\n(2) Section 14(2) which is in the nature of a proviso to s. 14(1) cannot be interpreted in a way so as to destroy the concept and defeat the purpose which is sought to be effectuated by s. 14 (1) in conferring an absolute interest on the Hindu women and in doing away with what was heretobefore known as the Hindu women's estate.\n\nThe proviso will apply only to such cases which flow beyond the purview of the Explanation to s. 14(1).\n\n( 3) That the proviso would not apply to any grant or transfer in E favour of the widow hedged in by limitation or restrictions, where the grant is merely in recognition or declaration of a pre-existing right, it will apply only to such a case where a new right which the female .did not possess at all is sought to be conferred on her nnder certain limitations or exceptions.\n\nIn fact in such a case even if a conditional grant is made to a male, he wonld be bound by the condition imposed.\n\nThe proviso wipes out the distinction between a male and a female in F this respect. ·\n\nThe contrary view taken by the Madras, Orissa, Andhra Pradesh Allahabad and Jammn & Kashmir High Courts proceeds on the fol~ lowing grounds :\n\n.< 1) That a. widow's. claim to maintenance is merely an inchoate or mcomplete nght havmg no legal status, unless the widow gets a property in lieu of maintenance or unless a charge is created in a particular property the claim for maintenance cannot be legally enforced.\n\nThus, where under a grant, compromise, transfer or a decree, a property is allotted to the widow in lieu of maintenance, it is not the recognition of any pre-existing right but it amounts to confennent of a new right for the first time which in fact did not exist before the said demise.\n\nThis view is really based on the provisions of.the Hindu Women's Right to Property Act, 1937, under which the widow has got the right to get a share o£ his son in lieu of partition and even\n\notherwise she is entitled to her share in the joint Hindu family property on partition.\n\nThese High Courts, therefore, seem to be of the opinion that in view of the provisions of the Hindu Women's Right to Property Act, the widow in claiming a share in the property has a pre-existing right which is recognised by law, namely, the Act of 1937 . . The same, however, cannot be said of a bare claina to maintenance which has not been recognised as a legal right and which can mature into a legally enforceable right only under a grant or demise.\n\nThis \\iew suffers from a serious fallacy, which is based on a misconception of the truei position of a Hindu widow's claim for maintenance. It bas been seen from the. discussion regarding the widow's claim for maintenance and her status in family that under the pure Sastric Hindu Law the widow is almost a co-owner of the properties with her husband and even before the Act of 1937 she was enti.tled to the share of a son on the death of her husband a; fter partition according to some schools of Hindu Law.\n\nThe Act of 1937 did not introduce any new right but merely gave a statutory recognition to the old\n\nSastric Hindu Law on the subject.\n\nIn this respect the Act of 1937 is very different from the Act of 1956, the latter of which bas made a revolutionary change in the Hindu Law and has changed the entire complexion and concept of Hindu women's estate.\n\nIn these circum-· stances, therefore, if the widow's claim for maintenance or right to get the share of a son existed before the Act of 1937, it is futile to dub this, right as flowing from the Act of 1937. The second fallacy in this. view is that the Court failed to consider that the claim for maintenance is an important right which is granted to the widow under the Sastric Hindu Law which enjoins the husband to maintain bis wife even if he bas no property.\n\nWhere he bas a property the widow bas to be maintained from that property so much so that after the death of her husband any one who inherits that property takes the property subject to the burden of mruntaining the widow.\n\nEven where the property is transferred for payment of family debts and the transferee has the notice of the widow's clrum for mruntenance, he has to discharge the burden of maintaining the widow from the property sold to him.\n\nThus the nature and extent of the right of the widow to claim maintenance is undoubtedly a pre-existing right and it is wrong to say that such a right comes into existence only if the property is allotted to the widow in lieu of maintenance and not otherwise.\n\nAnother reasoning given by the courts taking the contrary view is that! sub-s. (2) being in the nature of a proviso to s. 14(1) all , grants with conditions take the case out of s. 14(1). This, as we have already pointed out, is based on a wrong interpretation of the scope and! ambit of sub-s. (2) of s. 14.\n\nLastly, the contrary view is in direct conflict with the observations made by this Court in the cases referred to above, where a grant in lieu of maintenance of the widow has been interpreted as being in recogpition of a pre-existing right so as to take away the case from the ambit of sub-s. (2).\n\nFor these reasons and those given hereto before we choose to prefer the view taken by Pa)ekar, J., in B. B: Patil v. qangabai (s_npra) which appears to be more m consonance Wlth the ob1ect and spmt of\n\nthe 1956 Act.\n\nWe, therefore, affirm and approve of the decisions of the Bombay High Court in B. B. Patil v. Gangabai; of the Andhra Pradesh High Court in Gadam Reddayya v. Varapula Venkataraju & Anr.; of the Mysore High Court in H. Venkanagouda v. Hanamanagouda; of the Patna High Court in Sumeshwar Mishra v. Swami Nath Tiwari; of the Punjab High Court in Srnt. Sharbati Devi v. Pt. Hira Lal & Anr. and Calcutta High Court in Sasadhar Chandra Dev v. Srnt. Tara Sundari Dasi (supra) and disapprove the decisions of the Orissa High Court in Narayan Patra v. Tara Patrani; Andhra Pradesh High Court in Gopisetty Kondaiah v. Gunda Subbarayudu (supra); Madras High Court in S. Kachapalaya Gurukkal v. V. Subramania Gurukkal (supra) and Gurunadham v. Sundararajulu; of the Allahabad High. Court in Ram Jag Missir v. Director of Consolidation, U.P.;_ and in A jab Singh & Ors. v. Ram Singh & Ors. of the Jammu & Kashmir High Court.\n\nLastly strong reliance was placed by Mr. Natesan counsel for the respondents on a decision of this Court in Smt. Naraini Devi v. Smt.\n\nRamo Devi & Others(') to which one of us (Fazal Ali, J.,) was a party.\n\nThis case is no doubt directly in point and this Court by holding that where under an award an. interest is created in favour of a widow that she should be entitled to rent out the property for her !if~\n\ntime, it was held by this Court that this amounted to a restricted estate under s. 14(2) of the 1956 Act. Unfortunately the various aspects, tnamely, the nature and extent of the Hindu women's right to maintenance, the limited scope of snb-s. (2), which is a proviso to sub-s.\n\n(1) of s.\" 14 and the effect of the Explanation etc., to which we have adverted in this judgment, were. neither brought to our notice nor were argued before us in that case.\n\nSecondly, the ground on which this Court distinguished the earlier decision of this Court in Badri Parshad\n\nv. Smt. Kanso Devi (supra) was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the Hindu Law as it was applicable then, and, therefore,' such a share amounted to a prexisting right.\n\nThe attention of this Court, however, was not drawn to the language of t\\Je Explanation to s. 14(1) where a property given to a widow at a partition or iu lieu of maintenance had been placed in the same category, and, therefore. the reason given by this Court does not appear to be sound.\n\nFor the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi's case (supra) was not correctly decided and js therefore. overruled.\n\nIndeed, if the contrary view is accepted, it will, in my opininn, 'Set at naught the legislative process of a part of Hindu Law of the\n\nintestate succession and curb the social urges and aspirations of lhe Hindu women, particularly in the International Year of Women, by reviving a highly detestable legacy which was sought to be buried by the Parliament after independence so that the new legislation may march with the time8. ·· ·\n\nWe would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question of law involved in this appeal as to the\n\n(!) [1976] 1 s.c.c. 574.\n\n\"\".~ ..\n\nA interpretation oil' s. 14(1) and (2) ot the Act of 1956.\n\nThese conclusions may be stated thus :\n\n( 1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter. of grace and generosity, but is a tangible right against property which flows from the spiritual relatiouship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.\n\nSuch a right may not be a right to property but it is a right against property and the hus_band has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one.\n\nAt any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confinns the pre-existing rights.\n\n(2) Section 14(1) and the Explanation thereto hav~ been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.\n\n(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially.\n\nThe proviso should not he construed in a manner so as to destroy the effect of the main provision or the protectiou granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.\n\n( 4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise preexisting rights.\n\nIn such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-sectiou has absolutely no application and the female's limited interest wonld automatically be enlarged into an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document wonld have to be ignored. Thus whern a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-s. (2) and would be governed bys. 14(1) despite any restriction~ placed on the powers of the transferee.\n\n(5) The use of express terms like \"property acquired by a female Hindu at a partition\", \"or in lieu of maintenance\" \"or arrears o~ maintenance\" etc. in the Explanation to s. 14(1) clearly makes sub-s.\n\n(2) inapplicable to these categories which have been expressly exceoted from the operation of sub-s. (2).\n\n( 6) The words \"possessed by\" used by the Legislature in s. 14 (I) are of the widest possible amplitude and include the state of owning \" property even though the owner is not in actual or physical possession of the same.\n\nThus, where a widow gets a share in the property undet a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she1 would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a clainI, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.\n\n(7) That the words \"restricted estate~ used in s. 4(2) are wider than limited interest as indicated ins. 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.\n\nApplying the principles enunciated above to the facts of the present case, we find-\n\n(i) that the properties in suit were allotted to the appellant Tnlasamma on July 30, 1949 under a compromise certified by the' Court;\n\n(ii) that the appellant had taken only' a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;\n\n(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and\n\n(iv) that the alienatious which she had made in 1960 and 1961 were after she had acquired an abwlnte interest in the properties.\n\nIt is, therefore, clear that the compromise by which the properties were allotted to the appellant Tulasamma in lieu of her maintenance were merely in recognition of her right to maintenance which was a pre-existing right and, therefore, the case of the appellant would be take11 out of. the ambit of s. 14 (2) and would fall squarely withi11 s. 14 ( 1) read with the Explanation thereto.\n\nThus the appellant would acquire an absolute interest when she was in possession of the properties at the time when the 1956 Act came into force and any restrictions placed under the compromise would have to be completely ignored. This being the position, the High Court was in error in holding that the appellant Tulasamma would have only a liniited interest in setting aside the alienations made by her.\n\nWei are satisfied that the High Court decreed the suit of the plaintiffs on an erroneous view of the law.\n\nThe result is that the appeal is allowed, the judgment and decree of the High Court are set aside, the judgment of the District Judge, Nellore is hereby restored and the plaintiffs' suit is dismissed. In the peculiar circumstances of this case and having regard to the serious divergence of judicial opinion of the various Courts of India, we would make no order as to costs in this Court.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 369, "entities": [{"text": "261\n\nV. TULASAMMA & ORS", "label": "PETITIONER", "start_char": 2, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "V. TULASAMMA & ORS", "offset_not_found": false}}, {"text": "V. SESHA REDD! (DEAD) BY L. Rs", "label": "RESPONDENT", "start_char": 28, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "V. SESHA REDDI (DEAD) BY L.Rs", "offset_not_found": false}}, {"text": "March 17, 1977", "label": "DATE", "start_char": 61, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "March 17, 1977\n\n(P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.J B Hindu Succession Act, 1956-S. 14(1) and (2)-Scope of."}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 78, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "P. N. BHAGWATI", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 94, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "A. C. GUPTA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 110, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI, JJ", "offset_not_found": false}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 139, "end_char": 165, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 14(1)", "label": "PROVISION", "start_char": 166, "end_char": 174, "source": "regex", "metadata": {"linked_statute_text": "Hindu Succession Act, 1956", "statute": "Hindu Succession Act, 1956"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 194, "end_char": 204, "source": "regex", "metadata": {"linked_statute_text": "Hindu Succession Act, 1956", "statute": "Hindu Succession Act, 1956"}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 217, "end_char": 243, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 1776, "end_char": 1784, "source": "regex", "metadata": {"statute": null}}, {"text": "s.14(2)", "label": "PROVISION", "start_char": 1992, "end_char": 1999, "source": "regex", "metadata": {"statute": null}}, {"text": "s.14(1)", "label": "PROVISION", "start_char": 2060, "end_char": 2067, "source": "regex", "metadata": {"statute": null}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 2131, "end_char": 2158, "source": "regex", "metadata": {}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 2328, "end_char": 2336, "source": "ner", "metadata": {"in_sentence": "Allowing the appea1,\n\n(Per Bhagwati and Gupta, JJ)\n\nHELD : Since the properties were acquired by the appellant under the compromise in lieu or satisfaction of her right to rnaintainance it is s. 14(1) and not •.14(2) which would be applicable.", "canonical_name": "Bhagwati"}}, {"text": "Gupta", "label": "JUDGE", "start_char": 2341, "end_char": 2346, "source": "ner", "metadata": {"in_sentence": "Allowing the appea1,\n\n(Per Bhagwati and Gupta, JJ)\n\nHELD : Since the properties were acquired by the appellant under the compromise in lieu or satisfaction of her right to rnaintainance it is s. 14(1) and not •.14(2) which would be applicable."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 2493, "end_char": 2501, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "Section 14(1)", "label": "PROVISION", "start_char": 3834, "end_char": 3847, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 7623, "end_char": 7628, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1967 SC 1786", "label": "CASE_CITATION", "start_char": 7852, "end_char": 7868, "source": "regex", "metadata": {}}, {"text": "[1970] 2 SCR 95", "label": "CASE_CITATION", "start_char": 7939, "end_char": 7954, "source": "regex", "metadata": {}}, {"text": "[1969] 3 SCR 789", "label": "CASE_CITATION", "start_char": 8108, "end_char": 8124, "source": "regex", "metadata": {}}, {"text": "AIR 1959 J&K 92", "label": "CASE_CITATION", "start_char": 9015, "end_char": 9030, "source": "regex", "metadata": {}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 9053, "end_char": 9062, "source": "ner", "metadata": {"in_sentence": "C (per Fazal Ali, J concurring)\n\nThe High Court was in error in holding that the appellant would have only a limited interest and in setting aside the alienations made by her.", "canonical_name": "Fazal Ali"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 9439, "end_char": 9447, "source": "regex", "metadata": {"statute": null}}, {"text": "Gopal Chandra Sarkar Sastri", "label": "LAWYER", "start_char": 11459, "end_char": 11486, "source": "ner", "metadata": {"in_sentence": "II Hindu Law by Gopal Chandra Sarkar Sastri, p. 533."}}, {"text": "Kashinath Narayan", "label": "LAWYER", "start_char": 11763, "end_char": 11780, "source": "ner", "metadata": {"in_sentence": "494, Narbadabai\n\nv. Mahadeo Narayan, Kashinath Narayan and Shamabai, I.L.R. 5 Bom.", "canonical_name": "Kashinath Narayan"}}, {"text": "Shamabai", "label": "RESPONDENT", "start_char": 11785, "end_char": 11793, "source": "ner", "metadata": {"in_sentence": "494, Narbadabai\n\nv. Mahadeo Narayan, Kashinath Narayan and Shamabai, I.L.R. 5 Bom.", "canonical_name": "Shamabai"}}, {"text": "L.R. 73 I.A. 208", "label": "CASE_CITATION", "start_char": 11847, "end_char": 11863, "source": "regex", "metadata": {}}, {"text": "L.R. 63 I.A. 33", "label": "CASE_CITATION", "start_char": 11906, "end_char": 11921, "source": "regex", "metadata": {}}, {"text": "[1969] 3 S.C.R. 789", "label": "CASE_CITATION", "start_char": 11963, "end_char": 11982, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 12509, "end_char": 12514, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 12790, "end_char": 12795, "source": "regex", "metadata": {"statute": null}}, {"text": "Badri Pershad", "label": "OTHER_PERSON", "start_char": 12969, "end_char": 12982, "source": "ner", "metadata": {"in_sentence": "This was clearly held by this Court in Badri Pershad's case.", "canonical_name": "Badri Pershad"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13367, "end_char": 13372, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 13410, "end_char": 13415, "source": "regex", "metadata": {"statute": null}}, {"text": "Yajnavalkya", "label": "OTHER_PERSON", "start_char": 14021, "end_char": 14032, "source": "ner", "metadata": {"in_sentence": "A Hindu female's right to maintenance is not an empty formality or an illusory claim but is a tangible right against property which flows from spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.", "canonical_name": "Yajnavalkya"}}, {"text": "Manu", "label": "OTHER_PERSON", "start_char": 14036, "end_char": 14040, "source": "ner", "metadata": {"in_sentence": "A Hindu female's right to maintenance is not an empty formality or an illusory claim but is a tangible right against property which flows from spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.", "canonical_name": "Manu"}}, {"text": "Section 14(1)", "label": "PROVISION", "start_char": 14629, "end_char": 14642, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(2)", "label": "PROVISION", "start_char": 14924, "end_char": 14937, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 15037, "end_char": 15045, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 15187, "end_char": 15195, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(2)", "label": "PROVISION", "start_char": 15282, "end_char": 15295, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 15646, "end_char": 15654, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 16014, "end_char": 16022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 16297, "end_char": 16305, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 16553, "end_char": 16561, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 16728, "end_char": 16736, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 17149, "end_char": 17157, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 17556, "end_char": 17564, "source": "regex", "metadata": {"statute": null}}, {"text": "S11", "label": "PROVISION", "start_char": 19063, "end_char": 19066, "source": "regex", "metadata": {"statute": null}}, {"text": "T. S. Krishnamurthi Iyer", "label": "LAWYER", "start_char": 19400, "end_char": 19424, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for B the appellants."}}, {"text": "R. K. Pillai", "label": "LAWYER", "start_char": 19426, "end_char": 19438, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for B the appellants."}}, {"text": "R. Vasudev Pillai", "label": "LAWYER", "start_char": 19443, "end_char": 19460, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamurthi Iyer, R. K. Pillai and R. Vasudev Pillai, for B the appellants."}}, {"text": "T. V. S. Narasimhachari", "label": "LAWYER", "start_char": 19485, "end_char": 19508, "source": "ner", "metadata": {"in_sentence": "T. V. S. Narasimhachari, for the respondents."}}, {"text": "P. N. Bhagwati", "label": "JUDGE", "start_char": 19548, "end_char": 19562, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. N. Bhagwati and A.C. Gupta, JJ.", "canonical_name": "P. N. BHAGWATI"}}, {"text": "A.C. Gupta", "label": "JUDGE", "start_char": 19567, "end_char": 19577, "source": "ner", "metadata": {"in_sentence": "The Judgment of P. N. Bhagwati and A.C. Gupta, JJ.", "canonical_name": "A. C. GUPTA"}}, {"text": "S. Murtaza Fazal Ali", "label": "JUDGE", "start_char": 19613, "end_char": 19633, "source": "ner", "metadata": {"in_sentence": "was delivered by Bhagwati, J. S. Murtaza Fazal Ali, J. gave a separate opinion.", "canonical_name": "S. MURTAZA FAZAL ALI, JJ"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 19664, "end_char": 19672, "source": "ner", "metadata": {"in_sentence": "BHAGWATI, J.-We have had the advantage of reading the judgment prepared by our learned brother S. Murtaza Fazal Ali and we agree with the conclusion reached by him in that judgment but we would prefer to give our own reasons.", "canonical_name": "Bhagwati"}}, {"text": "section 14", "label": "PROVISION", "start_char": 20180, "end_char": 20190, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 20198, "end_char": 20224, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 21042, "end_char": 21052, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "section 14", "label": "PROVISION", "start_char": 23354, "end_char": 23364, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 23372, "end_char": 23398, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 24560, "end_char": 24570, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 24865, "end_char": 24875, "source": "regex", "metadata": {"statute": null}}, {"text": "This Court pointed out that the Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 25121, "end_char": 25179, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 25562, "end_char": 25572, "source": "regex", "metadata": {"linked_statute_text": "This Court pointed out that the Hindu Succession Act, 1956", "statute": "This Court pointed out that the Hindu Succession Act, 1956"}}, {"text": "section 14", "label": "PROVISION", "start_char": 26715, "end_char": 26725, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 27220, "end_char": 27230, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 28209, "end_char": 28219, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 28560, "end_char": 28570, "source": "regex", "metadata": {"statute": null}}, {"text": "(1970] 2 S.C.R. 95", "label": "CASE_CITATION", "start_char": 32406, "end_char": 32424, "source": "regex", "metadata": {}}, {"text": "Badri Prasad", "label": "OTHER_PERSON", "start_char": 32619, "end_char": 32631, "source": "ner", "metadata": {"in_sentence": "This constructional approach finds support in the decision in Badri Prasad's case\n\n(supra) where this Court observed that sub-sectipn (2) \"can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property\".", "canonical_name": "Badri Pershad"}}, {"text": "Rajya Sabha", "label": "ORG", "start_char": 33053, "end_char": 33064, "source": "ner", "metadata": {"in_sentence": "It may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corre'!Ponding to the present sub-section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes or acquisition were added so as to include acquisition of property under an instrument, decree, order or award."}}, {"text": "clause 15(2)", "label": "PROVISION", "start_char": 33066, "end_char": 33078, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 33147, "end_char": 33157, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 34107, "end_char": 34117, "source": "regex", "metadata": {"statute": null}}, {"text": "Badri Parasad", "label": "OTHER_PERSON", "start_char": 34239, "end_char": 34252, "source": "ner", "metadata": {"in_sentence": "We may in this connection refer to the decision in Badri Parasad's case (supra).", "canonical_name": "Badri Pershad"}}, {"text": "Gajju Mal", "label": "OTHER_PERSON", "start_char": 34306, "end_char": 34315, "source": "ner", "metadata": {"in_sentence": "The facts in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving five sons and a widow."}}, {"text": "August 3, 1950", "label": "DATE", "start_char": 34396, "end_char": 34410, "source": "ner", "metadata": {"in_sentence": "On August 3, 1950, one Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal."}}, {"text": "Tulsi Ram Seth", "label": "OTHER_PERSON", "start_char": 34416, "end_char": 34430, "source": "ner", "metadata": {"in_sentence": "On August 3, 1950, one Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal."}}, {"text": "Gujju Mal", "label": "OTHER_PERSON", "start_char": 34577, "end_char": 34586, "source": "ner", "metadata": {"in_sentence": "On August 3, 1950, one Tulsi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had ari'sen relating to partition of the properties left by Gujju Mal."}}, {"text": "December 31, 1950", "label": "DATE", "start_char": 34622, "end_char": 34639, "source": "ner", "metadata": {"in_sentence": "The arbitrator made his award on December 31, 1950 and under clause 6 of the award, the widow was awarded certain properties and it was expressly stated in the award that she would have a widow's estate in the properties awarded to her."}}, {"text": "clause 6", "label": "PROVISION", "start_char": 34650, "end_char": 34658, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 35118, "end_char": 35128, "source": "regex", "metadata": {"statute": null}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 35476, "end_char": 35503, "source": "regex", "metadata": {}}, {"text": "December 3, 1945", "label": "DATE", "start_char": 35677, "end_char": 35693, "source": "ner", "metadata": {"in_sentence": "So also in Nirmal Chand v. Vidya Wanti (dead) by her leJ?al representatives(1 ), there was a regular partition deed made on December 3, 1945 between Amin chand, a coparcener and\n\n(1) C.A. No."}}, {"text": "Amin chand", "label": "OTHER_PERSON", "start_char": 35702, "end_char": 35712, "source": "ner", "metadata": {"in_sentence": "So also in Nirmal Chand v. Vidya Wanti (dead) by her leJ?al representatives(1 ), there was a regular partition deed made on December 3, 1945 between Amin chand, a coparcener and\n\n(1) C.A. No.", "canonical_name": "Amin chand"}}, {"text": "January 21, 1969", "label": "DATE", "start_char": 35769, "end_char": 35785, "source": "ner", "metadata": {"in_sentence": "609 of 1965, decided on January 21, 1969."}}, {"text": "Subhrai Bai", "label": "PETITIONER", "start_char": 35841, "end_char": 35852, "source": "ner", "metadata": {"in_sentence": "Bhagwati, J.) 271\n\nSubhrai Bai, the widow of a deceased coparcener, under which a cer- A tain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have a life interest.", "canonical_name": "Subhrai Bai"}}, {"text": "Vidyawati", "label": "OTHER_PERSON", "start_char": 36313, "end_char": 36322, "source": "ner", "metadata": {"in_sentence": "Subhrai Bai died in 1957 subsequent to the coming into force of the Act after making a will bqueathing the property in favour of her daughter Vidyawati.", "canonical_name": "Vidya Wanti"}}, {"text": "Hindu Succession Act, 1955", "label": "STATUTE", "start_char": 37635, "end_char": 37661, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Badri Persad", "label": "OTHER_PERSON", "start_char": 38696, "end_char": 38708, "source": "ner", "metadata": {"in_sentence": "The object of sub-section (2), as pointed out by this Court in Badri Persad' s case\n\n(supra) while quoting with approval the observations made by the Madras High COjllrt in Rangaswami Naicker v. Chi1111ammal('), is\n\n\"only to remove the disability of women imposed by law and not to interfere with ontraets, grants or decree etc.", "canonical_name": "Badri Pershad"}}, {"text": "Madras High COjllrt", "label": "COURT", "start_char": 38783, "end_char": 38802, "source": "ner", "metadata": {"in_sentence": "The object of sub-section (2), as pointed out by this Court in Badri Persad' s case\n\n(supra) while quoting with approval the observations made by the Madras High COjllrt in Rangaswami Naicker v. Chi1111ammal('), is\n\n\"only to remove the disability of women imposed by law and not to interfere with ontraets, grants or decree etc."}}, {"text": "iu Ranibai", "label": "OTHER_PERSON", "start_char": 42508, "end_char": 42518, "source": "ner", "metadata": {"in_sentence": "v. Shiva:ranappa( 2 ) cited with approval iu Ranibai's case (supra)."}}, {"text": "Nirmal Chand", "label": "OTHER_PERSON", "start_char": 44516, "end_char": 44528, "source": "ner", "metadata": {"in_sentence": "the property would be, to quote the word's of this Court in Nirmal Chand's case (snpra), \"merely recording the true legal position\" and that would not attract the applicability of sub-section (2) but would be governed by sub-section E ( 1) of section 14."}}, {"text": "section 14", "label": "PROVISION", "start_char": 44699, "end_char": 44709, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 44919, "end_char": 44929, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 45902, "end_char": 45912, "source": "regex", "metadata": {"statute": null}}, {"text": "Palekar", "label": "JUDGE", "start_char": 46055, "end_char": 46062, "source": "ner", "metadata": {"in_sentence": "the judgment of Palekar, J., as he then was, in B. B. Patil v. Gangabai (supra) is a well reasoned iudgment and it has our full approval. •", "canonical_name": "Palekar"}}, {"text": "section 14", "label": "PROVISION", "start_char": 46873, "end_char": 46883, "source": "regex", "metadata": {"statute": null}}, {"text": "FAzAL ALI", "label": "JUDGE", "start_char": 47309, "end_char": 47318, "source": "ner", "metadata": {"in_sentence": "FAzAL ALI, J.\n\nThis is a defendant's appeal by special leave against E the judgment of the High Court of Andhra Pradesh dated November 22, 1967 and arises in the following circumstances.", "canonical_name": "Fazal Ali"}}, {"text": "November 22, 1967", "label": "DATE", "start_char": 47435, "end_char": 47452, "source": "ner", "metadata": {"in_sentence": "FAzAL ALI, J.\n\nThis is a defendant's appeal by special leave against E the judgment of the High Court of Andhra Pradesh dated November 22, 1967 and arises in the following circumstances."}}, {"text": "Venkatasubba Reddy", "label": "PETITIONER", "start_char": 47497, "end_char": 47515, "source": "ner", "metadata": {"in_sentence": "Venkatasubba Reddy, husband of appellant No."}}, {"text": "Vaddeboyina", "label": "PETITIONER", "start_char": 47544, "end_char": 47555, "source": "ner", "metadata": {"in_sentence": "1 Vaddeboyina .,"}}, {"text": "Tulasamma", "label": "PETITIONER", "start_char": 47560, "end_char": 47569, "source": "ner", "metadata": {"in_sentence": "Tulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the year 1931 in a state of jointness with his step brother V. Sesha Reddy and left behind Tulasamma as his widow.", "canonical_name": "D Tulasamma"}}, {"text": "V. Sesha Reddy", "label": "OTHER_PERSON", "start_char": 47683, "end_char": 47697, "source": "ner", "metadata": {"in_sentence": "Tulasamma-hereinafter to be referred to as 'Tnlasamma'-died in the year 1931 in a state of jointness with his step brother V. Sesha Reddy and left behind Tulasamma as his widow."}}, {"text": "Tulasamma", "label": "PETITIONER", "start_char": 47775, "end_char": 47784, "source": "ner", "metadata": {"in_sentence": "On October 11, 1944 the\n\nF appellant Tulasamma filed a petition for mainteruii:ice in forma\n\npauperis against the respondent in the Court of the District Munsif, Nellore.", "canonical_name": "D Tulasamma"}}, {"text": "June 29, l 946", "label": "DATE", "start_char": 48071, "end_char": 48085, "source": "ner", "metadata": {"in_sentence": "This application 'Was set e:xi parte on January 13, 1945 but subsequently thtition was registered as a suit and an ex parte decree was pass against the rndent on June 29, l 946."}}, {"text": "District Judge, Nellore", "label": "COURT", "start_char": 48411, "end_char": 48434, "source": "ner", "metadata": {"in_sentence": "An appeal filed by the respondent to the District Judge, Nellore was also dismissed."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 48888, "end_char": 48915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 49319, "end_char": 49345, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "April 12, 1960", "label": "DATE", "start_char": 49446, "end_char": 49460, "source": "ner", "metadata": {"in_sentence": "By two registered deeds dated April 12, 1960 and May 26, 1961, the appellant leased out some of the properties to defendants 2 & 3 by the first deed and sold some of the properties to defendant 4 by the second deed."}}, {"text": "May 26, 1961", "label": "DATE", "start_char": 49465, "end_char": 49477, "source": "ner", "metadata": {"in_sentence": "By two registered deeds dated April 12, 1960 and May 26, 1961, the appellant leased out some of the properties to defendants 2 & 3 by the first deed and sold some of the properties to defendant 4 by the second deed."}}, {"text": "July 31, 1961", "label": "DATE", "start_char": 49675, "end_char": 49688, "source": "ner", "metadata": {"in_sentence": "The plaintiff/resIJondent filed a suit on July 31, 1961 before the District Munsiff, Nellore C for a declaration that the alienation made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the life-time of the widow."}}, {"text": "District Munsiff, Nellore C", "label": "COURT", "start_char": 49700, "end_char": 49727, "source": "ner", "metadata": {"in_sentence": "The plaintiff/resIJondent filed a suit on July 31, 1961 before the District Munsiff, Nellore C for a declaration that the alienation made by the widow Tulasamma were not binding on the plaintiff and could remain valid only till the life-time of the widow."}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 50146, "end_char": 50154, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "D Tulasamma", "label": "PETITIONER", "start_char": 50212, "end_char": 50223, "source": "ner", "metadata": {"in_sentence": "The suit was contested by the appellant D Tulasamma who denied the allegations made in the plaint and averred that by virtue of the provisions of thf11956 Act she had become the full owner of the prOperties with absolute right of alienation and the respondent had no locus standi to file the present suit.", "canonical_name": "D Tulasamma"}}, {"text": "Tulasan1ma", "label": "PETITIONER", "start_char": 50559, "end_char": 50569, "source": "ner", "metadata": {"in_sentence": "The learned Munsiff decreed the suit of the plaintiff holding that the appell1mt Tulasan1ma got merely a limited interest in the properties which could be enjoyed during her lifetime and that the alienations were not bind- E ing on the reversioner.", "canonical_name": "D Tulasamma"}}, {"text": "Nellore", "label": "JUDGE", "start_char": 50785, "end_char": 50792, "source": "ner", "metadata": {"in_sentence": "Tulasamma then filed an appeal before the District Judge Nellore, who reversed the finding of the Trial Court, allowed the appeal and dismissed the plaintiff's snit holding that the appellant Tulasamma had acquired an absolute interest in the properties by virtne of the provisions 0£ the 1956 Act."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 51077, "end_char": 51082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 51470, "end_char": 51475, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 51487, "end_char": 51507, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 51642, "end_char": 51650, "source": "regex", "metadata": {"statute": null}}, {"text": "Tufasamma", "label": "PETITIONER", "start_char": 51740, "end_char": 51749, "source": "ner", "metadata": {"in_sentence": "The High Court further held that by virtue 0£ the compromise the appellant Tufasamma got title to the properties for the first time and it was not a question of recognising a pre-existing right which she had none in view of the fact that her husband had died even before the Hindu Women's Right to Property Act, 1937.", "canonical_name": "D Tulasamma"}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 51954, "end_char": 51981, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 52211, "end_char": 52216, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "Hindn Succession Act, 1956", "label": "STATUTE", "start_char": 52225, "end_char": 52251, "source": "regex", "metadata": {}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 53344, "end_char": 53352, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 53370, "end_char": 53378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 53672, "end_char": 53680, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 53867, "end_char": 53873, "source": "ner", "metadata": {"in_sentence": "Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would on\\y be recognition of a pre-existing right and would not confer any new title on the window."}}, {"text": "Punjab", "label": "GPE", "start_char": 53875, "end_char": 53881, "source": "ner", "metadata": {"in_sentence": "Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would on\\y be recognition of a pre-existing right and would not confer any new title on the window."}}, {"text": "Calcutta", "label": "GPE", "start_char": 53883, "end_char": 53891, "source": "ner", "metadata": {"in_sentence": "Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would on\\y be recognition of a pre-existing right and would not confer any new title on the window."}}, {"text": "Patna", "label": "GPE", "start_char": 53896, "end_char": 53901, "source": "ner", "metadata": {"in_sentence": "Some High Courts, particularly, Bombay, Punjab, Calcutta and Patna have veered round to the view that a right of maintenance claimed by a Hindu widow is a pre-existing right and any instrument or document or transaction by which the properties are allotted to the widow in lieu of her maintenance would on\\y be recognition of a pre-existing right and would not confer any new title on the window."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 54434, "end_char": 54442, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa, Allahabad, Madras and Andhra Pradesh High Courts", "label": "COURT", "start_char": 54607, "end_char": 54663, "source": "ner", "metadata": {"in_sentence": "On the other hand the Orissa, Allahabad, Madras and Andhra Pradesh High Courts have tak; en a contrary view and have held that as the Hindu widow's right tQ maintenance is not a right to property, property allotted to her in lieu of maintenance confers on her a right or title to the property for 'the first time and therefore such conferment is protected bys."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 55164, "end_char": 55181, "source": "ner", "metadata": {"in_sentence": "Unfortunately, howeer, there is no decision of this Court which is directly in point, though there are some decisions which tend to support the view taken by\n\n1the Bombay High Court."}}, {"text": "Colebrooke", "label": "OTHER_PERSON", "start_char": 56226, "end_char": 56236, "source": "ner", "metadata": {"in_sentence": "Colebrooke in his book 'Digest of Hindu Law' Vol.", "canonical_name": "Colebrooke"}}, {"text": "Mahabharata", "label": "OTHER_PERSON", "start_char": 58424, "end_char": 58435, "source": "ner", "metadata": {"in_sentence": "II, quotes the Mahabharata at p. 121 thus : _ ."}}, {"text": "Colebfooke", "label": "OTHER_PERSON", "start_char": 58708, "end_char": 58718, "source": "ner", "metadata": {"in_sentence": "Again Colebfooke in his book Vol.", "canonical_name": "Colebrooke"}}, {"text": "MANU", "label": "OTHER_PERSON", "start_char": 58862, "end_char": 58866, "source": "ner", "metadata": {"in_sentence": "II at p. 123, while describing the circumstances under which the maintenance is to be given to the wife, quotes Manu thus :\n\n\"MANU :--Should a man have bnsiness abroad, Jet him assure a fit maintenance to his wife, and then reside for a time in a foreign country; since a wife, even thouglt virtuous, may be tempted to act amiss, if she be distressed by want of subsistence : ·\n\nWhile her husband, having settled her maintenance, resides abroad, let her continue firm in religious austerities; but if he leave no support, Jet her subsist by spinning and other blameless arts.\"", "canonical_name": "Manu"}}, {"text": "Yajnawalkya", "label": "OTHER_PERSON", "start_char": 59524, "end_char": 59535, "source": "ner", "metadata": {"in_sentence": "Colebrooke again quotes Yajnawalkya at p. 243 of his book Vol.", "canonical_name": "Yajnavalkya"}}, {"text": "Gopalchandra Sarkiir Sastri", "label": "OTHER_PERSON", "start_char": 60166, "end_char": 60193, "source": "ner", "metadata": {"in_sentence": "Similarly Gopalchandra Sarkiir Sastri dealing with the nature and incidents of the Hindu widow's right to maintenance observes in his treatise 'Hindu Law' at p. 533 thus : ·\n\n\"When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon, his property, this charge being a legal incident of her marital coownership in all her husband's property ...... But after his death, his widow's right of maintenance becomes limited to his estate, which, when it passes to any other heir, is charged with the same. . . . . . . . ."}}, {"text": "Snkrishna", "label": "OTHER_PERSON", "start_char": 62386, "end_char": 62395, "source": "ner", "metadata": {"in_sentence": "D\n\nThe father, the mother, the Guru (an elderly relation worthy of respect), a wife, an offspring, poor dependants, a guest, and a religious mendicant are declared to be the group of persons who are to be maintained.-Manu, cited in Snkrishna's commentary on the Dayabhaga, ii, 23."}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 62851, "end_char": 62857, "source": "ner", "metadata": {"in_sentence": "Similarly Sastri in his book quotes Yajnavalkya at p. 523 thus\n\n\"Property other than what is required for the maintenance of the family may be given.\"'"}}, {"text": "Mayne", "label": "OTHER_PERSON", "start_char": 67389, "end_char": 67394, "source": "ner", "metadata": {"in_sentence": "Similarly Mayne in his \"Treatise on Hindu Law & Usage\", 11th Edn.,"}}, {"text": "Mann", "label": "OTHER_PERSON", "start_char": 68461, "end_char": 68465, "source": "ner", "metadata": {"in_sentence": "H 'It is declared by Mann that the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds.\""}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 68895, "end_char": 68922, "source": "regex", "metadata": {}}, {"text": "Narada", "label": "OTHER_PERSON", "start_char": 69462, "end_char": 69468, "source": "ner", "metadata": {"in_sentence": "Furthermore, the anthor cites the passage of Narada cited in Smriti Chandrika regarding which there is no dispute."}}, {"text": "Smriti Chandrika", "label": "OTHER_PERSON", "start_char": 69478, "end_char": 69494, "source": "ner", "metadata": {"in_sentence": "Furthermore, the anthor cites the passage of Narada cited in Smriti Chandrika regarding which there is no dispute."}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 70396, "end_char": 70401, "source": "ner", "metadata": {"in_sentence": "Where, at the time of his death, he was a coparcener she is entitled to maintenance as against those who take her husband's share by survivorship,\"\n\nThe Hindu law is so jealous in guarding the interests of Hindu women that the obligation for maintaining the Hindu wbinen falls even on the King when he takes the estate by escheat or by forfeiture,\n\nSimilarly Mulla in his book \"Hindu Law\", 14th Edu.,"}}, {"text": "Right to Separate Maintenance and Residence Act", "label": "STATUTE", "start_char": 71225, "end_char": 71272, "source": "regex", "metadata": {}}, {"text": "April 23,\n\n1946", "label": "DATE", "start_char": 71355, "end_char": 71370, "source": "ner", "metadata": {"in_sentence": "We might further mention that the Hindu women's right to maintenance finally received statutory recognition and the entire law on the subject was consolidated and codified by the Hindu Married Women's Right to Separate Maintenance and Residence Act, 19~6-hereinafter to be referred to as 'the Act of 1946'-which came into force on April 23,\n\n1946."}}, {"text": "Kashinath Narayan", "label": "LAWYER", "start_char": 72571, "end_char": 72588, "source": "ner", "metadata": {"in_sentence": "These observations were reiterated in a later case in Narbadabai v, Mahadeo Narayan, Kashinath Narayan and Shamabai( 3).", "canonical_name": "Kashinath Narayan"}}, {"text": "Shamabai", "label": "JUDGE", "start_char": 72593, "end_char": 72601, "source": "ner", "metadata": {"in_sentence": "These observations were reiterated in a later case in Narbadabai v, Mahadeo Narayan, Kashinath Narayan and Shamabai( 3).", "canonical_name": "Shamabai"}}, {"text": "West", "label": "JUDGE", "start_char": 72627, "end_char": 72631, "source": "ner", "metadata": {"in_sentence": "The observations of West J., in Lakshman Ramchandra Joshi and Anr's case\n\n(supra) were fully 'approved by the Judicial Committee in Mst."}}, {"text": "Lakshman Ramchandra Joshi", "label": "OTHER_PERSON", "start_char": 72639, "end_char": 72664, "source": "ner", "metadata": {"in_sentence": "The observations of West J., in Lakshman Ramchandra Joshi and Anr's case\n\n(supra) were fully 'approved by the Judicial Committee in Mst."}}, {"text": "Anr", "label": "OTHER_PERSON", "start_char": 72669, "end_char": 72672, "source": "ner", "metadata": {"in_sentence": "The observations of West J., in Lakshman Ramchandra Joshi and Anr's case\n\n(supra) were fully 'approved by the Judicial Committee in Mst."}}, {"text": "Phear", "label": "JUDGE", "start_char": 73146, "end_char": 73151, "source": "ner", "metadata": {"in_sentence": "In the course of his judgment that learned judge quotes with approval the remark~ of Phear J., in Srimati Bhagabati v. Kanailal Mitter-(1872) 8 Ben."}}, {"text": "L.R. 6 I.A. 114", "label": "CASE_CITATION", "start_char": 73629, "end_char": 73644, "source": "regex", "metadata": {}}, {"text": "L.R. 73 I.A. 208", "label": "CASE_CITATION", "start_char": 73700, "end_char": 73716, "source": "regex", "metadata": {}}, {"text": "Jangi Jogi", "label": "OTHER_PERSON", "start_char": 75784, "end_char": 75794, "source": "ner", "metadata": {"in_sentence": "In Rani Bai v. Shi Yadunandan Ram & A nr, (') this Court, while dealing with a situation where a widow claimed the right of maintenance but refused to hand over possession of the property until she secured her proper maintenance, observed as follows :\n\n\"It cannot be disputed that the appellant who is the widow of a pre-deceased son of Jangi Jogi was entitled to receive maintenance so long as she did not re-marry out of the estate of her father-in-Jaw."}}, {"text": "India", "label": "GPE", "start_char": 76270, "end_char": 76275, "source": "ner", "metadata": {"in_sentence": "The courts in India have taken the view that where a widow is in posse,; sion of a specific property for the purpose of her maintenance a purchaser buying with notice of her claim is not entitled to\n\n(I) L.R. 63 I.A. 33."}}, {"text": "L.R. 63 I.A. 33", "label": "CASE_CITATION", "start_char": 76460, "end_char": 76475, "source": "regex", "metadata": {}}, {"text": "Jugli Bai", "label": "OTHER_PERSON", "start_char": 76956, "end_char": 76965, "source": "ner", "metadata": {"in_sentence": "Moreover she was presumably in possession of these properties in lieu of her right of maintenance and could not be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties.\""}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 77328, "end_char": 77347, "source": "ner", "metadata": {"in_sentence": "Elucidating the nature and extent of a right of a Hindu wife to maintenance, the Calcutta High Court pointed out in Sinath Das v.\n\nProbodh ChulU!er Das(') than the right of maintenance is really identified with the husband's property right though of a subordinate nature."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 77964, "end_char": 77981, "source": "ner", "metadata": {"in_sentence": "The position has been very succinctly stated and meticulously analysed by a decision of the Madras High Court in K. V. _Thangavelu v. The Court of Wards, Madras,(') where, dealing with the entire history of the matter and relying on various original texts of the Hindu jurists, the Madras High Court pointed out that a cogent ground for preferring the widow's claim is to be found in her qualified or subordinate co-ownership in the husband's property declared by the Mitakshara."}}, {"text": "Afjastamba", "label": "OTHER_PERSON", "start_char": 78446, "end_char": 78456, "source": "ner", "metadata": {"in_sentence": "The Court referred to verse 52 of Vyavaharadhaya (chapter II) where the Mitakshara refers to Afjastamba's Dharmasutra as follows :\n\n\"From marriage arises also jointness ( sahatwam) in the holding of property ( dravyaparagraphestiu) .\""}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 78727, "end_char": 78754, "source": "regex", "metadata": {}}, {"text": "Rani Bai", "label": "OTHER_PERSON", "start_char": 79918, "end_char": 79926, "source": "ner", "metadata": {"in_sentence": "This case was approved by this Court in Rani Bai's case (supra)."}}, {"text": "B. N.\n\nRan", "label": "OTHER_PERSON", "start_char": 84396, "end_char": 84406, "source": "ner", "metadata": {"in_sentence": "This Bill was preceded by a Hindu Code Committee headed by Mr. B. N.\n\nRan who had made a number of recommendations which formed the basis of the 1956 Act."}}, {"text": "Right to Property Act", "label": "STATUTE", "start_char": 86038, "end_char": 86059, "source": "regex", "metadata": {}}, {"text": "After independence the Parliament passed the Hindu Minority and Guardianship Act, 1956", "label": "STATUTE", "start_char": 86489, "end_char": 86575, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Adoptions and Maintenance Act, 1956", "label": "STATUTE", "start_char": 86581, "end_char": 86622, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Marriage Act, 1956", "label": "STATUTE", "start_char": 86628, "end_char": 86652, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 86720, "end_char": 86746, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 86792, "end_char": 86818, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 87133, "end_char": 87141, "source": "regex", "metadata": {"linked_statute_text": "The Hindu Succession Act, 1956", "statute": "The Hindu Succession Act, 1956"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 87168, "end_char": 87178, "source": "regex", "metadata": {"linked_statute_text": "The Hindu Succession Act, 1956", "statute": "The Hindu Succession Act, 1956"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 88289, "end_char": 88297, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 88533, "end_char": 88541, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14( 1)", "label": "PROVISION", "start_char": 88773, "end_char": 88782, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 89150, "end_char": 89158, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 89520, "end_char": 89525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 89894, "end_char": 89902, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 90017, "end_char": 90022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 90818, "end_char": 90823, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 91079, "end_char": 91084, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 91590, "end_char": 91595, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 92218, "end_char": 92226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 92568, "end_char": 92573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 92994, "end_char": 92999, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14( I)", "label": "PROVISION", "start_char": 93586, "end_char": 93595, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 94771, "end_char": 94776, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 95960, "end_char": 95968, "source": "regex", "metadata": {"statute": null}}, {"text": "Hukam Singh", "label": "PETITIONER", "start_char": 97346, "end_char": 97357, "source": "ner", "metadata": {"in_sentence": "v. Gauri Shanker & Another(') the facts were as follows :\n\nHukam Singh and Sukh Ram were two brothers.", "canonical_name": "Hukam Singh"}}, {"text": "Sukh Ram", "label": "OTHER_PERSON", "start_char": 97362, "end_char": 97370, "source": "ner", "metadata": {"in_sentence": "v. Gauri Shanker & Another(') the facts were as follows :\n\nHukam Singh and Sukh Ram were two brothers.", "canonical_name": "Sukh Ram"}}, {"text": "Chidda", "label": "PETITIONER", "start_char": 97390, "end_char": 97396, "source": "ner", "metadata": {"in_sentence": "Chidda, the second appellant was the son.", "canonical_name": "Chidda"}}, {"text": "Chidda", "label": "PETITIONER", "start_char": 97453, "end_char": 97459, "source": "ner", "metadata": {"in_sentence": "of Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint Hindu family governed by the Benares Sch_ool of Mitakshara Law.", "canonical_name": "Chidda"}}, {"text": "Hukam Singh", "label": "PETITIONER", "start_char": 97461, "end_char": 97472, "source": "ner", "metadata": {"in_sentence": "of Sukh Ram and thus Chidda, Hukam Singh and Sukh Ram were members of a joint Hindu family governed by the Benares Sch_ool of Mitakshara Law.", "canonical_name": "Hukam Singh"}}, {"text": "Krishna Devi", "label": "OTHER_PERSON", "start_char": 97625, "end_char": 97637, "source": "ner", "metadata": {"in_sentence": "Hukam Singh died in 1952 leaving behind his widow Krishna Devi."}}, {"text": "December 15, 1956", "label": "DATE", "start_char": 97642, "end_char": 97659, "source": "ner", "metadata": {"in_sentence": "On December 15, 1956, Krishna Devi sold half share of the house belonging to the joint family."}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 97985, "end_char": 98011, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 98382, "end_char": 98387, "source": "regex", "metadata": {"linked_statute_text": "The question raised was whether Krishna Devi acquired an absolute interest in the properties after coming into force of the Hindu Succession Act, 1956", "statute": "The question raised was whether Krishna Devi acquired an absolute interest in the properties after coming into force of the Hindu Succession Act, 1956"}}, {"text": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act", "label": "STATUTE", "start_char": 98586, "end_char": 98668, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 98722, "end_char": 98727, "source": "regex", "metadata": {"linked_statute_text": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act", "statute": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act"}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 98735, "end_char": 98755, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 99026, "end_char": 99033, "source": "regex", "metadata": {"linked_statute_text": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act", "statute": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 99174, "end_char": 99179, "source": "regex", "metadata": {"linked_statute_text": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act", "statute": "Shastric Hindu Law was wiped out by the legislative intent as expressed in the Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 99689, "end_char": 99694, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Shastric Law or the express words of C the Act", "label": "STATUTE", "start_char": 100380, "end_char": 100432, "source": "regex", "metadata": {}}, {"text": "Right to Property Act", "label": "STATUTE", "start_char": 101289, "end_char": 101310, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 101427, "end_char": 101432, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act", "statute": "Right to Property Act"}}, {"text": "S. S. Munnalal", "label": "OTHER_PERSON", "start_char": 102620, "end_char": 102634, "source": "ner", "metadata": {"in_sentence": "S. S. Munnalal's case and Sukhram's case (supra)."}}, {"text": "Sukhram", "label": "OTHER_PERSON", "start_char": 102646, "end_char": 102653, "source": "ner", "metadata": {"in_sentence": "S. S. Munnalal's case and Sukhram's case (supra).", "canonical_name": "Sukh Ram"}}, {"text": "Amin Chand", "label": "OTHER_PERSON", "start_char": 102984, "end_char": 102994, "source": "ner", "metadata": {"in_sentence": "Court in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives(') in which case Amin Chand and Lakhmi Chand were the owners of agricultural and non-agricultural properties.", "canonical_name": "Amin chand"}}, {"text": "Lakhmi Chand", "label": "OTHER_PERSON", "start_char": 102999, "end_char": 103011, "source": "ner", "metadata": {"in_sentence": "Court in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives(') in which case Amin Chand and Lakhmi Chand were the owners of agricultural and non-agricultural properties."}}, {"text": "Vidya Wanti", "label": "OTHER_PERSON", "start_char": 103686, "end_char": 103697, "source": "ner", "metadata": {"in_sentence": "Later, Subhrai Bai bequeathed the property in 1957 to her daughter Vidya Wanti.", "canonical_name": "Vidya Wanti"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 104019, "end_char": 104027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 104043, "end_char": 104051, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 104157, "end_char": 104177, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 104647, "end_char": 104655, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 105569, "end_char": 105577, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 105585, "end_char": 105611, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Jan. 21, 1969", "label": "DATE", "start_char": 105748, "end_char": 105761, "source": "ner", "metadata": {"in_sentence": "609of1965 decided on Jan. 21, 1969."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 105791, "end_char": 105796, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 106062, "end_char": 106067, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "Badri Parshad", "label": "OTHER_PERSON", "start_char": 106242, "end_char": 106255, "source": "ner", "metadata": {"in_sentence": "clearly held by this Court in Badri Parshad's case (supra).", "canonical_name": "Badri Pershad"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 106627, "end_char": 106632, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 106678, "end_char": 106683, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 106857, "end_char": 106865, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 106919, "end_char": 106927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 107052, "end_char": 107060, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 107205, "end_char": 107210, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 107246, "end_char": 107251, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 107317, "end_char": 107325, "source": "regex", "metadata": {"statute": null}}, {"text": "Natesan aooearing", "label": "OTHER_PERSON", "start_char": 107784, "end_char": 107801, "source": "ner", "metadata": {"in_sentence": "On the other hand Mr. Natesan aooearing for the resoondents submitted that the object of the proviso was to validate rather than disturb the past transactions which had placed certain restrictions or curbs on the power of a Hindu female and as the language of the proviso is very wide there is no warrant for not aoolying it to cases where pre-existin\" riohts are concerned .. In the altema_tiye, Mr. Natesan argued that the Hindu woman's right to maintenance is not a leeal right unless an actual charge is created in respect of the property and is, therefore."}}, {"text": "Krishna Murthv Iyer", "label": "OTHER_PERSON", "start_char": 108650, "end_char": 108669, "source": "ner", "metadata": {"in_sentence": "After considering various aspects of the matter we are inclined to agree with the contentions rnised by Mr. Krishna Murthv Iyer aonearjng for the appellant."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 109446, "end_char": 109454, "source": "regex", "metadata": {"statute": null}}, {"text": "Right to Property Act", "label": "STATUTE", "start_char": 109991, "end_char": 110012, "source": "regex", "metadata": {}}, {"text": "s. 14( 1)", "label": "PROVISION", "start_char": 110105, "end_char": 110114, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act", "statute": "Right to Property Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 110133, "end_char": 110138, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act", "statute": "Right to Property Act"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 110199, "end_char": 110207, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act", "statute": "Right to Property Act"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 111232, "end_char": 111240, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 16(2)", "label": "PROVISION", "start_char": 111251, "end_char": 111263, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 111869, "end_char": 111877, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 112877, "end_char": 112882, "source": "regex", "metadata": {"statute": null}}, {"text": "Prasad", "label": "OTHER_PERSON", "start_char": 112967, "end_char": 112973, "source": "ner", "metadata": {"in_sentence": "There can be no doubt that sub-s.' (2) of s. 14 is clearly a proviso to B\n\n~. 14(1) and this has been so held by this Court inBadri Prasad's case (supra)."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 113291, "end_char": 113296, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 113595, "end_char": 113600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 113685, "end_char": 113693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 114552, "end_char": 114560, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 114608, "end_char": 114616, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 115238, "end_char": 115246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 115405, "end_char": 115413, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14( 1)", "label": "PROVISION", "start_char": 115908, "end_char": 115917, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 115979, "end_char": 115987, "source": "regex", "metadata": {"statute": null}}, {"text": "B. B. Petti", "label": "OTHER_PERSON", "start_char": 116344, "end_char": 116355, "source": "ner", "metadata": {"in_sentence": "Jn this connection the sheet-anchor of the argument of the learned counsel for the appellant is the decisi011 of the Bombay High Court in B. B. Petti!"}}, {"text": "Devgonda", "label": "OTHER_PERSON", "start_char": 117124, "end_char": 117132, "source": "ner", "metadata": {"in_sentence": "In B. B. Patil v. Gangabai (supra) the facts briefly were that the properties in question were the self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the properties."}}, {"text": "Hira Bai", "label": "OTHER_PERSON", "start_char": 117161, "end_char": 117169, "source": "ner", "metadata": {"in_sentence": "In B. B. Patil v. Gangabai (supra) the facts briefly were that the properties in question were the self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the properties."}}, {"text": "Appa", "label": "OTHER_PERSON", "start_char": 117216, "end_char": 117220, "source": "ner", "metadata": {"in_sentence": "In B. B. Patil v. Gangabai (supra) the facts briefly were that the properties in question were the self-acquired properties of Devgonda and after his death in 1902 Hira Bai daughter-in-law of Devgonda (widow of his son Appa, who also died soon thereafter) came into possession of the properties."}}, {"text": "Nemgonda", "label": "OTHER_PERSON", "start_char": 117330, "end_char": 117338, "source": "ner", "metadata": {"in_sentence": "Disputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having been referred to the arbitrator he gave his award on October 16, 1903 and a decree in tenns of the award was passed on October 24, 1903."}}, {"text": "October 16, 1903", "label": "DATE", "start_char": 117439, "end_char": 117455, "source": "ner", "metadata": {"in_sentence": "Disputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having been referred to the arbitrator he gave his award on October 16, 1903 and a decree in tenns of the award was passed on October 24, 1903."}}, {"text": "October 24, 1903", "label": "DATE", "start_char": 117505, "end_char": 117521, "source": "ner", "metadata": {"in_sentence": "Disputes arose between Hira Bai and Nemgonda, the nephew of Devgonda, and the matter having been referred to the arbitrator he gave his award on October 16, 1903 and a decree in tenns of the award was passed on October 24, 1903."}}, {"text": "February 25, 1967", "label": "DATE", "start_char": 118128, "end_char": 118145, "source": "ner", "metadata": {"in_sentence": "Hira Bai continued to be in possession of these properties right upto February 25, 1967."}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 118542, "end_char": 118568, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14", "label": "PROVISION", "start_char": 119045, "end_char": 119050, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 119237, "end_char": 119242, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 119501, "end_char": 119509, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 120608, "end_char": 120613, "source": "regex", "metadata": {"statute": null}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 121517, "end_char": 121544, "source": "regex", "metadata": {}}, {"text": "section 14", "label": "PROVISION", "start_char": 122033, "end_char": 122043, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "Act", "label": "STATUTE", "start_char": 123027, "end_char": 123030, "source": "regex", "metadata": {}}, {"text": "Section 14(2)", "label": "PROVISION", "start_char": 123325, "end_char": 123338, "source": "regex", "metadata": {"linked_statute_text": "Right to Property\n\nAct", "statute": "Right to Property\n\nAct"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 123747, "end_char": 123755, "source": "regex", "metadata": {"linked_statute_text": "Right to Property\n\nAct", "statute": "Right to Property\n\nAct"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 123801, "end_char": 123809, "source": "regex", "metadata": {"linked_statute_text": "Right to Property\n\nAct", "statute": "Right to Property\n\nAct"}}, {"text": "Orissa and Madras High Courts", "label": "COURT", "start_char": 123868, "end_char": 123897, "source": "ner", "metadata": {"in_sentence": "The Court dissented from the contrary view taken by the Orissa and Madras High Courts on this question."}}, {"text": "Rights to Property Act 1937", "label": "STATUTE", "start_char": 124268, "end_char": 124295, "source": "regex", "metadata": {}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 124355, "end_char": 124380, "source": "ner", "metadata": {"in_sentence": "A similar view was taken by an earlier decision of the Andhra Pradesh High Court in Gadem Reddayya v. Varapula Venkararaju and Anr,. (')"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 124598, "end_char": 124606, "source": "regex", "metadata": {"linked_statute_text": "Rights to Property Act 1937", "statute": "Rights to Property Act 1937"}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 124747, "end_char": 124766, "source": "ner", "metadata": {"in_sentence": "In our oph:ion, this case correctly states the law on the subject, •\n\nIn Sumeshwar Mishra v. Swami Nath Tiwari, (') the High Court of Patna appears to have taken the same view, and in our opinion verJ correctly."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 124844, "end_char": 124860, "source": "ner", "metadata": {"in_sentence": "The Patna High Court differed from the decision of the Madras High Court in Thatha Gurunadhan Chetti v. Smt."}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 125425, "end_char": 125442, "source": "ner", "metadata": {"in_sentence": "Hanamangouda(') the Mysore High Court adopted the view of the Bombay High Court in B. B. Patil v.\n\nGangabai (supra) and dissented from the contrary view taken by the Madras and the Orissa High Courts."}}, {"text": "Madras and the", "label": "COURT", "start_char": 125571, "end_char": 125585, "source": "ner", "metadata": {"in_sentence": "Hanamangouda(') the Mysore High Court adopted the view of the Bombay High Court in B. B. Patil v.\n\nGangabai (supra) and dissented from the contrary view taken by the Madras and the Orissa High Courts."}}, {"text": "Orissa High Courts", "label": "COURT", "start_char": 125586, "end_char": 125604, "source": "ner", "metadata": {"in_sentence": "Hanamangouda(') the Mysore High Court adopted the view of the Bombay High Court in B. B. Patil v.\n\nGangabai (supra) and dissented from the contrary view taken by the Madras and the Orissa High Courts."}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 125691, "end_char": 125699, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 125794, "end_char": 125811, "source": "ner", "metadata": {"in_sentence": "The view of the Madras High Court and the Orissa High Court whlch was dissented from by E the Mysore High Court is, in our opinion, legally erroneous and must be overruled. ·"}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 125980, "end_char": 125997, "source": "ner", "metadata": {"in_sentence": "Hira Lal & Anr.(6) the Punjab High Court clearly held that application of s. 14(2) was limited to only those cases where a female Hindu acquired a title for the first time, for otherwise the property acquired in lieu of maintenance even though F conferring a limited estate fell clearly withln the ambit of explanation to s. 14 (!)"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 126031, "end_char": 126039, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 126279, "end_char": 126284, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab.High Court", "label": "COURT", "start_char": 126379, "end_char": 126396, "source": "ner", "metadata": {"in_sentence": "Thus the Punjab."}}, {"text": "Mysore", "label": "GPE", "start_char": 126453, "end_char": 126459, "source": "ner", "metadata": {"in_sentence": "High Court also fully favours the view taken by the Bombay, Patna, Mysore, Andhra Pradesh and other High Courts discussed above and has our full approval."}}, {"text": "Rights G to Property Act, 1937", "label": "STATUTE", "start_char": 126674, "end_char": 126704, "source": "regex", "metadata": {}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 127728, "end_char": 127745, "source": "ner", "metadata": {"in_sentence": "We fully agree with the view taken by the Kerala High Court in the aforesaid case."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 128197, "end_char": 128202, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 128406, "end_char": 128411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 128548, "end_char": 128556, "source": "regex", "metadata": {"statute": null}}, {"text": "S. Kachapalaya G11rukkal", "label": "OTHER_PERSON", "start_char": 129053, "end_char": 129077, "source": "ner", "metadata": {"in_sentence": "and we overrule the Division Bench decision in S. Kachapalaya G11rukkal's case (supra)."}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 129331, "end_char": 129339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 130012, "end_char": 130020, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras", "label": "GPE", "start_char": 130106, "end_char": 130112, "source": "ner", "metadata": {"in_sentence": "Reliance was .also placed on a Madras decision in Thatha Gurunadham Chetty v.\n\nThatha Navaneethamma (supra)."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 131370, "end_char": 131378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14( 1)", "label": "PROVISION", "start_char": 131589, "end_char": 131598, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 131722, "end_char": 131730, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh, Allahabad", "label": "COURT", "start_char": 132365, "end_char": 132390, "source": "ner", "metadata": {"in_sentence": "The other High Courts which have taken a contrary view are mainly the Andhra Pradesh, Allahabad and the Madras Hgh Courts."}}, {"text": "Madras Hgh Courts", "label": "COURT", "start_char": 132399, "end_char": 132416, "source": "ner", "metadata": {"in_sentence": "The other High Courts which have taken a contrary view are mainly the Andhra Pradesh, Allahabad and the Madras Hgh Courts."}}, {"text": "Jaganmohan Reddy", "label": "JUDGE", "start_char": 133158, "end_char": 133174, "source": "ner", "metadata": {"in_sentence": "Jaganmohan Reddy, C.J .. speaking for the Court observed as follows:\n\n(1) I.LR."}}, {"text": "section 14", "label": "PROVISION", "start_char": 134224, "end_char": 134234, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 135377, "end_char": 135405, "source": "ner", "metadata": {"in_sentence": "In our opinion, the High Court of Andhra Pradesh has proceeded on wrong premises."}}, {"text": "Gadam Reddayya", "label": "OTHER_PERSON", "start_char": 136030, "end_char": 136044, "source": "ner", "metadata": {"in_sentence": "Furthermore, this case does not appear to have noticed the previous Division Bench decision in Gadam Reddayya's case (supra) taking the contrary view, and on this ground alone the authority of this case is considerably weakened."}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 136380, "end_char": 136388, "source": "regex", "metadata": {"statute": null}}, {"text": "B High Court", "label": "COURT", "start_char": 137084, "end_char": 137096, "source": "ner", "metadata": {"in_sentence": "According to the B High Court, while a claim for maintenance simpliciter was not a right at all, the right to get a share in the husband's property under the Hindu Women's Right to Property Act, 1937 was a pre-existing right."}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 137239, "end_char": 137266, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 137562, "end_char": 137567, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "Natesan", "label": "JUDGE", "start_char": 137659, "end_char": 137666, "source": "ner", "metadata": {"in_sentence": "The decision of Natesan, J., in Gurunadham v. Sundrarajulu Chetty (supra) which had been affirmed by this judgment also appears to, have taken the same view and had fallen into the same error.", "canonical_name": "Natesan"}}, {"text": "Bombay High Ccurt", "label": "COURT", "start_char": 137939, "end_char": 137956, "source": "ner", "metadata": {"in_sentence": "Furthermore, the view of the learned Judge that on the interpretation given and the view taken by the Bombay High Ccurt which we have accepted, s. 14 is intended to override lawful terms in D contracts, bargains, bequests or gifts etc."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 137981, "end_char": 137986, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 138133, "end_char": 138138, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act, 1937", "statute": "Right to Property Act, 1937"}}, {"text": "Right to Property Act allotted to her before the passing of the Act", "label": "STATUTE", "start_char": 138755, "end_char": 138822, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 139454, "end_char": 139459, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act allotted to her before the passing of the Act", "statute": "Right to Property Act allotted to her before the passing of the Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 139589, "end_char": 139594, "source": "regex", "metadata": {"linked_statute_text": "Right to Property Act allotted to her before the passing of the Act", "statute": "Right to Property Act allotted to her before the passing of the Act"}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 139900, "end_char": 139908, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 140112, "end_char": 140117, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 140481, "end_char": 140501, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 141082, "end_char": 141090, "source": "regex", "metadata": {"linked_statute_text": "Hindu Succession Act", "statute": "Hindu Succession Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 141790, "end_char": 141795, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 142437, "end_char": 142445, "source": "regex", "metadata": {"statute": null}}, {"text": "Jammu & Kashmir High Court", "label": "COURT", "start_char": 142769, "end_char": 142795, "source": "ner", "metadata": {"in_sentence": "he Jammu & Kashmir High Court in Ajab Singh & Ors."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 143093, "end_char": 143098, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 143136, "end_char": 143141, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Hindu Succession Act 1956", "label": "STATUTE", "start_char": 143157, "end_char": 143190, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14", "label": "PROVISION", "start_char": 143571, "end_char": 143576, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Hindu Succession Act 1956", "statute": "Kashmir Hindu Succession Act 1956"}}, {"text": "Ajab Singh", "label": "OTHER_PERSON", "start_char": 143718, "end_char": 143728, "source": "ner", "metadata": {"in_sentence": "For these reasons we are not in a position to approve of the Full Bench decision of the Jammu & Kashmir High Court in Ajab Singh's case."}}, {"text": "High Courts of Bombay, Andhra Pradesh", "label": "COURT", "start_char": 143894, "end_char": 143931, "source": "ner", "metadata": {"in_sentence": "Thus on a careful scrutiny and analysis of the authorities discussed above, the position seems to be that tl:e view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, L:1jab, Calcutta B and Kerala to the effect that the widow's claim to maintonc.::ce, even though granted to her subject to certain restrictions, is covered by s. 14\n\n(1) and not by sub-s. (2) is based on the following premises:\n\n(1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property."}}, {"text": "Kerala", "label": "GPE", "start_char": 143971, "end_char": 143977, "source": "ner", "metadata": {"in_sentence": "Thus on a careful scrutiny and analysis of the authorities discussed above, the position seems to be that tl:e view taken by the High Courts of Bombay, Andhra Pradesh, Patna, Mysore, L:1jab, Calcutta B and Kerala to the effect that the widow's claim to maintonc.::ce, even though granted to her subject to certain restrictions, is covered by s. 14\n\n(1) and not by sub-s. (2) is based on the following premises:\n\n(1) That the right of a Hindu widow to claim maintenance is undoubtedly a right against property though not a right to property."}}, {"text": "s. 14", "label": "PROVISION", "start_char": 144107, "end_char": 144112, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Hindu Succession Act 1956", "statute": "Kashmir Hindu Succession Act 1956"}}, {"text": "Section 14(2)", "label": "PROVISION", "start_char": 144689, "end_char": 144702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 144742, "end_char": 144750, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 144871, "end_char": 144876, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 145110, "end_char": 145118, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras, Orissa, Andhra Pradesh Allahabad and Jammn & Kashmir High Courts", "label": "COURT", "start_char": 145733, "end_char": 145805, "source": "ner", "metadata": {"in_sentence": "The contrary view taken by the Madras, Orissa, Andhra Pradesh Allahabad and Jammn & Kashmir High Courts proceeds on the fol~ lowing grounds :\n\n."}}, {"text": "Right to Property Act, 1937", "label": "STATUTE", "start_char": 146472, "end_char": 146499, "source": "regex", "metadata": {}}, {"text": "Right to Property Act", "label": "STATUTE", "start_char": 146795, "end_char": 146816, "source": "regex", "metadata": {}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 149300, "end_char": 149308, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 149359, "end_char": 149367, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 149483, "end_char": 149488, "source": "regex", "metadata": {"statute": null}}, {"text": "Pa)ekar", "label": "JUDGE", "start_char": 149876, "end_char": 149883, "source": "ner", "metadata": {"in_sentence": "For these reasons and those given hereto before we choose to prefer the view taken by Pa)ekar, J., in B. B: Patil v. qangabai (s_npra) which appears to be more m consonance Wlth the ob1ect and spmt of\n\nthe 1956 Act.", "canonical_name": "Palekar"}}, {"text": "Natesan", "label": "LAWYER", "start_char": 150961, "end_char": 150968, "source": "ner", "metadata": {"in_sentence": "Lastly strong reliance was placed by Mr. Natesan counsel for the respondents on a decision of this Court in Smt.", "canonical_name": "Natesan"}}, {"text": "s. 14(2)", "label": "PROVISION", "start_char": 151411, "end_char": 151419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 152223, "end_char": 152231, "source": "regex", "metadata": {"statute": null}}, {"text": "Naraini Devi", "label": "OTHER_PERSON", "start_char": 152580, "end_char": 152592, "source": "ner", "metadata": {"in_sentence": "For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi's case (supra) was not correctly decided and js therefore."}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 153358, "end_char": 153366, "source": "regex", "metadata": {"statute": null}}, {"text": "Yajnavalkya", "label": "WITNESS", "start_char": 153836, "end_char": 153847, "source": "ner", "metadata": {"in_sentence": "of grace and generosity, but is a tangible right against property which flows from the spiritual relatiouship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu."}}, {"text": "Section 14(1)", "label": "PROVISION", "start_char": 154451, "end_char": 154464, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 154756, "end_char": 154761, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 154861, "end_char": 154869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 155010, "end_char": 155018, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 155118, "end_char": 155123, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 155473, "end_char": 155481, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 155828, "end_char": 155836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 156353, "end_char": 156361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 156548, "end_char": 156553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14(1)", "label": "PROVISION", "start_char": 156977, "end_char": 156985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 157317, "end_char": 157324, "source": "regex", "metadata": {"statute": null}}, {"text": "Tnlasamma", "label": "PETITIONER", "start_char": 157650, "end_char": 157659, "source": "ner", "metadata": {"in_sentence": "Applying the principles enunciated above to the facts of the present case, we find-\n\n(i) that the properties in suit were allotted to the appellant Tnlasamma on July 30, 1949 under a compromise certified by the' Court;\n\n(ii) that the appellant had taken only' a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties;\n\n(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and\n\n(iv) that the alienatious which she had made in 1960 and 1961 were after she had acquired an abwlnte interest in the properties.", "canonical_name": "D Tulasamma"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 158454, "end_char": 158459, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 158496, "end_char": 158501, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_26_32_EN", "year": 1977, "text": "COMMISSIONER OF INCOME TAX\n\nGUJARAT HI, AHMEDABAD & ANOTHER\n\nKURJI JINABHAI KOTECIIA\n\nFebruary 18, 1977\n\n[P. K. GOSWAMI AND JASWAN.T Sii; GH, JJ.]\n\nInco1ne Tax Act 1922-Section 24(1)(2)-Whether expenses incurred in carrying 011 illegal business to be deducted-Whether loss arising out of illegal business can be set off aKainst profits fro1n le::al business-Whether loss of\n\n' •\n\nillegal business can be1 carried forward to future years-lnterpreration of statutes-Whether, oupht to be consistent l1dth morality-Whether. io1Uinuation r of illegal activity to be recognised. l.....\n\n. Forward Contracts (Regulation) Act 1952-Sectlo~J 15(4)-lflegal con tracts-Effect of income tax law.\n\nThe assessee carries oo business of running Oil l\\.Hll anJ dealing in groundnuts, groundnut seeds . and oil, speculative business in groundnuts,_ groundnut oil and groundnut seeds, and speculation business in cotton errands etc. The l.T.0. disallo\\lled loss in forward contracts and groundnut oil, groundnuts and groundnut seeds .on the ground that it arose out of illegal contracts on account of the same being banned under section 15(4) of the Forward Contracts (Regulation) Act, 1952. The Appellate Assistant Commissioner on appeal confirmed the decision of the I.T.O. but bifurcated the loss into two headings, namely, loss incurred in hedging transactions in the banned items and loss incurred •in speculative transactions.\n\nOn second appeal, the Tribunal held that notwithstanding the illegality of the tran-sactions _ the loss could be set off and carried forward in accordance with the provisions of section 24(1) and 24(2) of the Income Tax Act, 1922. The Tribunal accoringly directed that the loss in hedging transactions of forw&rd business . in the banned contracts he set off against the other profits of the asses3ee for the relevant accounting year under section 24 ( 1) and that balance of Toss relating, to the speculative transactions in the banned contracts be carried forward to the following year under section 24(2) of the-Act to be set off against profit of the folTo\\\\-ing year from speculative business. On reference to the lligh Court, the High Court answered both the questions in favour of the assessee and upheld the judgment of the Tribunal. The High Court relied on its earlier judgment in the\n\ncrise of C.l.T. v. S.C. Kothari. ,\n\nAllowing the appeal by certificate,\n\nHELD: (I) The Joss icuITed-; in the hedging transa::tions cannot be set off against other profits in the previous year in view of the decision of this Court partly reversing the judgment of the High Court in the case of S.C. Kothari. [31C-D]\n\nCommissioner of Inco1ns.tax. v. S.C. Kothari, 69 ITR 1. applied.\n\n(2) It is admitted that the contract for specu!ation in the commodity in question is banned under the Forward Contracts (Regulation) Act 1952. To allow such a loss to be carried forward is to permit a benefit of adjustment of loss from an illegal business to spill over '.lnd continue in the fo1lo\\ving year even in a lawful speculative business. -The , Speculative business v.hich is car- !ied on in the foltowing year must be a business of _]awful speculation pertain 1nj! to thf\" t'lv.-fuJ end enforceable-- contracts.\n\nAn assesseecarrying on a lawful speculative business in the following year cannot derive benefit by carryin_g forward and setting off a loss from illegal speculative business of the earher year. Law will assume an illegal business to die out of existence with 3.tl itslosses to the assessee in the year of loss itself. The assessee can derive no benefit on account of the unlawful business in the following year. The matter will be different if a lawful speculative business after incurring loss is\n\nC.l.T. V. K. J. KOTECHA -- __ 21\n\ndiscontinued and Joss tbereuPOn is carried forward for set off ag_ainst any_ other A lawful speculative busines_s in the following year •. It is inconceivable that Jaw , can permit an illegal activity to be carried on from which a benefit could be\n\nobtained. . The concept of carry forward is not the san1e thing a<i the setting pff of loss in @. , Darticular illegal business against profit of that il1egal business fn a particula_r year. The two concepts have to be kept distinctly separate even in a taxing statute. It is true that by earning income from illegal trading . activity th_e business does not get tainted so far as exigibility to tax is concerned. \\Vhile computing income from illegal activity in a particular year all B losses incurred in earning that particular income are also taken into account for computation of real profits even in the illegal business.\n\nThere is a marked distinction between tHe computation of a partieu1:.lr year's profit from. illegl trading activity and carry forward of a loss to set it off against income in the subsequent years even.assuming that such illegal acvitity is continued against the. provisions of law.\n\nNo illegal activity can be perpetuated under 2.ny provisions of law nor benefit out of it. Law will mi.:; s its paramount object if it is not consistent with morality and any interpretation by courts cannot lead to a result \\\\'here continuation C)f illegal activity or benefit attached to it is C given rcognition. [31~-H. 32A-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 580 of 1972.\n\n(From the Judgment and Order dated 8-9-1970 of the Gujarat High Court in Income-tax Reference No. 9/68).\n\nB. B. Ahuja and R. N. Sachthey, for the Appellants.\n\nD K. L. Hathi and P. C. Kapoor, for the respondent.\n\nThe Judgment of the Court was delivered by GOSWAMI, J. This appeal by certificate is from the judgment of the Gujarat High Court in an Income-tax Reference under section 66(1) of the Indian Income-tax Act, 1922 (briefly the Act).\n\nThe two questions which were earlier referred by the Tribunal to the High Court at the instance of the Commissioner of Income-tax, Gujarat Ill, are as follows :-\n\n\" (2) Whether, on the facts and i~ the circumstances of the case, the assessee was entitled to set off hedging loss of Rs. 317 45 /- against other profits of the previous year?\n\n(2) Whether, on. the facts and in the circumstances of the\n\ncase, the assessee was entitled to carry forward the speculation loss of Rs. 41603/- to the next year?\"\n\nThe fo:lowing facts appear from the statement of case and the order of the Tribunal :\n\nThe assessment year In question is 1957-58 and the corresponding previous year is the Samvat year 2012. The assessee is carrying on business by running an oil mill, and also qoing business in sales and purchase of groundnuts, groundnut seeds and oil; speculation busin_ess in grvundnuts, groundnut oil and groundnut seeds; and speculat1n business in cotton, errands, etc.\n\nHis total income for the year m question was determined by the Income-tax Officer as Rs. 1,71,632/-.\n\nThis was after allowing set off of loss brought forward from the year 1955-56 amounting to Rs. 2,11,431/-. In arriving at the figure of the total income, the Income-tax Officer disallowed loss amounting to\n\nA Rs. 73,348/- in forward contract:s in groundnut oil, groundnuts and\n\ngroundnut seeds.\n\nHe disallowed this loss on the ground that it arose out. of illegal contracts on account o! the same being banned under ,._,-. sect10n 15 ( 4) of the Forward Contracts (Regulation) Act, l 952.\n\nIt will appear that the break-up of losses in the business of illegal forward contracts is as fol; ows :-\n\n(I ) Groundnut oil Account ( 2) Groundnut Account\n\n(3) Sin, c:lana (Groundnut seeds Account) at Yeraval\n\nRs. 49,664/- Rs. 22,522/-\n\nRs. 1,162/-\n\nTotal Rs. 73,348/-\n\nThe above third item of loss is arrived at by the Income-tax Officer after adjusting the profi: of the forward business in groundnut seeds at Rajkot.\n\nGn appeal by the asscssce the Appellate Assistant Commissioner affirmed the orcicr of the Income-tax Officer. The Appellate Assistant D Coinmissioner, however, bifurcated the loss ino two categories as fnllO\\VS :--\n\n(I) Los incurred in hedging transactions in the banncJ items Rs.33 ! .745/-\n\n(2) Loss incurred in speculative transactions (other than hedging transactions) in the banned items.\n\nRs. 41.603 1-\n\nTotal : Rs. 73,348/-\n\nThe Appellate Assistant Commissioner held that the assessee was not entitled to the set olt of the Joss against the asscssce's other business under section 24 ( 1 ) of the Act and also that such Joss could not be carried forward to the fo]owing year under section 24(2) of the Act.\n\nOn a second appeal by the assessee before the Appellate Tribunal, the Tribunal held that notwithstandring the illegality of the transactions the loss could be set off and carried forward in accordance with the provisions of section 24(1) and 24(2) respectively of the Act.\n\nThe Tribunal accordingly directed that the loss in hedging transactions of forward business in the banned contmots amounting to Rs. 31,745/- be set off against the other profits of the assessce for the relevant accounting year under section 24 (1) and that the balance loss of Rs. 41,603/- relating to the speculatiYe transactions in the banned contracts be carried forward to the following year under section 24(2) of the Act to be set off against profits of the following -year from speculative business.\n\nH As stated earlier at the instance of the Commissioner of Incometax, the two que:stios set out above were referred to the. High Court under section 66 ( 1) of the Act.\n\nThe High Court relyrng upon its\n\n' 1\n\n•earlier judgment in the Commissioner of Income-tax v.\n\nS. C.\n\nA Kothari(') answered both the questions in the affirmative in favour of tl1e asessee.\n\nThat. decision was, however, partly reversed by this Court. m the Comnuss1011er of Income-tax Gujarat v. S. C. Kothari(') (heremafter to be referred to as Kothari decision).\n\nThis Court held in the Kothari decision as follows :\n\n\". . . the taint of illegality of the business cannot detract B from the losses being taken into account for computation of the amount which can be subjected to tax as 'profits' under secllon 10(1) of the Act of 1922.\n\nThe tax collector cannot be heard to say that he will bring the gross receipts to tax.\n\nHe can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business\".\n\nThis Court, however, held that the High Court was in error in considering that any set off could be allowed in that case under the first JJroviso to section 24 (I) . This Court observed :\n\n\"The contract contemplated by Explanation 2 to the first proviso to section 24 (I) of the Income-tax Act, 1922, has to be an enforceable con:ract and not an unenforceable one by reason of any taint of illegality resdting in its invalidity.\n\nSet-off cannot be allowed under the first proviso to section 24( 1), read with Explanation 2 thereto, of losses in contracts which are illegal and unenforceable on account of contravention of Section 15 ( 4) of the Forward Contracts (Regulation) Act. 1952''.\n\nThis Court held the contracts in that case in respect of which the loss was incurred by the asscssee as illegccl contracts.\n\nIt also held that the asscssee was not entitled to a set off under the first proviso to section 24 ( l) of the Act of the loss against its profit in speculative transactions.\n\nJt, however, held that if the business in which the loss was sustained in that case was the same as the b.usincss in which the profit was derived then the loss had to be taken into account while computing the profits of the business under section 10 ( 2) of the Act.\n\nIn the view it took this Court remitted the matter to the High Court to decide the point which was not clear on the findings whether the profits and losses were incurred in the same business even though that business involved the entering into of contracts some of which were illegal.\n\nIn the present case there is no dispute that the losses were incurred in connection with forward contracts which were banned under section 15 ( 4) of the Forward Contracts (Regulation) Act.\n\nIt is also clear that the Income-tax Officer adjusted the profit against the loss with regard to the illegal business in groundnut seeds which was carried on in two places, Veraval and Rajkot.\n\nThis set off is permissible under section 10(2) of the Act because it is only by\n\n(I) 69 I.T.R, t,\n\n(2) 82 I.T.R. 794.\n\n30 SUPREME COU!lT REPORTS\n\n[J 9771 3 SC.R.\n\nsetting off of the loss of the particular business in groundnut seed~ that. true profit with regard to that particular business can be computed under section 10(2). There is, therefore, no reason to remit this case as the course earnestly suggested by Mr. Hathi for the respondent.\n\nIn Kothari decision (supra) it was observed by this Court while remitting the case that \"enough attention was not devoted to the buiness which the assessee was doing and in which the profit of Rs. 2,19,046/- was made and the loss of Rs. 3,40,4431was sustained''.\n\nSuch an uncertainty, however, is not present in the instant case. The submission of Mr. Hathi, therefore, cannot be accepted. '\n\nThe present case rests upon section 24 of the Act.\n\nThat section so far as material for our purpose reads as follows :-\n\n\"24 ( 1) Where any asses see sustains a loss of profits or gains in any year under any of the heads mentioned in section 6, he shall be entitled to have the amount of the loss set off against hlis income, profits or gains under any other head in that year :\n\nProvided that in computing the profits and gains chargeable under the head 'Profits and gains of business, profession or vocation, any loss sustained in specnfative transactions which are in the nature of a business shall not be taken into account except to the extent of the amount of profits and gains, if any, in any other business consisting of speculative transactions:\n\n(2) Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, in any business, profession or vocation, and the loss cannot be wholly set off under sub-section ( l), so much of the loss as is not so set off or the whole loss where the assesscc had no other head of income shal! be carried forward to the following year, and\n\n(i) where the loss was sustained by him in a busines's cOnsisting of speculative transactions, jt shall be set off only against the profits and gains, if any, of any business in epecnlative transactions carried on by him in that year;\n\n(ii) whether loss was sustained by him in any other business, profession or vocation, it shall be set off against the profits and gains, if any, or any business, profession or vocation carried on by him in that year, provided that the business, profession of vocation in which the loss was originally sustained continued to be carried on by him in that year; and\n\n___ __....,..\n\n(iii) if the loss in either case cannot he wholly so set off, the amount of loss not so set off shall be carried forward to the following year and so on but no loss shall be so carried forward for more than eight years\".\n\nx x x x\n\nIn the instant case there is no dispute about the following findings of facts\n\nThe assessee sustained losses in the relevant accounting year amounting to Rs. 73,348/-. This figure was arrived at on a legitimate computation under section 10(2) of the Act.\n\nNo further question survives for a recomputation of the income under section\n\n10(2) of the Act in this case.\n\nThe only question remains is as to whether the loss of Rs. 31.745/- can be set off against other profits in the previous year. This is the first question in the reference.\n\nThis question has to be answered in the negative in view of Kothari decision (supra) . The hedging Joss being in respect of a banned contract under section 15 ( 4) of the Forward Contracts (Regulation) Act, 1952, cannot be set off against the profits of other business of the previous year.\n\nThe second question is with regard to the assessee's claim for entitlement to carry forward the speculation loss of Rs. 41,603/- to :he next year.\n\nIt is also admitted that the contract for speculation in the commodity in question is banned under the Forward Contracts (Regulation) Act, 1952. It also appears that the said loss could not be set off in the previous year against profit in the same business i1t that year. The assessee contends that this Joss should be allowed to be carried forward under section 24(2) of the Act.\n\nTo allow such a claim is to permit a benefit of adjustment qf loss from an illegal business to spill over and continue in the [ollowing year even in a hiwful speculative business.\n\nA speculative business which is carried on in the following year must be a business of lawful speculation pertaining to lawful and enforceable contracts.\n\nThe assessee carrying on a lawful speculative business in the following year cannot derive benefit by carrying forward and setting off a loss from an illegal speculative business of the earlier year.\n\nLaw will assume an illegal business to die out of existence with all its losses to the assessee in the year of loss itself.\n\nThe assessee can derive no beneJit on account of the unlawful business in the following year.\n\nThe matter will be different if a lawful speculative business after incurring Jo'ss is discontinued and loss therefrom is carried forward for set off against any other lawful speculative business in the following y.ear.\n\nThis is the true legal effect of section 24(2) (i) of the Act in this case.\n\nIt is inconceivable that law can perm; t an illegal activity to be carried on from which a benefit could be obtained.\n\nThe concept of carry forward is not the same thing as the setting off of loss in a particular illegal business against profit of thitt illegal business in a particular year.\n\nThe two concepts have to he kept distinctly separate\n\nevn in a taxing statute .. There is no express. arrant for the subniission either under section 20(2) or under any other provision of the Act, far less on general principles.\n\nIt is true that by earning income from illegal trading activity the income does not get tainted so far as exigibility to tax 1s concerned.\n\nWhile computing income from illegal actidty in a particular year all lo.sses incurred in earning that particular income are also taken into a:count for computation of real profifs even in .the illegal business.\n\nThat does not mean that fines imposed on the illegal activities detected, prosecuted and punished or other.vise penalised, will be taken into account for ascertainment of real profits.\n\nThe.re is, tr.erefore, a marked distinction between computation of a particular year's. profit from illegal trading activity and carry forward of a loss to set it oil against income~ in subsequent years even /assuming that such illegal activity is continued against the provisions of law. No illegal activity can be perpetuated under any provisions of law nor benefit out of it.\n\nLaw will miss its paramount object if it is not consistent with morality and any interpretation by courts cannot read to a result where continuation of illegal activity or benefit attached to it is given recognition.\n\nThe second question, therefore, must b~ answered in the negative and against the assssee. '\n\nIn the result the judgment of the Hi6h Court is set aside and the t\\VO questions set aut abo.ve are ans\\\\'ered in the negative and in favour E of the Department.\n\nThe appeal is allowed with costs.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 55, "entities": [{"text": "COMMISSIONER OF INCOME TAX\n\nGUJARAT HI, AHMEDABAD & ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX GUJARAT III, AHMEDABAD & ANOTHER", "offset_not_found": false}}, {"text": "February 18, 1977", "label": "DATE", "start_char": 86, "end_char": 103, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME TAX\n\nGUJARAT HI, AHMEDABAD & ANOTHER\n\nKURJI JINABHAI KOTECIIA\n\nFebruary 18, 1977\n\n[P. K. GOSWAMI AND JASWAN.T Sii; GH, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 106, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Tax Act 1922", "label": "STATUTE", "start_char": 156, "end_char": 168, "source": "regex", "metadata": {}}, {"text": "Section 24(1)(2)", "label": "PROVISION", "start_char": 169, "end_char": 185, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1922", "statute": "Tax Act 1922"}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 583, "end_char": 617, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 15(4)", "label": "PROVISION", "start_char": 1109, "end_char": 1122, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1922", "statute": "Tax Act 1922"}}, {"text": "Forward Contracts (Regulation) Act, 1952", "label": "STATUTE", "start_char": 1130, "end_char": 1170, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 24(1) and 24(2)", "label": "PROVISION", "start_char": 1592, "end_char": 1615, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1623, "end_char": 1643, "source": "regex", "metadata": {}}, {"text": "section 24", "label": "PROVISION", "start_char": 1854, "end_char": 1864, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "section 24(2)", "label": "PROVISION", "start_char": 2008, "end_char": 2021, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "S.C. Kothari", "label": "OTHER_PERSON", "start_char": 2603, "end_char": 2615, "source": "ner", "metadata": {"in_sentence": "Allowing the appeal by certificate,\n\nHELD: (I) The Joss icuITed-; in the hedging transa::tions cannot be set off against other profits in the previous year in view of the decision of this Court partly reversing the judgment of the High Court in the case of S.C. Kothari. ["}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 2794, "end_char": 2828, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 5409, "end_char": 5420, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey, for the Appellants."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5425, "end_char": 5439, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey, for the Appellants."}}, {"text": "D K. L. Hathi", "label": "LAWYER", "start_char": 5462, "end_char": 5475, "source": "ner", "metadata": {"in_sentence": "D K. L. Hathi and P. C. Kapoor, for the respondent."}}, {"text": "P. C. Kapoor", "label": "LAWYER", "start_char": 5480, "end_char": 5492, "source": "ner", "metadata": {"in_sentence": "D K. L. Hathi and P. C. Kapoor, for the respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 5558, "end_char": 5565, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GOSWAMI, J. This appeal by certificate is from the judgment of the Gujarat High Court in an Income-tax Reference under section 66(1) of the Indian Income-tax Act, 1922 (briefly the Act)."}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 5677, "end_char": 5690, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 5698, "end_char": 5725, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 7260, "end_char": 7294, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rajkot", "label": "GPE", "start_char": 7718, "end_char": 7724, "source": "ner", "metadata": {"in_sentence": "73,348/-\n\nThe above third item of loss is arrived at by the Income-tax Officer after adjusting the profi: of the forward business in groundnut seeds at Rajkot."}}, {"text": "section 24", "label": "PROVISION", "start_char": 8307, "end_char": 8317, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(2)", "label": "PROVISION", "start_char": 8415, "end_char": 8428, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(1) and 24(2)", "label": "PROVISION", "start_char": 8666, "end_char": 8689, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 8949, "end_char": 8959, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(2)", "label": "PROVISION", "start_char": 9118, "end_char": 9131, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66", "label": "PROVISION", "start_char": 9365, "end_char": 9375, "source": "regex", "metadata": {"statute": null}}, {"text": "Kothari", "label": "OTHER_PERSON", "start_char": 9781, "end_char": 9788, "source": "ner", "metadata": {"in_sentence": "This Court held in the Kothari decision as follows :\n\n\". . ."}}, {"text": "section 24", "label": "PROVISION", "start_char": 10412, "end_char": 10422, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 10520, "end_char": 10530, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 10542, "end_char": 10562, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 24( 1)", "label": "PROVISION", "start_char": 10746, "end_char": 10760, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 10885, "end_char": 10895, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 10908, "end_char": 10942, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 24", "label": "PROVISION", "start_char": 11166, "end_char": 11176, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "section 10", "label": "PROVISION", "start_char": 11493, "end_char": 11503, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "section 15", "label": "PROVISION", "start_char": 11939, "end_char": 11949, "source": "regex", "metadata": {"statute": null}}, {"text": "Forward Contracts (Regulation) Act", "label": "STATUTE", "start_char": 11962, "end_char": 11996, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Veraval", "label": "GPE", "start_char": 12172, "end_char": 12179, "source": "ner", "metadata": {"in_sentence": "It is also clear that the Income-tax Officer adjusted the profit against the loss with regard to the illegal business in groundnut seeds which was carried on in two places, Veraval and Rajkot."}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 12227, "end_char": 12240, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 12507, "end_char": 12520, "source": "regex", "metadata": {"statute": null}}, {"text": "Hathi", "label": "OTHER_PERSON", "start_char": 12613, "end_char": 12618, "source": "ner", "metadata": {"in_sentence": "There is, therefore, no reason to remit this case as the course earnestly suggested by Mr. Hathi for the respondent."}}, {"text": "section 24", "label": "PROVISION", "start_char": 13061, "end_char": 13071, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 13267, "end_char": 13276, "source": "regex", "metadata": {"statute": null}}, {"text": "31st day of March, 1940", "label": "DATE", "start_char": 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profession or vocation, and the loss cannot be wholly set off under sub-section ( l), so much of the loss as is not so set off or the whole loss where the assesscc had no other head of income shal!"}}, {"text": "section 10(2)", "label": "PROVISION", "start_char": 15326, "end_char": 15339, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n10(2)", "label": "PROVISION", "start_char": 15422, "end_char": 15436, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 15784, "end_char": 15794, "source": "regex", "metadata": {"statute": null}}, {"text": "Forward Contracts (Regulation) Act, 1952", "label": "STATUTE", "start_char": 15807, "end_char": 15847, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Forward Contracts (Regulation) Act, 1952", "label": "STATUTE", "start_char": 16179, "end_char": 16219, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, 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{"document_id": "1977_3_312_326_EN", "year": 1977, "text": "BUSCHlNG SCHMITZ PRIVATE LTD. v.\n\nP. T. MENGHANI AND ANR.\n\nMarch, 17, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]\n\n/11tcrprctatiou of statute-Legislature can be assunied 1101 to intend obvious literal interpretation resulting into obscurity-Whether statute can be mocked at-Section 4(1)(c), Delhi Rent Control Act 1958- Sec. 14, 14A, 25B-Delhi Rent Control Ordinance 24 of 1975-Delhi Rent Control (Amendment) Act, 1976-/(iglit of Govenunent Offu; er who i's asked to racate Govenunent accom- 111odation to evict his tenant.-Whether can apply to preniises let out for com- 1nercial purpose-What is residential purpose-Triable is.sues-Meaning of.\n\nThe respondent No. 1 landlord let out his building to the appellant, a company to carry on business and use part of it for its manager's residence.\n\nThe landlord was occupying residential premises allotted by the Central Govern_ment.\n\nAfter the amendment of the Delhi Rent Control Act, 1958, by OrCh nance 24 of 1975 which was later replaced by Delhi Rent Control (Amen<tment) 1\\ct, 1976, section 14A and 25B were added to the Statute. Section 14 permits a landlord to evict the tenant if the premises let for residential purpose are required bonafide by the landlord for occupation as a residence for him.self or for any member of hip family dependent upon him. Section 14A provides that where a landlord is in occupation of any residential accommodation allotted to him by the Central Gnvemment or any local authority and if he is required by order made by that Government or authority to vacate such residential accom~\n\nmodation our the ground that he owns in the Union Territory of Delhi a residential accommOOation either in his own name or in the name of his wife or dependent child, there shall accrue to the landlord a right to recover immew diately possession of any premises let out by him. The said provision has been given effect notwithstanding anythlng to the contrary in the Delhi Rent Act or any other law or the, custom or usage..\n\nSection 25B provides for a summarY remedy.\n\nIt prnvides that the Controller shall give to the1 tenant leave to contest the application if the, affidavit filed by' the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in section 4(1)(c) or 14A.\n\nThe respondent was directed by the Government to vacate the Government accommodation on the ground that he had let out residential accon1modation of which he was owner. The respondent No. 1 accordingly filed eviction proceedings against the appellant claiminf:.': possession under Section\n\n14A. 'fhe appellant contended before the Rent Control1er that the ground did D.ot fall within the sweep of section 14A since the. premises were let out for residential-cum-commercial purposes to a joint Stock Company which was carrying on business besides using it forr the residence of its Managing Director. This plea did not cut ice with the Controller who refused leave to contest. The appellant filed a writ petition in the High Court under Art. 226 of the Constitution which was dismissed.\n\nTn appeal by special leave, the appellant contended that\n\n1. Nothing in s.14A compels the landlord to occupy the premises after evicting the tenant.\n\nHe could still let it for a higher rent take on lease from the private sector a sn1a1l house and make <i gain' from the difference flowing in rent. ~\n\n2. The Controller could not shut him out from being heard if a triable issue emerged from the affidavit in opposition.\n\nIn the prsent case such issues were present and, therefore, the Rent Controller was not justified in refusing leave to contest.\n\n3. Section 14A does not apply in the present case since the premises were not residential premises as they were let out both for commercial and residential purposes.\n\nBUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 313 (Krishna !yet, J.)\n\nDismissing the appeal,\n\nHELD : (I) It is fallacious to approximate section 25B(5) with Order 37 rule 3 f the Code of Civil Procedure. The social setting de1nan<ling summary proceeding, the. nature of the subject matter and above all, the Jegislati\\'e diction which has been deliberately designed, differ in the two provisions.\n\nDisclosure of facts which disentitle recovery of possession is a sine qua non for grant of leave.\n\n[320F-A, 321A]\n\n(2) The definition of premises in section 2(i) covers any building or part of the building leased for use, residential, commercial or other. To attract section 14A the landlord must be in occupation of residential pfemises allott\"d to him by the Central Government. He must be required by order of that Gove1nment to vacate his residential accommodation.\n\nThe Delhi Development Authority granted the land to respondent No. 1 for construction of a residcritial building although it \\Vas let out for commercial purpose. Residential premises are not only plots which are let out for residential purposes nor do all kinds of structures where humans may manage to dwell are residential.\n\nUse or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential use, even by making son1e changes, can be designated residential premises.\n\nOnce it is residential in the liberal sense, section 14A stands attracted.\n\nIn the present case the house was built on land iiven for constructing a residence, is being used even now for residence is suitable otherwise for residence and is being credibly demanded for the re:pondenfs residence.\n\nResidential suitability being the basic consideration, the. building is residential.\n\nThe 'purpose test' \\\\'ill enable officers who 0¥/n houses to defeat the statute that they do not own residential premises though it was sutably built for residence. The scheme of section 14A definitely contemplates a specific representation from landlord to the Controller that because he has been ordered to vacate the pre~ mises where he is residing he requires immediate possession for his occupation.\n\nIt's non-obstante clause, the vesting of a right to in1mediate recovery, the creation of a summary process and the package of connected provisions all (n1pha size that the amendments. have to be viewed as a \"''hole. that the court cannot be fooled and the statute mocked at.\n\nThe c<1usc of action is not only th~ Government orders to vacate but consequential urgency to recover his own building.\n\nParliament cannot be assumed not to intend the obvious, or to inenJ th: ludicrous.\n\nLiterality is not right where obscurity is the result. {321 C-D. G-H\n\n322 C-D. 323 A-B, G-H]\n\nGillespie Brothers & Co. Ltd. v. Roy Bowles Transport Ltd. [1973] 1 Q.B. 400 quoted in 39' Mod. L.R. 379 (1976) and Anderson v. Abbott 321 US 349 at 366-67 quoted in Univ. of Pennsylvenia Law Review Vol. 117\n\n(1968) p.\n\nI. 63, quoted with approval.\n\n(3) Judicial machinery •.vhile enforcing the law shall forbid its being misused.\n\n[325 E]\n\n( 4) The possibility of the power of Government to issue orders to vacate being used discriminately should be carefully avoided. If exceptions are niade in the case of bi.g officers, naturally the middling and the lesser minions of Government may have a grievance. It n1ay perhaps be proper for Government when allotting_ good premises. for high officers who made fron1 their O\\\\'Il houses large returns to pay into the Government coffers some equitable part of the G gain so made, giving consideration to circumstances like Joane;, investmenti;; and\n\nthe like.\n\n[325 G-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 81 of 1977.\n\n(Appeal by Special Leave from the Judgment and Order dated 6-12-1976 of the Delhi High Court in C. R. No. 248/76).\n\nF. S. Nariman, N. S. Sistani and K. C. Dua for the appellant.\n\nK. K. Jain, S. K. Jain and P. Dayal, for respondent No. 1.\n\nA The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Delhi, the home of Power and the nidus of paradoxes, presents many pathological problems to the students of history, social science, politics and law, often inter-acting with each other.\n\nWe are here concerned with the socio-legal malady of accommodation scarcity and the syndrome of long queues of government employees waiting, µot knowing for how long, for allotment of government quarters at moderate rents and the co-existence of several wellto-do officers enjoying, by virtue of their office, State-allotted residential accommodation while owning their own but letting them out at lucrative rents, making substantial incomes in the bargain.\n\nThe law awoke to eind this unhappy development and to help the helpless nonallottces get government accommodation.\n\nSuch is the back-drop to s. l 4A which, read along with s. 25B, of the Delhi Rent Control Act, 1958 (Act LIX of 1958) (for short, the Act), falls for our consideration in the present appeal by special leave.\n\nA deeper understanding of the need for the new provisions just mentioned and the construction that they bear in the context necessitates stating a little more in detail the social setting. The seat of the capital of a vast country with varied activities naturally will be honeycombed with government offices, public organisations and growing armies of employees.\n\nThe higher echelons in public service, over the decades, have made generous use of the availability of government lands at low prices and of the know-how of utilising, to their advantage, the immense developmental potential in the years ahead if buildings were constructed with foresight.\n\nThus mny neatly organised colonies blossomed all around Delhi whose owners were in many instances officers who had the telescopic faculty to see the prospective c ; ireadout of Delhi of the future.\n\nTaking time by the forelock, they wisely invested money (often on. soft loans from Government) in buildings which secured ambitious rnnts when India's headquarters did, as it was bound to, explosively expand.\n\nMost of such officials let their premises for high rents to big businessmen, foreign establishments, company executives and others of the'r ilk.\n\nWhere did the officers themselves reside ? The strange advantage of Delhi is that houses, with lawns, servants' quarters and other amenities, built by government long years back are allotted to goverµment servants on rents which are a fraction of what similar accommodation in the private sector may fetch oftentimes.\n\nThe bigger officials according to the hierarch; cal system (almost perfected into some sort of official castes and sub-castes based on status and position in the mi, nistries and not on the heads of their families or office) occupied the classified quarters, the official 'brahmins', of course, getting the best.\n\nThe rents they paid as tenants were negligible compared to the returns they made as landlords.\n\nIndeed, a sociological research into the whole system may perhaps unravel the semi-survival of quasifeudal life-styles and the unlovely phenomenon of public servants paying little and collecti, ng large.\n\nH The socio-economic sequel was worse t'han this.\n\nAn stronomical increase in the number of government servants Jed to a terrific pressure for accommodation because, most of them-particularly at lhe lesser\n\nBUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 315 (Krishna Iyer, !.) levels-had no worthwhile salaries and were priced out of the private A sector where rentals had unconscionably rocketed. This rack-renting abuse can be checked, in some measure, by an activist policy of relentlessly enforcing fair rents through penal tags. That, of course, depends on the will and wisdom of Parliament and Government, and the court may not make any comment. Anyway, currently, controls in this essential area of human accommodation, in the capital city of our socialist republic, are a statute-book virtue.\n\nSimilarly, the B suggestion, in the course of his submissions, made by counsel for the appellants, that the true solution is for the State to build more accommodation for its servants and not eject tenants like his client is commendable as a text book panacea but 'a consummation to be wished' in practical expectations !\n\nNevertheless, the State took cognizance of the sinister develop- C ment of several officers owning private residences and occupying government premises and making handsome dividends out of the d!Sparity in rents and, ergo, a large nnmber of less fortunate officials having to wait in a queue for years hoping against hope that some day some government quarters would be allotted ! These latter, with broken domestic budgets, huddle together in small private te, nements (or even servants' quarters) paying rents beyond their means.\n\nThe politics D and economics of scarcity are we;] known.\n\nOut of this distressing situation was born s. 14A of the Act.\n\nA f'asciculus of clauses creating substantive and procedural provisions to meet the evil and advance the scheme in that behalf came in, first by ordinance 24 of 1975 in December 1975, duly replaced by the Delhi Rent Control (Amendment) Act, 18 of 1976.\n\nThe chronic disease needed drastic treatment and the legislative draftsmen E created a chain of stiff provisions.\n\nSpeaking generally, the government, after satisfying itself about the official having let out his reisidential building and occupying officially allotted quarters, directed the person to vacate government premises but he had quickly to get back his own house.\n\nSo a new right ( s. 14A) was created, accelerated remedial procedures were prescribed (s. 25A and 25B). This appeal turns on the meaning of s. 14A.\n\nThe purpose of the project has been explained by Chandrachud J. in Sarwan Singh(') :\n\n\"The object of Section 14A, as shown by its marginal note, is to confer a right on certain landlords to recover immediate possession of premises' belonging to them and which are in the pilssession of their tenants. n the significant language of the marginal note, such a right is 'to accrue' to a class of persons. The same concept is pursued and clarified in the body of Section 14A by providing that in the contingencies mentioined in the section, a right will accrue to the landlord 'to recover immediately possession of any premises let out by him' ... \"\n\n* * • •\n\n\"Whatever be the merits of that philosophy, the theory H is that an allottee from Central Government or a local\n\n(I) Sarw>n Singh v. Kasturi Lal, A.LR. 1977 S.C. 265, 272.274.\n\nauthority should not be at the mercy of law's delays while being faced with instant eviction by his landlord save on payment of what in practice is penal rent.\n\nFaced with a Robson's choice, to quit the official residence or pay the market rent for it, the allottee had in turn to be afforded a quick and expeditious remedy against his own tenant. With that end in view it was provided that nothing, not even the Slum Clearance Act, shall stand in the way of the allottee from evictng his tenant by resorting to the summary procedure prescribed by Chapter IHA.\n\nThe tenant is even deprived of the elementary right of a defendant to defend a proceeding brought against him, save on obtaining leave of the Rent Controller. If 1he leave is refused, by section 25B ( 4) the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord is entitled to an order for eviction. No appeal or second appeal lies against that order. Section 25B(8) denies that right and provides \\nstead for a revision to the High Court whose jurisdiction is limited to finding out whether the order complained of is according to law.\"\n\nD It is a notorious fact that, vesting a right is long years' distance away from getting the remedy, thanks to our legal process with its slow motion mood.\n\nA jurisprudence of quick-acting and comprehensive remedies, demanding re-structuring and streamlining of the judicative apparatus and imparting operational speed and modernisation of the whole adjectival law and practice, is urgent and important-an observation we make hoping that Parliament will programme for such E a constructive change for the good of the community, in consultation with the Court and the Bar.\n\nThat legal instrumentality alone truly sustains the rule of law which delivers justice with inexpensive colority, finality and fullness.\n\nThe big right-remedy gap is the bane of our system.\n\nWe regard it our duty to mention this dime 1nsion of justice a, nd this desideratum of systemic reform so that repetitive Litanies to end law's delays may be intelligently heeded by the law-makers ins- F tead of joining the chorus against the court.\n\nBack to the statute.\n\nSection 14-A, with a non-obstante rider, follows upon and is partly supplemental to s. 14 which primarily governs eviction by landlords of tenants.\n\nWe may extract a part of s. 14 and the whole of s. 14A :\n\n\"14(1) Notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant :\n\nProvided that the Controller may, on an application made to him in the prescribed manner make an order for H the recovery of possession of the premises on one or more of the following grounds only, namely,-\n\n(a) to (d) * * * *\n\n. -\n\nBUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 317 (Krishna Iyer, J.) ( e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependeint\n\non him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :\n\nExplanation.-For the purposes of this clause, \"premises let for residential purposes, includes any premises Which having been let for use as a residence arc, without the consent of the landlord, used incidentally for commercial or other purposes, .... \"\n\nx x x x\n\n\"l 4A. Right to recover immediate possession of premises to accrue to certain persons.-\n\n( 1) Where a landlord who, being a person in occupation of a, ny residential premises allotted to him by the Central\n\nGovernment or any local authority is required, by, or in D pursuance of any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the g, round that he owns, in the union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwith- E standing anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him :\n\nProvided that nothing in this section shall be construed as conferring a right Oj11 a landlord owning, in the union territory of Delhi two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover.\n\n(2) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract, custom or usage to the contrary, where the landlord exercises the right of recovery conferred qn him by sub-section (1), no compensation shall be payable by. him to the tenant or any person claiming through or under him and no claim for such compensation shall be entertained by any court, tribunal or other authority :\n\nProvided that where the landlord had received,-\n\n(a) any rent in advance from the tenant, he shall, within a period of ninety days from the da, te of recovery of possession of the premises by him, refnnd to the tenant such amount as represents the rent payable for the unexpired portion of the contract, agreement or lease;\n\n(b) any other payment, he shall, within the period aforesaid, refund to the tenant a sum which shall bear the same proportion to the total amount so received, as the unexpired portion of the, contract or agreement, or lease bears to the total period of contract or agreement or lease;\n\nProvided further that, if any default is made in making any refund as aforesaid, the landlord shall be liable to pay simple interest at the rate of six per cent per annum on the amount which he has omitted, or failed to refund.\"\n\nA summary remedy is provided by s. 25B which reads :\n\n\"25.B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.-\n\n( i) Every applicati~ by a landlord for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14, or under Section 14A, shall be dealt with in accordance with the procedure specified in this section.\n\n(2) The Controller shall issue summons, in relation to every application referred to in sub-section ( 1), in the form specified in the Third Schedule.\n\n(3) (a) The Controller shall, in acquisition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain.\n\n(b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received 'Jack with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of snmmons. '\n\n• -\n\nBUSCHING SCHMITZ (P)LTD. V. P. T. MENGHANI 319 (Krishna Iyer, J.) ( 4) The tenant on whom the summons is dully served (whether in the ordinary way or by registered post) in the form specied in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an aJfidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be committed by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.\n\n(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (a) of the proviso to sub-section (1) of Section 14, or under Section 14A.\n\n(6) Where leave is granted to the tenant to contest the D application, the Controller shall commence the hearing of the application as early as practicable.\n\n(7) Notwithstanding anything contained in sub-section\n\n(2) of Section 17, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, in- E eluding the recording of evidence.\n\n(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section;\n\nProvided that the High Court may, for the purpose of sati'sfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.\n\n(9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XL VIX of the first Schedule to the Code of Civil Procedure, 1908\n\n(5 of 1908).\n\n(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause ( e) of the proviso to sub- H section (1) of Section 14, or under Section 14A, shl\\ll be the same as the procedure for the disposal of applications by\n\nControllers.\"\n\nA The landlord-respondent no. 1 wa's a government servant who 'had let !Us own building to the appellant-tenant (a company) to carry ou busmess and use part of it for its manager's residence.\n\nHe himself was occupying residential premises allotted by the Central Govern- 'T ment and, since Jie was directed by that Government to vacate, on the ground that he had let out 'residential accommodation' of which B he was own.er, he _'sought .refuge uuder s. 14A.\n\nThe eviction proceedm~ ; vas resisted, inter alw, on the score that the ground did uot fall w1thm the sweep of s. 14A, the premises 'havina been Jet out for a residential-cum-commercial purpose to a joint stck company which was carrying ou its business .... besides using it for the residence of its Managing Director'.\n\nThis plea did not cut ice with the Controller who refused leave to contest under s. 25B(4l of the Act. The 1efusal c would ordinarily have led to an order i'or eviction but this consequence was intercepted by a writ petition uuder Art. 226 of the Constitution and a revision to the High Court, a's provided by th~ proViso to subs. ( 8) of s. 25B of the Act.\n\nDismissal of these proceedings has\n\n\"' brought the appellant, special leave having been granted, to this Court as the last hope.\n\nOf course, the issue is of some moment, legally and otherwi'se.\n\nFor while solving the twin problems, viz., making more D accommodation available to government servants in need and ending the vice of officers gaining by letting their own residential houses, s. 14A \" creates another, viz., the ejectment of tenants by summary procedure on a new ground.\n\nMaybe, as between the two hardships Parliament has made the ch, oice and the Court implements the law based on the\n\n'II policy deci'sion of the legislature. Mr. Nariman sought to expose the weakness of this legislative policy by stating that nothing in s. 14A E compelled the officer-landlorc! to occupy the premises after evicting • the tenant.\n\nHe could still let it for a higher rent, take on lease from the private sector a small house and make a gain flowing froni the difference in rents.\n\nWhile we, as Judges, cannot fail to apply the provision merely because dubious ingenuitieS can circumvent it, we will later interpret the section eliminating the possible evil pointed out.\n\n'-\"f\n\nF The short but insistent submission made by the counsel for the appellant was that tlJe Controller could not shut him out from being >- heard, as he did, if only a triable issue emerged from the affidavit-inopposition filed under s. 25B(4). Such an issue (in fact, more than one) was obviously present here, urged counsel.\n\nBut we make it plain even at this stage that it is fallacious to approximate (as was sought • G to be done) s. 25B(5) with Order 37, r. 3 of the Code of Civil Procedure.\n\nThe social setting demanding summary proceeding, the nature of the subject-matter and, above all, the legislative diction which has - been deliberately designed, differ in the two provisions.\n\nThe legal ' ambit and judicial discretion are wider in the latter while, in the former with which we are concerned, the scope for opening the door to defence >- is narrowed down by the strict words used.\n\nThe Controller's power . ( H to give leave to contest is cribbed by the condition that the 'affidavit filed by the tenant discloses such facfs as wouli dis.entitle the landl.ord from obtaining an order for the recovery of possess10n of the premises on the ground specified in cl. ( e) of the proviso to sub-s. (1) of s. 14\n\n-~. ,\n\nBUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI\n\n32 I (Krishna Iyer, J.) or under s. 14A. Disclosure of facts which disentitle recovery of A possession is .a sine qua mm for grant of leave.\n\nAre there facts disentitling the invocation of s. 14A?\n\nThe thrust of Shri Nariman's contention is that s. 14A does not apply at all, as a matter of construction of the expression 'residential premises'. This is net something factual but essentially legal B and perhaps the question deserves our decision. For, if we explain, as declaratory of the law, what the true scope of s. 14A is, vis a vis the premises involved, the Controller may then proceed on that footing and decide whether there is any fact disclosed which disentitlcs eviction.\n\nLet us break down s. 14A, to the basic components_ creative of c the new right to recover possession of premises let to a tenant. 'Premises', by definition, covers any building or part of a building let for use, residential, commercial or other (s. 2(i)). We confine ourselves to the considerations relevant to our case.\n\nTo attract s. 14A, the landlord must be in occupation of 'residential premises' allotted to him by the Central Government.\n\nHe must be required by order of that Government to vacate such 'residential accommodation'.\n\nD These are fulfilled here.\n\nThe ground for such order to vacate must be 'that he owns, in the Union Territory of Delhi, a residential accommodation'. If so, there accures to such landlord the right 'to recover immediately possession of any premises let out by him' ( emphasis added).\n\nThe bone of contention between the parties is as to whether the E premises let out are 'residential accommodation'.\n\nIt may be a pursuit of subtle nicety to chase the reason for using different expressions like 'residential premises' and 'residential accommodation' in the sante section. If at all, 'accommodation' is ampler than 'premises'.\n\nWhat is residential accommodation ? If the building in dispute answers that description, the tenant must 'submit to eviction.\n\nSo this is the key question.\n\nAdmittedly, the building was let out for commercial purpose also.\n\nIs the purpose of the lease decisive of the character of the accommodation? For a long itme it was used as an office of the tenant's business, the manager also residing in a part thereof. Docs user clinch the issue ?\n\nAt present, the main use to which the building is put is as residence of G the manager.\n\nThe Delhi Development Authority granted the land to the government servant-respondent for construction of a residential building although he later let it out for non-residential use, apparently for getting large rent_s, silencing his compunction about the basis on which he secured the allotment of the land at low cost.\n\nBut can the court H conclude from the object of the land assignment whether the building later put up is residential or not ? Marginal relevance there may. be in these diverse factors, telling value they do not possess. Law, bemg\n\n6-436SCI/77\n\npragmatic, responds to the purpcise for which it is made, cognises the current capabilities of technology and life-style of the community and flexibly fulfils the normative role, taking the conspectus of circumstances in the given case and the nature of the problem to solve which the statute was made.\n\nLegislative futility is to be ruled out so long as interpretative possibility permits.\n\nResidentiality depends for its sense on th~ conte1't and purpose of the statute and the project promoted.\n\nGuided by this project-orinted approach, we reject .the rival ex- . treme positions urged before us by Shri Nariman and Shri Jain. Residential premises are not only these which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell. If a beauhful bungalow were let out to a businessman to run a show-room or to a meditation group or music society for meditational or musical uses, it remains none-the-less a residential accommodation. Otherwise, premises may one day be residential, another day commercial and, on yet a later day, religious. Use or purpose of the letting is no conclusive test.\n\nLikewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazars cannot make them residential premises.\n\nThat is a case of reductio ad absurdum.\n\nEngineering skills and architectural designing have advanced far enough to make multi-purpose edifices and, by minor adaptations, make a buildi11g serve a residential, commercial or other use. The art of building is no longer rigid and the character of a -house is not an 'either or'. It can be both, as needs demand. It iS so common to see a rich home turned into a business house, a dormitory into a factory.\n\nMany smallCscale industries are run in former living quarters. To petrify engineering concepts is to betray the law's purpose.\n\nWhatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'.\n\nAnd once it is 'residential' in the liberal sense, s. 14A stands attracted.\n\nDictionary meaning, commonsense understanding and architectural engineering concur in the correctness of this construction.\n\nWhat falls outside the ambit of 'residential purposes' may be limited but not non-existent.\n\nA shop in Connaught Place, a factory in an area prescribed by any municipal regulation for residential use or any sthlcture too patently non-residential such as a hothouse for botanical purposes or a bath and toilette or teashop by the road margin are obvious instances.\n\nWe may visualise other cases but that is not our purpose here.\n\nThe house we are considering was built on land given for constructing a residence is being used even now for residence, is suitable otherwise for residence and is being credibly demanded for the respondent's residence. Residential suitability being the basic consideration, this building fills the bill.\n\nNothing said in the affidavit-in-opposition puts it out of the pale of residential accommodation.\n\nA building which reasonably accommodates a residen-\n\n--\\-.\n\nBUSCHING SCHMITZ (P) LTD. V. P. T. MENGHANI 323 (Krishna Iyer, J.)\n\ntial user is a residential accommodation-nothing less, nothing else.\n\nThe circumstances of the landlord are not altogether out of place in reaching a right judgment.\n\nThe 'purpose test' will enable officers who own houses to defeat the government by pleading that they do not own 'residential premises' because the lease is for commercial use, built though it was and suitable though it is, for residence. Similarly, the 'possibility test' may make nonsense of the provision.\n\nThe contrast in the phraseology betweens. 14(1) (e) and s. 14A strengthens our inference. The legislature has, in the former provision, used the expression 'premises let for residential purposes', thus investing the\n\npurpose of the lease with special significance.\n\nThe deliberate omission of such words in s. 14A and, instead, the use of the flexible but potentially more comprehensive, though cryptic, expression 'residential accommodation' cannot be dismissed as accidental.\n\nShri Nariman argued that the court must have the power to consider whether the order of the government stating that the government servant's building is residential, is valid or no.t.\n\nWe do not deny that in the last resort it i's within the Court's province to do so.\n\nBnt it must give due-not deadly-weight to the decision of the government that the premises owned by its officer is residential. Perversity and mala {ides will, of course, invalidate government orders here, as elsewhere. They are the exceptions but as a practical guideline, the government's order may be taken as correct.\n\nFor, after all, while courts must finally pronounce, others familiar with the work-aday world and enquire before passing orders are not too inexpert or incompetent to be brushed aside.\n\nThe power to render binding decisions vests in the judicial process, not because it is infallible or occult but because it Is habitually independent and professionally trained to consider contending view points aided by counsel for a adversaries.\n\nThe humility that makes for wisdom behoves the judge to show respect for-not obedience to-the view of an administrative agency.\n\nThere remains the conundrum raised by Shri Nariman. Supposing the landlord, after exploiting the easy process of s. 14A, re-lets the premises for a higher rent; the social goal boomerangs because the tenant is ejected and the landlord does not occupy, as he would have been bonnd to do, if he had sought eviction for bona fide occupation under s. 141(e). Section 19 obligates the landlord in this behalf.\n\nIn literal terms, that section does not apply to eviction obtained under s. 14A. But the cheme of that section definitely contemplates a\n\necific representation by the petitioner-landlord to the Controller that because he has been ordered to vacate the premises where he is residing, therefore he requires immediate possession for his occupation.\n\nThe non-obstante clause, the ve'sting of a right to immediate recovery, the creation of a summary process under s. 25B and the package of connected provisions, a:u emphasize that the amendments have to be viewed as a whole, that the Court cannot be fooled and the stafute mocked at.\n\nThe law, as Mr. Bumble (in Oliver Twist) said. 'is a ass-a idiot', but today the socio-economic project cannot be frustrated by legalistics. Underlying the whole legislative plan and provision is the fundamental anxiety to recover, for the officers occupation, his own premises.\n\nOnce we grasp this cardinal point, the\n\nA officer's application for eviction under s. 14A can be entertained oniy on his averment that he, having been asked to vacate, must get into possession of his own.\n\nFor instance, if he has a vacant house of his own and, on getting an order to vacate, he moves into his vacant house, he cannot thereafter demand recovery under s. 14A.\n\nThe cause of action is not only the government order to vacate, but his consequential urgency to recover his own building.\n\nThat is the B ra~<onale legis. To interpret otherwise is to vindicate Mr. Bumble l We hold that Shri Nariman's apprehension is unfounded and s. 14A is largely a rider to s. 14 and the condition indicated in s. 19 must, mutatis mutandis, bind the landlord.\n\nParliament cannot be assumed not to intend the obvious, or to intend the ludicrous. Literality is\n\nnot right where absurdity is the result. ·\n\nThe same result is reached by reading into every application for eviction by a landlord a necessarily implied representation to court that for the reason of his being directed to get out he must be given possession of his own residence for his own occupation with the aid of the judicial process. If the finale is reached and possession obtained, the Court will not allow a party to reduce its process to a mere make. believe, or a clever parody, breaking faith with the judicial process itseif.\n\nSuch paths can be interdicted by the use of the inherent power of the court.\n\nThe re-letting to someone else or non-occupation, even after a reasonable time or without reasonable cause, will be regarded as an abuse of the process of the court and, at the instance of the affected tenant or otherwise, the eviction order cancelled and possession restored.\n\nWe affirm this legal position Jest overly cute but qualmless landlords should hopefully hoax the court and reduce its decree to a joke.\n\nEvery tribunal has the inherent power to prevent its machinery from being made a sham, thereby running down the rule of law itself as an object of public ridicule.\n\nIt will and must prove any strategem self-defeating if a party indulges in making the law the langhing stock, for, the court will call him to order.\n\nWe are not adventuring into any innovation of legal principle in inhibiting unconscionability in the enforcement of rights.\n\nLord Denning M. R. said :\n\n\"What is the justification for the courts in this or any other case, departing from the ordinary meaning of words ?\n\nIf you examine all the cases you will, I think, find that at bottoll) it _is because the clause (relieving a man from his own negligence) ls unreasonable or is being applied unreasonably in the circumstances of the particular case.\n\nThe judges have then, time after time, sanctioned a departure from the ordinary meaning ...... Are the courts then powerless ?\n\nAre they to permit the party to enforce his unreasonable clause, even when it is nnconscionable, or applied so unreasonably as to be nnconscionable ? When it ets to this point, I would say, as I said many years ago : 'There is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused.' \"\n\nx x x x x\n\nBUSCH!NG SCHMITZ (P) LTD. V. P. T. MENGHANI (Krishna Tyer, !.) He continued :\n\n\"I know that the judges hitherto have never confessed openly to the test of reasonableness. But it has been the driving force behind many of the decisions.\"(')\n\nWe agree that, in the words of Lord Erskine, 'there is no branch of the jurisdiction of this couft more delicate than that, which goes to restrain the exercise of a legal right'.\n\nBut the principle of unconscionability clothes the court with the power to prevent its process being rendered a parody.\n\nThe justice of the law steps in end, in the area of eviction 0£ a tenan~ by a landlord, the tribunal cannot tolerate double-dealing or thwarting the real intendment of the statute.\n\nThe same conclusion can be reached through another line of reasoning expressed by Justice Jackson of the Supreme Court of the United States in D' Cench Duhme: (2 )\n\n\"If the judicial power is helpless to protect a legislative\n\nprogram from schemes for easy avoidance, then indeed it has D become a handy implement of high finance. . . . Once the purpose or effect of the scheme is clear, once the legislative policy is plain, we would indeed forsake a great tradition to say we were helpless to fashion the instruments for appropriate relief.\"\n\nThe doctrine that the judicial machinery, while enforcing the law, E shall forbid its being misused is another dimension of two deeply rooted, but inter-connected maxims.\n\nActus curiae neminem gravabit (An act of the court shall prejudice no man : J enk. Cent. 118) and Actus legis est damnosus (The act of the law is hurtful to no one : 2 Inst. 287) : Actus legis nemini facit in-juriam (The act of the law docs injury to no one : 5 Coke. 116).\n\nThis principle is fundamental to any system of justice and applies to our jurisprudence.\n\nAn Aftnword\n\nThe possibility of the power of government to issue orders to vacate being used discriminatorily should be carefully avoided.\n\nIf exceptions are made in the case of big officers, naturally the middling and the lesser minions of government may have a grievance.\n\nIt .may perhaps be proper if government, when allotting good premises for high officers who make from thair own houses large returns by way o[ rentals, makes them pay into government coffers some equitable part of the gain so made, giving consideration to circumstances like loans, investments and the like.\n\nThis, again, is a matter falling with-\n\n(0 39 Mod. L.R. 379 (1976)\n\n(2) Referred to in 318 U.S. 366, at 366-67; Quoted in Univ. of Pennsylvania Law Review Vol. 117 (1968) p. I, 63.\n\nA in the province of the sense of justice of the Administration.\n\nBut\n\nwe mention it only to save the legislation from the aspersion of invidiousness in the exercise of the power.\n\nIn the view we have already taken, it follows that the appeal must be dismissed and we hereby do so; but the parties, in the circumstances, will bear their own costs throughout.\n\nP.H.P.\n\nAppeal dismissed. '", "total_entities": 110, "entities": [{"text": "BUSCHlNG SCHMITZ PRIVATE LTD", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "BUSCHING SCHMITZ PRIVATE LTD", "offset_not_found": false}}, {"text": "P. T. MENGHANI AND ANR", "label": "RESPONDENT", "start_char": 34, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "P. T. MENGHANI AND ANR", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 77, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "V.R. 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T. MENGHANI", "label": "JUDGE", "start_char": 3869, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "V. P. T. MENGHANI 313 (Krishna !", "canonical_name": "P. T. MENGHANI AND ANR"}}, {"text": "Krishna !", "label": "JUDGE", "start_char": 3889, "end_char": 3898, "source": "ner", "metadata": {"in_sentence": "V. P. T. MENGHANI 313 (Krishna !", "canonical_name": "KRISHNA IYER"}}, {"text": "section 25B(5)", "label": "PROVISION", "start_char": 3975, "end_char": 3989, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 37 rule 3", "label": "PROVISION", "start_char": 3995, "end_char": 4010, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 4013, "end_char": 4040, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 2(i)", "label": "PROVISION", "start_char": 4385, "end_char": 4397, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 4503, "end_char": 4514, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Development Authority", "label": "ORG", "start_char": 4711, "end_char": 4738, "source": "ner", "metadata": {"in_sentence": "The Delhi Development Authority granted the land to respondent No."}}, {"text": "section 14A", "label": "PROVISION", "start_char": 5258, "end_char": 5269, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 5774, "end_char": 5785, "source": "regex", "metadata": {"statute": null}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 7668, "end_char": 7681, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, N. S. Sistani and K. C. Dua for the appellant."}}, {"text": "N. S. Sistani", "label": "LAWYER", "start_char": 7683, "end_char": 7696, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, N. S. Sistani and K. C. Dua for the appellant."}}, {"text": "K. C. Dua", "label": "LAWYER", "start_char": 7701, "end_char": 7710, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, N. S. Sistani and K. C. Dua for the appellant."}}, {"text": "K. K. Jain", "label": "LAWYER", "start_char": 7731, "end_char": 7741, "source": "ner", "metadata": {"in_sentence": "K. K. Jain, S. K. Jain and P. Dayal, for respondent No."}}, {"text": "S. K. Jain", "label": "LAWYER", "start_char": 7743, "end_char": 7753, "source": "ner", "metadata": {"in_sentence": "K. K. Jain, S. K. Jain and P. Dayal, for respondent No."}}, {"text": "P. Dayal", "label": "LAWYER", "start_char": 7758, "end_char": 7766, "source": "ner", "metadata": {"in_sentence": "K. K. Jain, S. K. Jain and P. Dayal, for respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 7837, "end_char": 7849, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-Delhi, the home of Power and the nidus of paradoxes, presents many pathological problems to the students of history, social science, politics and law, often inter-acting with each other.", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 8673, "end_char": 8679, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 8688, "end_char": 8716, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 9822, "end_char": 9827, "source": "ner", "metadata": {"in_sentence": "soft loans from Government) in buildings which secured ambitious rnnts when India's headquarters did, as it was bound to, explosively expand."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 11225, "end_char": 11237, "source": "ner", "metadata": {"in_sentence": "V. P. T. MENGHANI 315 (Krishna Iyer, !.)", "canonical_name": "KRISHNA IYER"}}, {"text": "Parliament", "label": "ORG", "start_char": 11551, "end_char": 11561, "source": "ner", "metadata": {"in_sentence": "That, of course, depends on the will and wisdom of Parliament and Government, and the court may not make any comment."}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 12725, "end_char": 12731, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 13392, "end_char": 13398, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25A and 25B", "label": "PROVISION", "start_char": 13462, "end_char": 13476, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 13515, "end_char": 13521, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 13573, "end_char": 13584, "source": "ner", "metadata": {"in_sentence": "This appeal turns on the meaning of s. 14A.\n\nThe purpose of the project has been explained by Chandrachud J. in Sarwan Singh(') :\n\n\"The object of Section 14A, as shown by its marginal note, is to confer a right on certain landlords to recover immediate possession of premises' belonging to them and which are in the pilssession of their tenants."}}, {"text": "Sarwan Singh", "label": "OTHER_PERSON", "start_char": 13591, "end_char": 13603, "source": "ner", "metadata": {"in_sentence": "This appeal turns on the meaning of s. 14A.\n\nThe purpose of the project has been explained by Chandrachud J. in Sarwan Singh(') :\n\n\"The object of Section 14A, as shown by its marginal note, is to confer a right on certain landlords to recover immediate possession of premises' belonging to them and which are in the pilssession of their tenants."}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 13625, "end_char": 13636, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 13982, "end_char": 13993, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 14261, "end_char": 14279, "source": "ner", "metadata": {"in_sentence": "The same concept is pursued and clarified in the body of Section 14A by providing that in the contingencies mentioined in the section, a right will accrue to the landlord 'to recover immediately possession of any premises let out by him' ... \"\n\n  • •\n\n\"Whatever be the merits of that philosophy, the theory H is that an allottee from Central Government or a local\n\n(I) Sarw>n Singh v. Kasturi Lal, A.LR."}}, {"text": "section 25B", "label": "PROVISION", "start_char": 15105, "end_char": 15116, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25B(8)", "label": "PROVISION", "start_char": 15341, "end_char": 15355, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 16565, "end_char": 16575, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 16649, "end_char": 16654, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 16739, "end_char": 16744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 16762, "end_char": 16768, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 17285, "end_char": 17297, "source": "ner", "metadata": {"in_sentence": "V. P. T. MENGHANI 317 (Krishna Iyer, J.) ( e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependeint\n\non him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :\n\nExplanation.-For the purposes of this clause, \"premises let for residential purposes, includes any premises Which having been let for use as a residence arc, without the consent of the landlord, used incidentally for commercial or other purposes, .... \"\n\nx x x x\n\n\"l 4A. Right to recover immediate possession of premises to accrue to certain persons.-\n\n( 1) Where a landlord who, being a person in occupation of a, ny residential premises allotted to him by the Central\n\nGovernment or any local authority is required, by, or in D pursuance of any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the g, round that he owns, in the union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwith- E standing anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him :\n\nProvided that nothing in this section shall be construed as conferring a right Oj11 a landlord owning, in the union territory of Delhi two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover.", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 20605, "end_char": 20611, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 20898, "end_char": 20908, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 20919, "end_char": 20930, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 21148, "end_char": 21162, "source": "regex", "metadata": {"statute": null}}, {"text": "BUSCHING SCHMITZ", "label": "JUDGE", "start_char": 22233, "end_char": 22249, "source": "ner", "metadata": {"in_sentence": "• -\n\nBUSCHING SCHMITZ (P)LTD.", "canonical_name": "BUSCHING SCHMITZ (P) LTD"}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 22430, "end_char": 22444, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 23279, "end_char": 23289, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 23300, "end_char": 23311, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 23534, "end_char": 23544, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 24371, "end_char": 24400, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 14", "label": "PROVISION", "start_char": 24606, "end_char": 24616, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "Section 14A", "label": "PROVISION", "start_char": 24627, "end_char": 24638, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 25179, "end_char": 25185, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 25299, "end_char": 25305, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 25848, "end_char": 25854, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 26256, "end_char": 26262, "source": "regex", "metadata": {"statute": null}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 26513, "end_char": 26520, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman sought to expose the weakness of this legislative policy by stating that nothing in s. 14A E compelled the officer-landlorc!"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 26605, "end_char": 26611, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B(4)", "label": "PROVISION", "start_char": 27275, "end_char": 27284, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B(5)", "label": "PROVISION", "start_char": 27477, "end_char": 27486, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27510, "end_char": 27537, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 28255, "end_char": 28260, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 28347, "end_char": 28353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 28503, "end_char": 28509, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 28560, "end_char": 28566, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 28832, "end_char": 28838, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 29018, "end_char": 29024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(i)", "label": "PROVISION", "start_char": 29246, "end_char": 29253, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 29333, "end_char": 29339, "source": "regex", "metadata": {"statute": null}}, {"text": "Jain", "label": "OTHER_PERSON", "start_char": 31889, "end_char": 31893, "source": "ner", "metadata": {"in_sentence": "treme positions urged before us by Shri Nariman and Shri Jain."}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 33387, "end_char": 33393, "source": "regex", "metadata": {"statute": null}}, {"text": "Connaught Place", "label": "GPE", "start_char": 33641, "end_char": 33656, "source": "ner", "metadata": {"in_sentence": "A shop in Connaught Place, a factory in an area prescribed by any municipal regulation for residential use or any sthlcture too patently non-residential such as a hothouse for botanical purposes or a bath and toilette or teashop by the road margin are obvious instances."}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 35032, "end_char": 35038, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 35283, "end_char": 35289, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 36724, "end_char": 36730, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 141(e)", "label": "PROVISION", "start_char": 36955, "end_char": 36964, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 36966, "end_char": 36976, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 37090, "end_char": 37096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B", "label": "PROVISION", "start_char": 37476, "end_char": 37482, "source": "regex", "metadata": {"statute": null}}, {"text": "Bumble", "label": "OTHER_PERSON", "start_char": 37664, "end_char": 37670, "source": "ner", "metadata": {"in_sentence": "The law, as Mr. Bumble (in Oliver Twist) said. '"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 38011, "end_char": 38017, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 38295, "end_char": 38301, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 38569, "end_char": 38575, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 38598, "end_char": 38603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 38635, "end_char": 38640, "source": "regex", "metadata": {"statute": null}}, {"text": "Denning M. R.", "label": "OTHER_PERSON", "start_char": 40263, "end_char": 40276, "source": "ner", "metadata": {"in_sentence": "Lord Denning M. R. said :\n\n\"What is the justification for the courts in this or any other case, departing from the ordinary meaning of words ?"}}, {"text": "Krishna Tyer", "label": "JUDGE", "start_char": 41163, "end_char": 41175, "source": "ner", "metadata": {"in_sentence": "V. P. T. MENGHANI (Krishna Tyer, !.)", "canonical_name": "KRISHNA IYER"}}, {"text": "Erskine", "label": "OTHER_PERSON", "start_char": 41394, "end_char": 41401, "source": "ner", "metadata": {"in_sentence": "We agree that, in the words of Lord Erskine, 'there is no branch of the jurisdiction of this couft more delicate than that, which goes to restrain the exercise of a legal right'."}}, {"text": "Jackson", "label": "JUDGE", "start_char": 41931, "end_char": 41938, "source": "ner", "metadata": {"in_sentence": "The same conclusion can be reached through another line of reasoning expressed by Justice Jackson of the Supreme Court of the United States in D' Cench Duhme: (2 )\n\n\"If the judicial power is helpless to protect a legislative\n\nprogram from schemes for easy avoidance, then indeed it has D become a handy implement of high finance. . . ."}}, {"text": "Supreme Court of the United States", "label": "COURT", "start_char": 41946, "end_char": 41980, "source": "ner", "metadata": {"in_sentence": "The same conclusion can be reached through another line of reasoning expressed by Justice Jackson of the Supreme Court of the United States in D' Cench Duhme: (2 )\n\n\"If the judicial power is helpless to protect a legislative\n\nprogram from schemes for easy avoidance, then indeed it has D become a handy implement of high finance. . . ."}}, {"text": "S. 366", "label": "PROVISION", "start_char": 43599, "end_char": 43605, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_327_331_EN", "year": 1977, "text": "M. L. MANCHANDA & ORS.\n\nUNION TERRITORY OF CHANDIGARH & ORS.\n\nMarch, 17, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]\n\nPunjab. Industrial Housing Rules, 1972, R.4(3), whether ultra vires the Punjab Industrial Housing Act, 1956-Whetlur operates retrospectively.\n\nThe appellants and respondents Nos. 3 tQ 37 herein, were allottees of house3 in Chandigarh constructed by the State Government for low paid industrial C workers under the Industrial Housing Scheme subsidised by the Central Government.\n\nThe Labour Inspector, Union Territciry, Chandigarh gave them notices i.n terms of the proviso to rule 4(3) of the Punjab Industrial Housirfg Rules, 1956, as' amended vide Notification dated November 7, 1972, to show cause why their allotments should not be cancelled.\n\nThe income of each of them exceeded Rs. 350/ - per mensem, which disentitled them to retain their allotments. The appellants and the said respondents filed a joint petition in the High Court for a writ to quash the amendment to rule 4, and to restrain the Government from cancelling their allotments and evicting them. The writ peti- D tion was dismissed.\n\nThe appellants contended firstly, that rule 4(3) was ultra vires the Punjab Industrial Housing Act, 1956 as it took out industrial workers with income exceeding Rs. 350/- p.m. from the scope of section 2(e) of the Act which defines industrial workers; and secondly, that the authority competent to make. rules u/s. 24 of the- Act cannot frame rules having retrospective effect, and as the amended rule- 4(3) operates retrospectively it is invalid.\n\nDismissing the appeal by special leave, the Court, E\n\nHELD:\n\n( 1) The allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilatera1ly by the Government from time to thne by altering the rules in exercise' of the powers conferred on it under section 24 of the Act. Section 24 specifically em- F powers the State Government to make rules to provide inter aliaJor the manner of allotment of accommodation and conditions relating to its occupation. The impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24, was validly made, and was not ultra vires.\n\n[331 G~H. 331 (a)Cl\n\n(2) Section 7 of the Act embodies a deeming provision and gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act, but also if being an allotteo, he ceases tOi fulfil any ?f the .Prscribed conditions then in force, including the one relating to the hm1t of his rncome, and thereby becomes amenable to action under section 9(2) of the Act. [33J(a)AB]\n\n(3) The proviso to rule 4(3) clearly shows that the allotment of an indus trial ':vorker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date whe11 his income started exceeding Rs. 350 /· per mensem H but n the expiry of one month's notiee in writing of the cancellation. The rule IS not mtended to operate retrospectively on industrial worke<s who had been allotted and were in occupation of industrial houses immediately before'\n\nA the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. [33l(a) E-F]\n\nThe Court observed:-\n\nThe scheme being meant for the benefit of the low paid industrial workers and the number of th_e_ houses constructed thereunder being very limited, the Govement could leg1ttmately evolve the method which it did, todisentitle industnal workers whose monthly income was relatively large, to retain the houses. [33J(a)-C-D]\n\nCivIL APPELLATE JURISDICTION: Civil Appeal No. 1744 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated 28.4.1975 of the Punjab & Haryana High Court in Civil Writ Petition No. 1819175)\n\nM. K. Ramamurlhi and J. Ramamurthi, for the appellants.\n\nMadan Mohan, for the respondents 4-8, 10-25, 27-30 & 32-36.\n\nlJ. D. Sharma & R. N. Sachthey, for respondents 1-2.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-This appeal by special leave which is directed against the judgment and order dated April 28, 1975, of the High Court of Punjab and Haryana at Chandigarh, dismissing Civil Writ Petition No. 1819 of 1975 filed by the appellants and respondents 3 to 3 7 herein, who are industrial workers employed in Factories situate in the industrial area in Chandigarh.\n\nThe facts leading to this appeal arc : In 1956, the Legislatme of the then State of Punjab enacted what is called the Punjab Industrial Housing Act, 1956 (Punjab Act 16 of 1956) (hereinafter referred to as 'the Act') to provide for allotment, recovery of rent, eviction and other ancillary matters in respect of houses constructed under the subsidised Industrial Housing Scheme for industrial workers in the State of Punjab. In exercise of the powers conferred on it under section 24 of the Act, the State Government made rules called the Punjab Industrial Housing Rules, 1956 (hereinafter referred to as the Rules').\n\nRule 4 of the Rules as originally made ran as under:.-\n\n\"4. Eligibility for allotment-(!) Two-roomed tenements shall be allotted to industrial workers whose income exceeds Rs. I 00 per mensem.\n\n(2) One-roomed tenements shall be allotted to workers with an income not exceeding Rs. 100 per mensem.\"\n\nM. L. MANCJIANDA v. u. T. OF CHANDIGARH (Jaswant Singh, J.) 329\n\nThis rule was amended vide Notification No.\n\n4119-2HG-60 A 29333 dated October 5, 1960.\n\nThe rule, after its aforesaid amendment, read as under:-\n\n\"4. Eligibility for allotment-( l) Two roomed tenements shall be allotted to industrial workers whose income does not exceed Rs. 350.00 per mensem.\n\n(2) One roomed/small two roomed tenements shall be allotted to workers with an income not exceeding Rs. 250.00 per mensem; provided that where sufficient number of industrial workers witl1 income exceeding Rs. 250.00 per mensem is not forthcoming for allotment, the Labour Commissioner may, with the approval of the State Government, allot two roomed tenements to industrial workers with an income not exceeding Rs. 250.00 per mensem.\n\nNotes : In towns, where only roomed/small two roomed tcncmcnLs have been built, applications should first be invited from such workers only, whose monthly income does not exceed Rs. 250.00. It is only after the demand from these workerc has been met that unallotted tenements should be made available for allotment to workers, whose income exceed Rs. 250.00 per mensem.\n\nWhere these tenements arc given to higher paid workers the normal subsidised rent should be charged from them till such time as the regular two roomed tenements do not become available for them.\n\nWhen the two-roomed tenements become available the higher paid workers must be removed from the smaller tenements, failing which they should be charged the full econo1nic rent.\n\n(ii) Jn cases where after allotment of one roomed/small two roomed tenements 'a worker crosses the wage limit of Rs. 250.00 per mensem, he may be allowed to continue in occupation of the house allotted to him on payment of subsidised rent, till such time as the regular two roomed house does not become available, in other respects the procedure as prescribed in note (i) should be followed .\n\n(iii) Two-roomed tenements should in the first instance, be offered from allotment to workers whose income is in between Rs. 251.00 and Rs. 350,00 per mensem.\"\n\nVidc Notification No. 7480-4H(8)-72/21542 dated November 7, 1972, the Chief Commissioner, Union Territory, Chandigarh, made in exercise of the powers conferred by section 24 of the Act what are called the Puniab Industrial Housing, Chandigarh (First Amendment) Rules, 1972 adding the following, after sub rule (2) in Rule 4 of the Rules:-\n\n\" ( 3) An industrial worker shall become ineligible to retain the industrial house allotted to him from the date his income exceeds Rs. 350/- per mensem and his allotment of it shall stand cancelled with effect from that date.\n\nProvided that in case such an industrial worker has been allotted and is in occupation, of an industrial house immediately before the commencement of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972, his allotment shall be cancelled by the Labour Commissioner after giving him one month's notice in writing of such cancellation.\n\nThe Chief Commissioner also ordained that the following shall be C added in form 'C' of the Rules after condition (24) :-\n\n\"(25) The allottee shall become ineligible to retain the industrial house, allotted to him from the date his income exceeds rupees 350 per mensem and. his allotment shall be deemed to have been cancelled from that date.\"\n\nThe appellants and the aforesaid respondents, who were allottees of houses in Sector 30, Chandigarh constructed by the Sfate Government for occupation of industrial workers under the Industrial Housing Scheme subsidised by the Central Government and declared under section 3(2) of the Act to be houses covered by the provisions of the Act were given notices by the Labour Inspector, Union Territory, Chandigarh, in terms of the proviso to sub-rule ( 3) of rule 4 of the Rules, as amended by the aforesaid Notification No. 7480- 4H(8)-72/2!542 dated November 7, 1972, calling upon them to show cause as to why the allotment of houses made to them should not be cancelled as the income of each one of them exceeded Rs. 350/- pei'. mensem which disentitled them to retain their respective allotments. The aJ>p!'llants and the aforesaid respondents thereupon filed a joint writ petition, being writ petition No. 1819 of 1975 under Articles 226 and 227 of the Constitution in the High Court of Punjab and Haryana for issue of an appropriate writ, order or direction quashing the said notices and notification No. 7480-4H(8)-72/21542 da!ed November 7, 1972 amending Rule 4 of the Rules and restraining respondents I and 2 from proceeding with the cancellation of their respective allotments and evictmg them from the houses. They contended that the aforesaid rule 4 as amended was ultra vires the Act ln so far as it carved out an exception to the statutory definition of 'industrial worker' as contained in section 2 ( e) of the Act within the scope of which they admittedly fell.\n\nThe High Court repelled their contention and dismissed their writ petition by its judgment dated April 28, 1975. Aggrieved by this judgment and order, the appellants and the said respondents made an application to the High Court for issue of a certificate of fitness under Article 133 of the Constitution which was refused by the High Court by its order dated May 9, 1975.\n\nThereupon they moved this Conrt for special leave under Article 136 of the Conslitution which wa's granted.\n\nM. L. MANCllANDA v. u. T. OF CHANDIGARH (Jaswant Singh, J.) 331\n\nAppearing in support of the appeal, Mr. Ramamurthy has reiterated before us that since the appellants and respondents 3 to 3 7 are admittedly industrial workers as defined in clause ( e) of section 2 of the Act, the impugned rule 4 which is designed to cancel their allotment, on the ground that their salary exceeded Rs. 350/- per mensem i's clearly repupant to that clause and as such utra vires and invalid as it takes out industrial workers with income exceeding Rs. 350/- per mensem from the scope of the definition. He has further , contended that since the authority competent to make rules under section 24 of the Act cannot frame any rule having a retrospective effect and the impugned rule-rule 4(3) as amended operates retrospectively, the same is invalid.\n\nHe has lastly urged that the impugned notification is also invalid as it makes hostile and arbitrary discrimination against industrial workers whose income exceeds Rs. 350/- per mense.m, and thereby violates the guarantee enshrined in Article 14 of the Constitution.\n\nWe shall deal seriatim with all the three contentions raised by Mr. Ramamurthy. Before embarking on that task, we consider it appropriate to scan the scheme of the Act.\n\nSection 3 of the Act clearly states that the Act shall be applicable to houses constructed by the State Government for the occupation of industrial workers under the Industrial Housing Scheme subsidised by the Central Government.\n\nThe scheme, as evident from the affidavit of the Home Secretary, Chandigarh Government, is meant for the benefit of the low aid industrial workers and economically weaker sections of the community. Section 9(1) of the Act provides that the occupation by any person of a house shall at all times be subject to such conditions relating to its occupation as may be prescribed, or as may be intimated from time to time by the Labour Commissioner. Section 7 of the Act sets out the circumstances in which a person shall be treated to be in unauthorised occupation of any house. Clause (b) of the section explicity states that a person shall be deemed to be in unauthorised occupation \"where being an allottee he has by reason of cancellation of an allotment under sub-section\n\n(2) of section 9 ceased to be entitled to occupy the house\".\n\nSub-section (2) of section 9, which is necessary to be referred to at this stage and which because of the rwn-obstante clause contained in its opening part overrides all other laws for the time being in force, authorises the Labour Commissioner after giving notice to the allottee and considering the explanation tendered by him to cancel the allotment under which a house is held or occupied by him.\n\nSection 24 of the Act not only empowers the State Government generally to make rules to effectuate the purposes of the Act but also specifically confers on it the power to make rules to provide inter alia for the manner of allotment of accommodation and conditions relating to its occupation [see section 24(2)(ii)] as also for the matters which are to be or may be prescribed [see section 24(2)(x)]. A conspectus of the aforesaid provisions of the Act leaves no room for doubt that the allotment of accommodation to an industrial worker is not unconditional but is subject to conditions wbich can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it\n\nunder section 24 of the Act.\n\nSe<:tion 7 of the Act which embodies a deeming provision gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act but also if being an allottee, he ceases to be entitled to eccupy the accommodation by reason of cancellation of the allotment under sub-section (2) of section 9 of the Act.\n\nA combined reading of se<:- tioru; 7 and 9 of the Act goes to show that if at any time a person be<:omes an unauthorised occupant of the house by reason of his ceasing to be an industrial worker or by otherwise ceasing to fulfil any of the prescribed conditions then in force including the one relating to the limit of his income, he becomes amenable to action under se<:tion 9(2) of the Act.\n\nThe result is that even though the allotree may continue to be an industrial worker, still the allotment under which he holds a house can be cancelled if his occupation becomes nn authorised on any one of the grounds laid down in section 7 of the Act.\n\nWe are, therefore, satisfied that the impugned amendment which squarely falls within the purview of the aforesaid provisions of ·\n\nsection 24 of the Act was validly made and the contention urged by Mr. Ramamurthy that it is ultra vires is misconceived and untenable.\n\nWe may state here in passing that the aforesaid scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government cauld legitimately evolve the method which it did to disentitlc industrial workers like the appellants whose monthly salaries appear to range between Rs. 974.71 and Rs. 186L27 and the aforesaid respondents whose monthly income is also relatively large to retain the houses in question.\n\nThe contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit. A careful study of the proviso to rule 4(3) of the Rules which appears to have been inserted to allay fears and remove misapprehensions would show that the rule is not intended to operate retrospe<:tively on industrial workers who had been allotted and were in occupation of industrial houses immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. It unequivocally states that allotment of an industrial worker who is in occupation of an industrial house in pursuance thereof immediately before the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972 shall not be cancelled without one month's notiee in writing. The proviso therefore clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/- per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/- per mensem but on the expiry of one month's notice in writing of the cancellation. The second contention raised by Mr. Ramamuithi is also, therefore, repelled.\n\nThe third contention advanced by the learned counsel on behalf of the appellants not having been raised before the High Court cannot be permitted to be raised at this stage. The contention can also not be allowed to be raised in view of the Presidential Order dated June 27,\n\nM. L. MANCHANDA v. u. T. OF CHANDIGARH (Jaswant Singh, J.) 33 I(b)\n\n1975 promulgated under clause (1) of Art. 359 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclam<1tion of emergency made under clause ( l) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force.\n\nFor the foregoing reasons, we do not find any merit in this appeal which is dismissed but in the circumstances of the case without any order a\n\nas to costs. Counsel for the appellants submits that he may be given time for vacating thei premises. We grant time till 31st August 1977 on the undertaking given by the counsel that vacant possession will be given on or before \\hat date.\n\nM.R .\n\nAppeal dismissed.", "total_entities": 62, "entities": [{"text": "M. L. MANCHANDA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "M. L. MANCHANDA & ORS", "offset_not_found": false}}, {"text": "UNION TERRITORY OF CHANDIGARH & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "UNION TERRITORY OF CHANDIGARH & ORS", "offset_not_found": false}}, {"text": "March, 17, 1977", "label": "DATE", "start_char": 62, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "March, 17, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 80, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 103, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH, JJ.", "offset_not_found": false}}, {"text": "Industrial Housing Rules, 1972", "label": "STATUTE", "start_char": 132, "end_char": 162, "source": "regex", "metadata": {}}, {"text": "Punjab Industrial Housing Act, 1956", "label": "STATUTE", "start_char": 196, "end_char": 231, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 482, "end_char": 500, "source": "ner", "metadata": {"in_sentence": "3 tQ 37 herein, were allottees of house3 in Chandigarh constructed by the State Government for low paid industrial C workers under the Industrial Housing Scheme subsidised by the Central Government."}}, {"text": "Punjab Industrial Housirfg Rules, 1956", "label": "STATUTE", "start_char": 617, "end_char": 655, "source": "regex", "metadata": {}}, {"text": "Punjab Industrial Housing Act, 1956", "label": "STATUTE", "start_char": 1198, "end_char": 1233, "source": "regex", "metadata": {}}, {"text": "section 2(e)", "label": "PROVISION", "start_char": 1323, "end_char": 1335, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Industrial Housing Act, 1956", "statute": "the Punjab Industrial Housing Act, 1956"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 1441, "end_char": 1446, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Industrial Housing Act, 1956", "statute": "the Punjab Industrial Housing Act, 1956"}}, {"text": "section 24", "label": "PROVISION", "start_char": 1890, "end_char": 1900, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Industrial Housing Act, 1956", "statute": "the Punjab Industrial Housing Act, 1956"}}, {"text": "Section 24", "label": "PROVISION", "start_char": 1913, "end_char": 1923, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Industrial Housing Act, 1956", "statute": "the Punjab Industrial Housing Act, 1956"}}, {"text": "section 24", "label": "PROVISION", "start_char": 2188, "end_char": 2198, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Industrial Housing Act, 1956", "statute": "the Punjab Industrial Housing Act, 1956"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 2269, "end_char": 2278, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9(2)", "label": "PROVISION", "start_char": 2648, "end_char": 2660, "source": "regex", "metadata": {"statute": null}}, {"text": "M. K. Ramamurlhi", "label": "LAWYER", "start_char": 3798, "end_char": 3814, "source": "ner", "metadata": {"in_sentence": "1819175)\n\nM. K. Ramamurlhi and J. Ramamurthi, for the appellants."}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 3819, "end_char": 3832, "source": "ner", "metadata": {"in_sentence": "1819175)\n\nM. K. Ramamurlhi and J. Ramamurthi, for the appellants.", "canonical_name": "J. Ramamurthi"}}, {"text": "Madan Mohan", "label": "LAWYER", "start_char": 3855, "end_char": 3866, "source": "ner", "metadata": {"in_sentence": "Madan Mohan, for the respondents 4-8, 10-25, 27-30 & 32-36."}}, {"text": "lJ. D. Sharma", "label": "LAWYER", "start_char": 3916, "end_char": 3929, "source": "ner", "metadata": {"in_sentence": "lJ. D. Sharma & R. N. Sachthey, for respondents 1-2."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3932, "end_char": 3946, "source": "ner", "metadata": {"in_sentence": "lJ. D. Sharma & R. N. Sachthey, for respondents 1-2."}}, {"text": "Chandigarh", "label": "GPE", "start_char": 4375, "end_char": 4385, "source": "ner", "metadata": {"in_sentence": "1819 of 1975 filed by the appellants and respondents 3 to 3 7 herein, who are industrial workers employed in Factories situate in the industrial area in Chandigarh."}}, {"text": "section 24", "label": "PROVISION", "start_char": 4861, "end_char": 4871, "source": "regex", "metadata": {"linked_statute_text": "the Legislatme of the then State of Punjab enacted what is called the Punjab Industrial Housing Act, 1956", "statute": "the Legislatme of the then State of Punjab enacted what is called the Punjab Industrial Housing Act, 1956"}}, {"text": "State Government made rules called the Punjab Industrial Housing Rules, 1956", "label": "STATUTE", "start_char": 4888, "end_char": 4964, "source": "regex", "metadata": {}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 5347, "end_char": 5360, "source": "ner", "metadata": {"in_sentence": "M. L. MANCJIANDA v. u. T. OF CHANDIGARH (Jaswant Singh, J.) 329\n\nThis rule was amended vide Notification No.", "canonical_name": "JASWANT SINGH, JJ."}}, {"text": "October 5, 1960", "label": "DATE", "start_char": 5442, "end_char": 5457, "source": "ner", "metadata": {"in_sentence": "4119-2HG-60 A 29333 dated October 5, 1960."}}, {"text": "section 24", "label": "PROVISION", "start_char": 7566, "end_char": 7576, "source": "regex", "metadata": {"statute": null}}, {"text": "Sfate Government", "label": "ORG", "start_char": 8787, "end_char": 8803, "source": "ner", "metadata": {"in_sentence": "The appellants and the aforesaid respondents, who were allottees of houses in Sector 30, Chandigarh constructed by the Sfate Government for occupation of industrial workers under the Industrial Housing Scheme subsidised by the Central Government and declared under section 3(2) of the Act to be houses covered by the provisions of the Act were given notices by the Labour Inspector, Union Territory, Chandigarh, in terms of the proviso to sub-rule ( 3) of rule 4 of the Rules, as amended by the aforesaid Notification No."}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 8933, "end_char": 8945, "source": "regex", "metadata": {"statute": null}}, {"text": "November 7, 1972", "label": "DATE", "start_char": 9217, "end_char": 9233, "source": "ner", "metadata": {"in_sentence": "7480- 4H(8)-72/2!542 dated November 7, 1972, calling upon them to show cause as to why the allotment of houses made to them should not be cancelled as the income of each one of them exceeded Rs."}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 9595, "end_char": 9615, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 9643, "end_char": 9675, "source": "ner", "metadata": {"in_sentence": "1819 of 1975 under Articles 226 and 227 of the Constitution in the High Court of Punjab and Haryana for issue of an appropriate writ, order or direction quashing the said notices and notification No."}}, {"text": "section 2", "label": "PROVISION", "start_char": 10170, "end_char": 10179, "source": "regex", "metadata": {"statute": null}}, {"text": "April 28, 1975", "label": "DATE", "start_char": 10342, "end_char": 10356, "source": "ner", "metadata": {"in_sentence": "The High Court repelled their contention and dismissed their writ petition by its judgment dated April 28, 1975."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 10518, "end_char": 10529, "source": "regex", "metadata": {"statute": null}}, {"text": "May 9, 1975", "label": "DATE", "start_char": 10605, "end_char": 10616, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this judgment and order, the appellants and the said respondents made an application to the High Court for issue of a certificate of fitness under Article 133 of the Constitution which was refused by the High Court by its order dated May 9, 1975."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 10675, "end_char": 10686, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramamurthy", "label": "LAWYER", "start_char": 10833, "end_char": 10843, "source": "ner", "metadata": {"in_sentence": "M. L. MANCllANDA v. u. T. OF CHANDIGARH (Jaswant Singh, J.) 331\n\nAppearing in support of the appeal, Mr. Ramamurthy has reiterated before us that since the appellants and respondents 3 to 3 7 are admittedly industrial workers as defined in clause ( e) of section 2 of the Act, the impugned rule 4 which is designed to cancel their allotment, on the ground that their salary exceeded Rs.", "canonical_name": "J. Ramamurthi"}}, {"text": "section 2", "label": "PROVISION", "start_char": 10983, "end_char": 10992, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 11397, "end_char": 11407, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 11797, "end_char": 11807, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12000, "end_char": 12009, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandigarh Government", "label": "ORG", "start_char": 12296, "end_char": 12317, "source": "ner", "metadata": {"in_sentence": "The scheme, as evident from the affidavit of the Home Secretary, Chandigarh Government, is meant for the benefit of the low aid industrial workers and economically weaker sections of the community."}}, {"text": "Section 9(1)", "label": "PROVISION", "start_char": 12429, "end_char": 12441, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 12674, "end_char": 12683, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 13010, "end_char": 13019, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 13084, "end_char": 13093, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 13467, "end_char": 13477, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(2)(ii)", "label": "PROVISION", "start_char": 13764, "end_char": 13781, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24(2)(x)", "label": "PROVISION", "start_char": 13849, "end_char": 13865, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 14196, "end_char": 14206, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 14554, "end_char": 14563, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 15201, "end_char": 15210, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 15355, "end_char": 15365, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramamurthi", "label": "LAWYER", "start_char": 16006, "end_char": 16016, "source": "ner", "metadata": {"in_sentence": "The contention of Mr. Ramamurthi that the impugned rule is retroactive in operation is also devoid of merit.", "canonical_name": "J. Ramamurthi"}}, {"text": "Ramamuithi", "label": "LAWYER", "start_char": 17115, "end_char": 17125, "source": "ner", "metadata": {"in_sentence": "The second contention raised by Mr. Ramamuithi is also, therefore, repelled.", "canonical_name": "J. Ramamurthi"}}, {"text": "Art. 359", "label": "PROVISION", "start_char": 17538, "end_char": 17546, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 17589, "end_char": 17599, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 17705, "end_char": 17716, "source": "regex", "metadata": {"statute": null}}, {"text": "June 25, 1975", "label": "DATE", "start_char": 17764, "end_char": 17777, "source": "ner", "metadata": {"in_sentence": "359 of the Constitution suspending inter alia Article 14 of the Constitution for the period during which the proclam<1tion of emergency made under clause ( l) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force."}}, {"text": "31st August 1977", "label": "DATE", "start_char": 18063, "end_char": 18079, "source": "ner", "metadata": {"in_sentence": "We grant time till 31st August 1977 on the undertaking given by the counsel that vacant possession will be given on or before \\hat date."}}]}
{"document_id": "1977_3_332_342_EN", "year": 1977, "text": "COX & KINGS (AGENTS) LTD. v.\n\nTHEIR WORKMEN AND ORS.\n\nMarch 18, 1977\n\n[V. R. KRISHNA IYER, R. s. SARKARIA AND JAswANT SINGH, JJ.J\n\nIndustrial Disputes Act, 1947-S. 2(b) and s. 19(3)-Scope of-Dedsion given without going into merits of a dispute-If an award-Second reference iu\n\nuch a case-If could be made within a year.\n\nThe term 'Award' has been defined by s. 2(b) of the Industrial Disputes Act, 1947 to mean an interim or a final determination of any industrial dispute or of any question relating thereto by a Labour Court. Section 10, which describes the matters that can be referred to a Labour Court etc. for adjudication provides in sub s. (I) that where an appropriate government is of opinion that any industrial dispute exists or is apprehended it may, at any time, by order in writing ... ( c) refer the dispute or any matter appearing to be connected with or relevant to the dispute, if it relates to any matter specified in the second schedule, to a Labour Court for adjudication. Under s. 19(3) an award shall remain in operation for a period , of one year from the date on which the award becomes enforceable under s. 17A.\n\nAn industrial dispute relating to the dismissal of three workmen of the appellant had been referred to a Labour Court. The Labour Court held that the reference was invalid because, as the workmen had not served demand notice on the management prior to the reference, no industrial dispute could legally come into existence before the reference.\n\nAfter serving a demand notice on the manage.ment within a month thereafter the workmen raised an industrial dispute relating to the same matter. The Labour Court rejected the employer's preliminary objection that in vie\\V of s. 19, the se.cond reference was not competent in that it was made within one year of the first award, and decided the case on merits. The Labour Court held that the termination of the services of the workmen was illegal and ordered reinstatement with back wages from the date of termination.\n\nThe employer's writ petition under Art. 226 of the Comtitution i1npugning the Labour Court's decision was dismissed by the High Court.\n\nDismissing the appeal,\n\nHELD : The Labour Court's determination in the first. reference did not possess the attributes essential to bring it within the definition of an award. The mere fact that this order was published by the Government under s. 17(1), did not confer that status on it.\n\n[339 D]\n\nl(a) The definition of 'award' under s. 2(b) falls in two parts (i) determination, final or interim, of any industrial dispute and (ii) of any question relating to an industrial dispute. The basic posttJ.late common to both the parts of the defintion is the exi'stence of on industrial dispute, actual or apprehended.\n\nThe 'detern1ination' contemplated by the definition is of an industrial dispute or a question relating thereto on merits.\n\n[338 D]\n\n(b) In the instant cases the order of the Labour Court in the first reference did not determine the question or points specified in government order of reference, nor was it an adjudication on merits of any industrial dispute or a question relating thereto.\n\nThe only question determined by the Labour Court was about the existence of an industrial dispute which in its opinion was a sine qua non for the validity of the reference. Rightly or wrongly it found that this preliminary jurisdictional fact did not exist because no industrial dispute had come into existee.ce in accordance with law and in consequence. the reference was invalid. There was, therefore, no determination of the dispute on merits on the question relating thereto.\n\n[339 C-D]\n\nTcclinological Institute of Textiles v. /ts Workn1en and Ors. [1965] 2 LLJ 149, A followed.\n\nManage1ne11t of Baflgalore Woollen, Cotton & Silk Mills Co. Ltd. v. The Workmen and Anr. [1968] 1 SCR 581, referred to. rt/#· Workmen of Swadeshi l.'otton Mills Co. Ltd. v. Swadeshi Cotton A-tills Co.\n\nLtd. Kanpur and Ors. 42 Indian Factories Journal p, 25.5, not a~ved.\n\n(b) Moreover the decision of the Labour Court in the first reference did not B impose any continuing obligation on the parties bound by it. The second reference was, therefore, not barred by oo.ything contained in subs. (3) or other provisions of s. 19. [340 Cl\n\n2. The Labour Court was not justified in awarding compensation to the workmen for wages relating to the period prior to the date on which the demand notice for reinstatement was served on the management. [140 I-I]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 375 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated 7.11.1975 of the High Court at New Delhi in Civil Writ No. 1123 of 1975)\n\nG. B. Pai, 0. C. Mathur and D. N. Mishra, for the appellant.\n\nM. K. Rarnarnurthi, S. C. Jain and Madan Mohan, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-Th principa[ question that arises in this appeal by special leave is : Whether an order of the Labour Court to the effect, that since no demand of the workmen had been served on the employer, no industrial dispute had come into existence in accordance with law, and as such the Reference was invalid and the Court had no jurisdiction to adjudicate the matter referred to it by the Government, is an \"award\" for the purposes of Section 19 of the Industrial Dis-\n\n!putes Act, 1947, (for short, called the Act)?\n\nCox & Kings (Agents) Ltd. (for short, the Management) dis- F missed from service three of their workmen after a domestic enquiry conducted against them on certain charges.\n\nIn May 1967, the Lt. Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\"\n\nBy an amendment of their written statement in February, 1969, augmented by an application dated 17.8.1971, the Management rais- H ed a preliminary objectiQn that since no demand notice had been •served on the Management, no industrial dispute had legally come into exllitence, and as such the Reference was invalid and the Labour\n\n.A Court had no jurisdiction to adjudicate it.\n\nBy an order, dated September 27, 1972, the Labour Court accepted the objection, holding :\n\n\" that no industrial dispute came into existence before this reference as the workmen have failed to establish serving of demand on the management prior to this reference.\n\nThe effect of this finding is that the reference could not have been made for adjudication and the same is accordingly invalid and hence !he question of deciding the issue as In the reference or other issu1:s does not arise as the industrial dispute under reference did not come into existence in accordance with Jaw before this reference.\n\nThis award is made accordingly.\"\n\nThereafter, the workmen on 25.l 0.1972, raised a dispute by serving demand notices on the Management.\n\nBy his order dated 2.5.1973, the Lt. Governor, Delhi, again made a Reference to the Labour Court, under the Act for adjudication of the same matter relating to the termination of the services of the aforesaid workmen.\n\nThe Management raised, inter alia, a preliminary objection that a second Refere, ncc within one year of the first 'award', dated September D 27, 1972, was not competent in view of what is contained in sec. 19 of the Act.\n\nBy an order dated 2.5.1973, the Labour Court dismissed the preliminary objections.\n\nAfter recording the evidence produced by the parties, !he Court held on merits, !hat the termination of the services of 3 workmen was illegal and unjustified. The Court further found that Bidhi Chand workman had become gainfully employed elsewnere as a driver with better emoluments and it was therefore sufficient to award him compensation without any relief of reinstatement, at the rate of 50% of his wages for three years from 1966 to 1969 to the date of his getting employment elsewhere.\n\nIt fmther found that Ram Sarup Gupta had remained unemployed after his dismissal in 1966. It therefore directed his reinstatement with full back wages and continuity of service.\n\nAs regards H. S. Rawat, !he Court fonnd that he could not have remained unemployed throughout but was doing some work or the other for his living, may be with occasional spells.\n\nThe Court therefore held that Rawat was entitled to reinstatement and continuity of service with 50% back wages till the award came into operation and he got his reinstatement.\n\nThis award was made by the Labour Court on 1-5-1975.\n\nThe Management impugned thfr award by filing a writ petition\n\n1under Art. 226 of the Constitution in the High Court of Delhi. Only\n\nthree contentions were canvassed by the Management at the preliminary hearing before the High Court : ( i) That the determination, dated 27.9.1972, by the Labour Court was an 'award' as defined ins. 2(b) of the Act, and in view of sub-s. (3) of s. 19, it had to be in operation for a period of one year.\n\nIt could be terminated only by a notice given under sub-ss. ( 4) & ( 6) of s. 19.\n\nSince no such notice was given, !he award continued to be in operation.\n\nThe second award, dated 1-5-1975, could not be validly made during the period, the\n\nfu:st award was in operation; (ii) The demand for reinstatement was A not made by the workmen till 1972 and the Labour Court was not justified in awarding them the relief of reinstatement together with compensation for back wages from 1966 onwards; (iii) The onus to show that the workmen had not obtained alternative employment, after their dismissal, was. on the workmen and this onus has not been discharged.\n\nOn the other hand, the Labour Court wrongfully did not permit the Management to adduce additional evidence to show that the workmen B had obtained alternative employment and, in consequence, were not entitled to back wages.\n\nRegarding ( i), the High Court held that since the 'award' dared 27.9.1972, was not one which imposed any continuing obligation on the partie'S, but had ended with its pronouncement, nothing in subsections (3) and (6) of sec. 19 was applicable to it. c\n\nAs regards (ii), the High Court held that once the dismissal of the workmen was found illegal, it was inevitable to award the compensation from the dates of dismissal till they found alternative employment or till the date of the award, as the case may be.\n\nIn regard to (iii), the High Court said that the question of burden of proof as to who is to prove, whether the workmen did not get alternative employment for the period for which back wages have been awarded to them could arise only if no evidence was given by either party or if the evidence given by them was evenly balanced.\n\nNeither of these circumstances was present before the Labour Court, and there was no good reason to disturb the finding of fact recorded by the Labour Court on this point.\n\nThe High Court tbns rejected all the three contentions, and, in the result, dismissed the writ petition in limine, with a speaking order.\n\nHence this appeal.\n\nShri G. B. Pai has reagitated all the three points before us.\n\nHe assails the findings of the High Court, thereon.\n\nRegarding point No. (i) Mr Pai's argument is that the determination, dated 27.9.1972, also, was an 'award' within the second part of the definition of the term in e. 2(b) of the Act, inasmuch as it determined a question relating to an industrial dispute.\n\nEmphasis has also been laid o, n the point that this 'award', dated 27 .9.1972 was\n\nduly published by the Government under s. 17(1) and had assumed finality under sub-s. (2) of the same section.\n\nThis award dated 27.9.1972-proceeds the argument-bad to remain operative under sub-s. (3) of s. 19 for a period of one year from the date on which\n\nit became enforceable under 8. 17 A i.e., a date one month after its publicatio, n. It is submitted that no second Reference could be validly made by the Government during the period the first award remained operative, and since the :o.econd Reference, dated 2.5.1973 was made before the expiry of such period of the first award (which had not been terminated in the manner laid down in s. 19) it was invalid and the consequeintial adjudication by the Labour Court on its basis, was null and void.\n\nIn this connection counsel has relied upon a\n\n.7 -43 6SCI /77\n\njudgment of this Court in Management of Bangalore Woollen, Cotton & Silk Mills Co. Ltd. v. The Workmen and anr.(') wherein it was held that when there is a subsisting award binding on the parties, the Tribunal has no jurisdiction to consider the same points in a fresh reference.\n\nJn that case, the earlier award had not been terminated and the Reference was therefore held to be incompetent.\n\nReference bas also been made to a single Bench Judgment of the Allahabad lligh Court in Workmen of Swadeshi Cotton Mills Co. Ltd. v Swadeshi Cotton Mills Co., Ltd., Kanpur and ors.(2)\n\nAs against this, Shri M. K. Ramamurthi maintains that the Labour Court's order, dated May 1, 1972, was not an 'award' within the definition of the term in s. 2(b) inasmuch as it was not a determination, on merits, of any industrial dispute or of any question relating C to an industrial dispute.\n\nIn this connection reliance has been placed on a judgmoot of this Court in Civil Appeal No. 241 of 1964 (Technological Institute of Textiles v. Its Workmen and ors. (3).\n\nBefore dealing with the contentions canvassed, it will be worthwhile to notice the relevant statutory provisions.\n\nD The terms 'award' and 'industrial dispute' have been defined in\n\nthe Act as follows :\n\n'Award' means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under s. lOA\". [vide s. 2 (b)].\n\n\"Industrial dispute\" means \"a; ny dispute or difference between employers and employens, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person\", [vide s. 2(k)].\n\nSection 10 describes the matters which can be referred to Boards, Courts or Tribunals for adjudication.\n\nOnly clause (i) of subsection ( 1) is material for our purpose. I! provides;\n\n\"Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing-\n\n(a) (b)\n\n(c) refer the dispute or any matter appearing to be connected with, or relevant to the dispute, if it relates to any\n\n(1) [196R] I S.C.R. 581.\n\n(1) 42 Indian Factories Journ•I p. 255.\n\n(3) [1965] 2 L.L.J. 149.\n\n.matter .specified in the Second Schedule to a Labour Court 'A .for .adjudication\".\n\nSub-section ( 4) requires the Labour Court to confine its adjudi- .cation to those po\\nts of dispute and matters incidental thereto which\n\n<he appropriate Government has referred to it for adjudication.\n\nThe material part of section 19 reads as under :\n\n\"(1)\n\n(2) ..\n\n(3) An award shall, subject to the provisions of this section remain in operation for a period of one year from the date on which the award becomes enforceable under\n\n&1~ c\n\nProvided that the appropriate Government may reduce .the said period and fix such period as it thinks fit :\n\n\"Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one D year at a time as it thinks fit so, however, that the total\n\n(4)\n\n( 5)\n\nperiod of operation of any award does not exceed three years from the date on which it came into operation.\n\nWhere the appropriate Government, Whether of its own motion or on the application of any party bound by the award, considered that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of. a Tribunal or of a National Tribunal for decision whether the period of operation should not, by reason of such change, be shortened and the decision of Labour Court or the Tribunal, as the case may be, on such reference shall be final.\n\nNothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.\n\n(6) Notwithstanding the expiry of the period of operation under snb-section (3), the award shall continue to be binding, on the parties until a period of\n\ntwo months has elapsed from the date on which H notice is given by any party hound by the award to the other party or parties intimating its intention to\n\nterminate the award.\n\n(7) No notice give.a under sub-section (2) or sub-section\n\n(6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.\"\n\nThere is no dispute that the order on the earlier Reference was made by the Labour Court on 27-9-1972, while the second Reference with the same terms of Reference to that Court was made by tho Government on 2.5.1973, i.e., within one year of the earlier order.\n\nIt is common ground that the period of one year for which an award normally remains in operation under sub-s. (3) was not reduced or curtailed by the Government under sec. 19 or under any other provision of the Act.\n\nIt is further admitted between the parties that no notice was given by any party of its ntention to terminate the Order dated 27.9.1972.\n\nThe controversy with regard to the first point therefore narrows \"\"' down into the issues whether the determination dated 27.9.1972, of the Labour Court was an award as defined in s. 2 (b) of the Act:/\n\nThe definition of award in s. 2(b) falls in two parts.\n\nThe first part covers a determination, final or nterim, of any industrial dispute.\n\nThe second part takes in a determination of any question relating to an industrial dispute.\n\nBut the basic postulate common to both the parts of the definition, is the existence of an industrial dispute, actual or apprehended.\n\nThe \"determination\" contemplated by the definition is of the industrial dispute or a question relating tl1ereto, on merits. It is to be noted further that sec. 2, itself, expressly makes the definition subjet:t to \"anything repugnant in the subject or context\".\n\nWe have therefore to consider this definition in the context of sec. 19 and other related provisions of the Act.\n\nMr. Pai concedes that the order dated 27.9.1972, is not a deter. mination of any industrial dispute, as such, falling under the first part of the definition.\n\nHowever, his argument is that the expression \"or F •any question relating thereto\" in the second part of the definition is of wide amplitude and should be spaciously construed.\n\nIt is maintained that a question, whether or not an industrial dispute exists, will itself be a questi..0n relating to an industrial dispute within the intendment of the second part of the definition.\n\nThe contention appears to be attractive but does not stand a close G examination.\n\nSub-section (1) of sec. 10 indicates when and what matters can be referred to the Labour Court for adjudication.\n\nThe sub-section expressly makes formation of opinion by the appropriate Govemmnt,\n\nthat any industrial dispute exists or is apprehended\" a _condillon_ precedent to the exercise of the power of making a Reference.\n\nSubsection ( 4) gives a mandate. to the La.hour Court to confin~ its judi cation to those points of dispute which have been specified m the Order of Reference, or are incidental thereto. From a conjoint reading of cl.(b) of s. 2 and sub-section (1) and (4) of sec. 10, it is\n\nclear that i, n order to be an 'award' within the second part of the defi- A nition, a determination must be-(i) an adjudication of a question or point re:ating to an industrial dispute, which has been specified in the Order of Reference or is incidental thereto : and (ii) such adjudication must be one on merits.\n\nNow let us test the Labour Court's order, dated 27.9.72 in the light of the above enunciation.\n\nThat Order did not satisfy any of the B criteria indicated above. It did not determine the questions or points\n\nspecified in the Government Order of Reference.\n\nNor was it an adjudication on merits of any industrial dispute or a question relating thereto. The only question determined by the Order, dated 27.9.1972, was about the existence of a preliminary fact, viz., existence of an industrial dispute which in the Labour Court's opinion was a siM qua non for the validity of the Reference and the exercise of further C jurisdiction by the Court.\n\nRightly or wrongly, the Court found that this preliminary jurisdictional fact did not exist, because \"no industrial dispute had come into existence in accordance with Jaw\", and, in consequence, the Reference wa6 invalid and the Court was not competent to enter upon the Reference and determine the matter referred to it.\n\nWith this finding, the Court refused to go into the merits of the question referred to it. There was no determination on D merits of an industrial dispute or a question relating thereto.\n\nWe are therefore of opinion that Labour Court's determination dated 27.9.1972, did not possess the attributes essential to bring it within th• definition of an 'award'.\n\nThe mere fact that this order was published by the Government under s. 17(1) of the Act did not confer that status on it\n\nIn the view we take we are fortified by the principle laid down by this Court in Technological Institute of Textiles v. Its Workmen\n\n(supra).\n\nIn that case, there was a settlement which in the absence of necessary formalities, was not binding on the parties.\n\nCertain items of dispute were not pressed and withdrawn under the terms of such settlement.\n\nIn the subsequent reference before the Industrial Tribunal some of the items of dispute were withdrawn and no F award was made in respect thereto.\n\nThereafter, these items wera again referred for adjudication along with certain other matter~ to the Tribt1nal. It was contended on behalf of the Management that subsequent reference with regard to the items which had been withdrawn and not pressed in the earlier reference, was barred under sec. 19, because the earlier award had not been terminated in full.\n\nRamaswami J., speaking for the Court, repelled this contention. with these G observations :\n\n\"It is manifest \\n the present case that there has been no adjudication on merits by the industrial tribunal in the previous reference with regard to the matters covered by items ( 1) and (3) of the present reference, because the workmen had withdrawn those matters from the purview of H the dispute.\n\nThere was also no settlement in Ex. R. 4, because the demands in question had been withdrawn by the workmen and there was no agreement between the parties\n\nA in regard thereto. Our conclusion, therefore, is that the bar of s. 19 of the Industrial Disputes Act docs not operate with regard te the matters covered by items (1) and {3) of the present reference and the argument put forward by the appellant on this aspect of the case must be rejected.\"\n\n8 Although the facts of the case before us are different, yet the principle enunciated therein viz., that the bar of sec. 19 operates only with regard to a detennination made on merits, is fully applicable.\n\nBy any reckoning, the decision dated 27.9.1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it.\n\nThis was an additional reason. for holding thatl the earlier reference was not barred by anything contained in sub-section (3) or other provisions of section 19, c\n\nWe have gone thrqugh the single Bench decision o~ the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd. case\n\n(supra).\n\nThat decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication wru not an industrial dispute as defined! in the Act is itself a determination of a question relating to a:n industrial dispute, and would fall within\n\nthe definition of the term \"award\" under the Act.\n\nIn our opinion, this is not a correct statement of the law on th<:> point. ,\n\nThe next submission of Mr, Pai is that since the demand for reinstatement was not duly made by the workmen before 28 . 10. 1972, the Courts below were not justified in awarding to the workmen, compensation for back wages from 1966 onwards.\n\nOn the other hand, Mr. Ramamurthi maintains that such a claim F was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966.\n\nWhile conceding that technically, no demand notice for reinstatement was served by the workmen on the Management before 25. 10. 1972, Counsel submits that the Management were aware of the workmen's claim to reinstatement, since 1966, and in these circumstances, the Management should not be allowed to take shelter behiud this technical flaw, and deny just compensation to G them from the date of wrongful dismissal.\n\nWe have carefully considered the contentions advanced on both sides.\n\nAfter taking into consideration all the circumstances of the case, we are of opinion that the Labour Court was not justified in awarding compensation to the workmen, for wages relating to the H period prior to 25.10.1972 i.e., the date on which the demand notices for reinstatement were served on ihe Management.\n\nTo this extent, we would accept the contention of the appellants.\n\nThe third contention of the appellants is that the onus of prov- A mg that they had not obtained alternative employment elsewhere after the termination of their services, was on the workmen and they had failed to discharge that onus. '\n\n\"\" We find no merit in this cqntention.\n\n').·\n\n'_[he question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce.\n\nIn the instant case, both the parties led their evidence and closed their respective cas!lS.\n\nSubseque?tly, at .a. late stae, the Management made an application for adducmg additional evidence. The Labour Court declined that application.\n\nThe High Court found-and we think rightly, no good reason to interfere with the discretion of the Labour Court.\n\nIt may be remembered further, that this appeal arises out of a petition under Art. 226 of the Constitution, and in the exercise of that special jurisdiction? the High Court .does not reopen a finding of fact based on legal evidence. The findmgs of the Labour Court to the effect, that after their dismissal, Ram Swarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find on! Y intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those findings of fact.\n\nLastly it was urged by Mr. Pai, that the employers had lost confidence in the employees, and therefore, compensation, without reinstatement, would have been adequate relief.\n\nIt is submitted that the business of the employers is that of Travel Agents and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt.\n\nIt is stressed that the employees of the appellants, have to handle daily lot of cash received from their clients in the discharge of their duties. It is pointed out that the charge against H. S. Rawat was one of misappropriation of such funds and this charge was established in the domestic enquiry.\n\nThe Labour Court, proceeds the argument, did not displace that finding of the domestic Tribunal, but ignored it on the ground that the charge was stale and had been condoned.\n\nIn short, the argument is that the employers had lost confidence in this employee. who could no longer be entrusted to perform sensitive jobs on behalf of the Manageme, nt, without detriment to its business.\n\nWe are unable to accept this contention.\n\nFirstly, this point was not argued before the High Court. Second- G ly, the observations of the Labour Court, read as a whole, show that, in its opinion, the charge of misappropriation of funds had not. been proved against H. S. Rawat.\n\nThis is what tl; ie Labour .Court said on the point :\n\n\"I am therefore of op\\nion that the charges had been condoned and they could not be revived . again. and the . ct\n\nof reviving the charge on account of his Uruon act1V1hes was an act of unfair labour practice on the part of the Management and amounted to victimisation. Even the\n\n342 SUPRBMI! COURT Rl!PORTS\n\n[1977] 3 S.C.R.\n\nA charges in the charge-sheet Ex. M/5 have not been established before me, that the workman withdrew the fnnds from the company on false pretences for revenue stamps and misappropriated the same.\"\n\nThus there is no factual basis for this belated contention, and we\n\n\"\"'I repel the same.\n\nFor the foregoing reasons, we dismiss this appeal with the modification that in addition to the relief of reinstatement with continuity of service, S/Shri H. S. Rawat and Ram Swarup Gul'ta shall be entitled to 50%, and full back wages, respectively, from 25.10.1972.\n\nIt may be recalled that the special leave to appeal in this case, was granted on the condition that the appellants shall pay the coslli\n\nof this appeal to the respondents, in any event.\n\nWe order accordingly. ·\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 91, "entities": [{"text": "COX & KINGS (AGENTS) LTD", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "COX & KINGS (AGENTS) LTD", "offset_not_found": false}}, {"text": "THEIR WORKMEN AND ORS", "label": "RESPONDENT", "start_char": 30, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "THEIR WORKMEN AND ORS", "offset_not_found": false}}, {"text": "March 18, 1977", "label": "DATE", "start_char": 54, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "March 18, 1977\n\n[V. R. KRISHNA IYER, R. s. SARKARIA AND JAswANT SINGH, JJ.J\n\nIndustrial Disputes Act, 1947-S. 2(b) and s. 19(3)-Scope of-Dedsion given without going into merits of a dispute-If an award-Second reference iu\n\nuch a case-If could be made within a year."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 71, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 91, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "R.S. 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B. Pai", "label": "LAWYER", "start_char": 4679, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "1123 of 1975)\n\nG. B. Pai, 0.", "canonical_name": "G. B. Pai"}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 4690, "end_char": 4702, "source": "ner", "metadata": {"in_sentence": "1123 of 1975)\n\nG. B. Pai, 0."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 4707, "end_char": 4719, "source": "ner", "metadata": {"in_sentence": "C. Mathur and D. N. Mishra, for the appellant."}}, {"text": "M. K. Rarnarnurthi", "label": "LAWYER", "start_char": 4741, "end_char": 4759, "source": "ner", "metadata": {"in_sentence": "M. K. Rarnarnurthi, S. C. Jain and Madan Mohan, for respondent No.", "canonical_name": "M. K. Rarnarnurthi"}}, {"text": "S. C. Jain", "label": "LAWYER", "start_char": 4761, "end_char": 4771, "source": "ner", "metadata": {"in_sentence": "M. K. Rarnarnurthi, S. C. Jain and Madan Mohan, for respondent No."}}, {"text": "Madan Mohan", "label": "LAWYER", "start_char": 4776, "end_char": 4787, "source": "ner", "metadata": {"in_sentence": "M. K. Rarnarnurthi, S. C. Jain and Madan Mohan, for respondent No."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 4856, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-Th principa[ question that arises in this appeal by special leave is : Whether an order of the Labour Court to the effect, that since no demand of the workmen had been served on the employer, no industrial dispute had come into existence in accordance with law, and as such the Reference was invalid and the Court had no jurisdiction to adjudicate the matter referred to it by the Government, is an \"award\" for the purposes of Section 19 of the Industrial Dis-\n\n!"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 5296, "end_char": 5306, "source": "regex", "metadata": {"statute": null}}, {"text": "Cox & Kings (Agents) Ltd.", "label": "ORG", "start_char": 5379, "end_char": 5404, "source": "ner", "metadata": {"in_sentence": "Cox & Kings (Agents) Ltd. (for short, the Management) dis- F missed from service three of their workmen after a domestic enquiry conducted against them on certain charges."}}, {"text": "Delhi", "label": "GPE", "start_char": 5585, "end_char": 5590, "source": "ner", "metadata": {"in_sentence": "Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\""}}, {"text": "s. 10", "label": "PROVISION", "start_char": 5614, "end_char": 5619, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(5)", "label": "PROVISION", "start_char": 5630, "end_char": 5638, "source": "regex", "metadata": {"statute": null}}, {"text": "Labour Court, Delhi", "label": "COURT", "start_char": 5657, "end_char": 5676, "source": "ner", "metadata": {"in_sentence": "Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\""}}, {"text": "H. S.\n\nRawat", "label": "OTHER_PERSON", "start_char": 5743, "end_char": 5755, "source": "ner", "metadata": {"in_sentence": "Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\"", "canonical_name": "H. S.\n\nRawat"}}, {"text": "Bidhi Chand", "label": "OTHER_PERSON", "start_char": 5757, "end_char": 5768, "source": "ner", "metadata": {"in_sentence": "Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\""}}, {"text": "Ram Sarup Gupta", "label": "OTHER_PERSON", "start_char": 5773, "end_char": 5788, "source": "ner", "metadata": {"in_sentence": "Governor of Delhi made a Reference under s. 10 read with s. 12(5) of the Act to the Labour Court, Delhi, to deter.nine :\n\n\"Whether the terminations of services of S/Shri H. S.\n\nRawat, Bidhi Chand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled?\"", "canonical_name": "Ram Swarup Gul'ta"}}, {"text": "September 27, 1972", "label": "DATE", "start_char": 6274, "end_char": 6292, "source": "ner", "metadata": {"in_sentence": "By an order, dated September 27, 1972, the Labour Court accepted the objection, holding :\n\n\" that no industrial dispute came into existence before this reference as the workmen have failed to establish serving of demand on the management prior to this reference."}}, {"text": "25.l 0.1972,", "label": "DATE", "start_char": 6921, "end_char": 6933, "source": "ner", "metadata": {"in_sentence": "Thereafter, the workmen on 25.l 0.1972, raised a dispute by serving demand notices on the Management."}}, {"text": "September D 27, 1972", "label": "DATE", "start_char": 7345, "end_char": 7365, "source": "ner", "metadata": {"in_sentence": "The Management raised, inter alia, a preliminary objection that a second Refere, ncc within one year of the first 'award', dated September D 27, 1972, was not competent in view of what is contained in sec."}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 7417, "end_char": 7424, "source": "regex", "metadata": {"statute": null}}, {"text": "2.5.1973", "label": "DATE", "start_char": 7456, "end_char": 7464, "source": "ner", "metadata": {"in_sentence": "By an order dated 2.5.1973, the Labour Court dismissed the preliminary objections."}}, {"text": "H. S. Rawat", "label": "OTHER_PERSON", "start_char": 8206, "end_char": 8217, "source": "ner", "metadata": {"in_sentence": "As regards H. S. Rawat, !", "canonical_name": "H. S.\n\nRawat"}}, {"text": "Rawat", "label": "OTHER_PERSON", "start_char": 8404, "end_char": 8409, "source": "ner", "metadata": {"in_sentence": "The Court therefore held that Rawat was entitled to reinstatement and continuity of service with 50% back wages till the award came into operation and he got his reinstatement."}}, {"text": "1-5-1975", "label": "DATE", "start_char": 8595, "end_char": 8603, "source": "ner", "metadata": {"in_sentence": "This award was made by the Labour Court on 1-5-1975."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8675, "end_char": 8683, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Delhi", "label": "COURT", "start_char": 8711, "end_char": 8730, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Delhi."}}, {"text": "27.9.1972", "label": "DATE", "start_char": 8875, "end_char": 8884, "source": "ner", "metadata": {"in_sentence": "Only\n\nthree contentions were canvassed by the Management at the preliminary hearing before the High Court : ( i) That the determination, dated 27.9.1972, by the Labour Court was an 'award' as defined ins."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 8983, "end_char": 8988, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 9118, "end_char": 9123, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 10142, "end_char": 10149, "source": "regex", "metadata": {"statute": null}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 11100, "end_char": 11109, "source": "ner", "metadata": {"in_sentence": "Shri G. B. Pai has reagitated all the three points before us.", "canonical_name": "G. B. Pai"}}, {"text": "Pai", "label": "OTHER_PERSON", "start_char": 11238, "end_char": 11241, "source": "ner", "metadata": {"in_sentence": "i) Mr Pai's argument is that the determination, dated 27.9.1972, also, was an 'award' within the second part of the definition of the term in e. 2(b) of the Act, inasmuch as it determined a question relating to an industrial dispute."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 11590, "end_char": 11598, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 11756, "end_char": 11761, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 12198, "end_char": 12203, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad lligh Court", "label": "COURT", "start_char": 12830, "end_char": 12851, "source": "ner", "metadata": {"in_sentence": "Reference bas also been made to a single Bench Judgment of the Allahabad lligh Court in Workmen of Swadeshi Cotton Mills Co. Ltd. v Swadeshi Cotton Mills Co., Ltd., Kanpur and ors.(2)\n\nAs against this, Shri M. K. Ramamurthi maintains that the Labour Court's order, dated May 1, 1972, was not an 'award' within the definition of the term in s. 2(b) inasmuch as it was not a determination, on merits, of any industrial dispute or of any question relating C to an industrial dispute."}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 12974, "end_char": 12990, "source": "ner", "metadata": {"in_sentence": "Reference bas also been made to a single Bench Judgment of the Allahabad lligh Court in Workmen of Swadeshi Cotton Mills Co. Ltd. v Swadeshi Cotton Mills Co., Ltd., Kanpur and ors.(2)\n\nAs against this, Shri M. K. Ramamurthi maintains that the Labour Court's order, dated May 1, 1972, was not an 'award' within the definition of the term in s. 2(b) inasmuch as it was not a determination, on merits, of any industrial dispute or of any question relating C to an industrial dispute.", "canonical_name": "M. K. Rarnarnurthi"}}, {"text": "May 1, 1972", "label": "DATE", "start_char": 13038, "end_char": 13049, "source": "ner", "metadata": {"in_sentence": "Reference bas also been made to a single Bench Judgment of the Allahabad lligh Court in Workmen of Swadeshi Cotton Mills Co. Ltd. v Swadeshi Cotton Mills Co., Ltd., Kanpur and ors.(2)\n\nAs against this, Shri M. K. Ramamurthi maintains that the Labour Court's order, dated May 1, 1972, was not an 'award' within the definition of the term in s. 2(b) inasmuch as it was not a determination, on merits, of any industrial dispute or of any question relating C to an industrial dispute."}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 13107, "end_char": 13114, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 13869, "end_char": 13873, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 14176, "end_char": 14183, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 14187, "end_char": 14197, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 14759, "end_char": 14774, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 15043, "end_char": 15053, "source": "regex", "metadata": {"statute": null}}, {"text": "27-9-1972", "label": "DATE", "start_char": 17201, "end_char": 17210, "source": "ner", "metadata": {"in_sentence": "There is no dispute that the order on the earlier Reference was made by the Labour Court on 27-9-1972, while the second Reference with the same terms of Reference to that Court was made by tho Government on 2.5.1973, i.e., within one year of the earlier order."}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 17538, "end_char": 17545, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17906, "end_char": 17910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 17956, "end_char": 17963, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 2", "label": "PROVISION", "start_char": 18452, "end_char": 18458, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 18624, "end_char": 18631, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 10", "label": "PROVISION", "start_char": 19315, "end_char": 19322, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 19848, "end_char": 19852, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 10", "label": "PROVISION", "start_char": 19884, "end_char": 19891, "source": "regex", "metadata": {"statute": null}}, {"text": "27.9.72", "label": "DATE", "start_char": 20264, "end_char": 20271, "source": "ner", "metadata": {"in_sentence": "Now let us test the Labour Court's order, dated 27.9.72 in the light of the above enunciation."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 21610, "end_char": 21618, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 22457, "end_char": 22464, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 22526, "end_char": 22535, "source": "ner", "metadata": {"in_sentence": "Ramaswami J., speaking for the Court, repelled this contention."}}, {"text": "s. 19", "label": "PROVISION", "start_char": 23144, "end_char": 23149, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 23157, "end_char": 23180, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sec. 19", "label": "PROVISION", "start_char": 23489, "end_char": 23496, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 23886, "end_char": 23896, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 23955, "end_char": 23975, "source": "ner", "metadata": {"in_sentence": "for holding thatl the earlier reference was not barred by anything contained in sub-section (3) or other provisions of section 19, c\n\nWe have gone thrqugh the single Bench decision o~ the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd. case\n\n(supra)."}}, {"text": "Workmen of Swadeshi Cotton Mills Co. Ltd.", "label": "ORG", "start_char": 23979, "end_char": 24020, "source": "ner", "metadata": {"in_sentence": "for holding thatl the earlier reference was not barred by anything contained in sub-section (3) or other provisions of section 19, c\n\nWe have gone thrqugh the single Bench decision o~ the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd. case\n\n(supra)."}}, {"text": "28 . 10. 1972", "label": "DATE", "start_char": 24557, "end_char": 24570, "source": "ner", "metadata": {"in_sentence": "The next submission of Mr, Pai is that since the demand for reinstatement was not duly made by the workmen before 28 ."}}, {"text": "Ramamurthi", "label": "OTHER_PERSON", "start_char": 24707, "end_char": 24717, "source": "ner", "metadata": {"in_sentence": "On the other hand, Mr. Ramamurthi maintains that such a claim F was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966."}}, {"text": "25. 10. 1972", "label": "DATE", "start_char": 24965, "end_char": 24977, "source": "ner", "metadata": {"in_sentence": "While conceding that technically, no demand notice for reinstatement was served by the workmen on the Management before 25."}}, {"text": "25.10.1972", "label": "DATE", "start_char": 25543, "end_char": 25553, "source": "ner", "metadata": {"in_sentence": "After taking into consideration all the circumstances of the case, we are of opinion that the Labour Court was not justified in awarding compensation to the workmen, for wages relating to the H period prior to 25.10.1972 i.e., the date on which the demand notices for reinstatement were served on ihe Management."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 26545, "end_char": 26553, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Swarup Gupta", "label": "OTHER_PERSON", "start_char": 26775, "end_char": 26791, "source": "ner", "metadata": {"in_sentence": "The findmgs of the Labour Court to the effect, that after their dismissal, Ram Swarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find on!", "canonical_name": "Ram Swarup Gul'ta"}}, {"text": "Ram Swarup Gul'ta", "label": "OTHER_PERSON", "start_char": 29247, "end_char": 29264, "source": "ner", "metadata": {"in_sentence": "For the foregoing reasons, we dismiss this appeal with the modification that in addition to the relief of reinstatement with continuity of service, S/Shri H. S. Rawat and Ram Swarup Gul'ta shall be entitled to 50%, and full back wages, respectively, from 25.10.1972.", "canonical_name": "Ram Swarup Gul'ta"}}]}
{"document_id": "1977_3_33_34_EN", "year": 1977, "text": "1 ·\n\nRANA SHEO AMBAR SINGH v.\n\nALLAHABAD BANK LTD.\n\nFebruary 18, 1977\n\n[l\\I. H. BEG, C. J., A. C. GUPTA :~ND P. S. KAii.ASAM, JJ.]\n\nExecution of. a 1nort:;:age decree-Proprietary ri1d1ts in Sir, Khudkhast land and grove land )\\,'hicll were n1ortgaged 1vere extilu.:uisill'd and the Bliumidari rig/it an altogether new right created by U.P. Zaniindari Abolition and Land Reforms Act. 1950 (U.P. Act 1 of 1951 )-Jf'i'let1ier trees being a part of a grove are included in the \"grore-land\" which V!!!ifS in th:J U.P. State Governnunt free frqm all encun1brances-Scove of ectio-i 6(a) (i). 6(/i) and 1~ of the U.P. Zamindari Abolition & Land Refor1ns Act, 1950.\n\nIn Rana Sileo A1nbar Singh v. Allahabad Bank Ltd., Allaliabad (1962) - 2 SCR p.441, this Court held that the respondent could not enforce his nghts ur, der the mortga_ge by the sale of the new Bhumila1i rights created in favour of the mortgagor by s. 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and that the respondent could only enforce his rights against the appellant in the manner provided under s. 6(h) of the Act read with s. 73 of the Transfer of Property Act, and follo\\v the compensation awarded to the intermediary. Despite this decision having been brought to the notice in the execution proceedings initiated by the respondent attachment of the trees in groves belonging to the ap{'.lellant was ordered by 1he executing Court taking the view that there is a distinction behveen the tr.'!es and a grove and grove land.\n\nThe Di iision Bench of the Allahabad High Court (Lucknow Bench). upheld the views of the Executing Court and dismissed the aopeat.\n\nAllO\\\\'ing the appeal by certificate, the Court,\n\nHELD : ( 1 )_ The vieW that there is a dis_tinction beh.\\'een trees and a grove ar.d p:rove land and, therefore exect1tion aga:nst trees in groves could be proceeded against cannot be accepted in the light of th~ definition of the intermediary\n\ng:rove under s. 3(13) of the U.P. Zamindari Aboiition and Land Reforms Act, 1950, viz., \"intermediary's grOve\" means grovland held or occupied by an intermediary as uch. [34 : D-E, H]\n\n(2) Groves are only collection of trees in plots of land so as io preclude cultivation in them. The uncut trees are deemed to be parts of the la-nd. The proposition is W_!ll settled under the general la\\v. that trees, before they are cut, fcrm parts of 'land'. And are inseparable part is ahvays included in the \\\\'hole.\n\n[34E-FJ\n\n(3) Section 18(1)(a) of the Act provide that an \"intermediary grove\" is bhumidary property.\n\nRights in it are parts of bhumidari rights. [34F] ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2041 of 19~. . .\n\n(From the Judgment and Decree dated 2.2.1966 of the Allahabad High Court (Lucknow Bench) Lucknow in First Execution Appeal No 5/62).\n\nS. N. Pre.sad, for the appellant.\n\nG. C. M:11hur and 0. P. Rana for the respondent.\n\nThe Judgment of the Court was delivered by ••\n\nBEG. C.J.-'01is appeal by certificate raises the simple question whether :ertain trees, said to be part of a grove, are included in\n\nSUPREME COURT REPORTS\n\nU 9771 3 SC.R.\n\ngrove-land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), vests in the State of Uttar Pradesh free from all encumbrances. This very question was raised by the respondent-decree holder in the. execution proceedings in this very case, between the same parties which came to this Court on an earlier occasion.\n\nWe have perused the judgment of this Court reported in 1962 (2) S.C.R. 441, in the case.\n\nWe find that the position taken by the respondent-decree-holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these continued to vest in the intermediary.\n\nThis Court rejected that submission and held that after vesting of all the rights mentioned in section 6 Gf the Act in the State of Uttar Pradesh, new bhumidhari rights came mto existence under section 18 of the Act.\n\nIt also held that the only way in which a mortgagee could enforce his right against the mortgagor after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the Transfer of Property Act, 1882, so that nothing more than the compensation awarded to the intermediary could be proceeded agaimt by the mortgagee.\n\nWe are surprised that, even after that decision which, according to the appellant-judgment-debtor, constitutes a complete answer to any further execution proceedings iu respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between trees and a grove and groveland, should have been upheld by a Division Bench of the Allahabad High Court (Lucknow Bench).\n\nWe find that it is impossible for us to accept this opinion in view of the definition Olf the intermediary's groveunder section 3 (l 3) of the Act, which says : \"intermediary's grove' means grove-land held or occupied by an intermediary as such.\" This means that \"grove- Jand\" and \"\" \"intermediary's grove\" are equated.\n\nAnd groves are only collectioi; s of trees iu plots of land so as to preclude cultivation in them.\n\nThe uncut trees are deemed to be parts of the \"land''.\n\nSection 18 (I) (a) of the Act provides that an \"intermediary's grove\" is bhumidhari property. Rights in it are part of bhumidhari rights.\n\nAfter these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove-land.\n\nThe proposition is well settled, under the general Jaw, that trees, before they are cut, form parts of 'land'.\n\nAnd, an inseparable part is always included in the whole. In view of this very clear legal position, we allow this appeal\n\nmid set aside the judgments and decrees of the High Court and the Execution Court with costs.\n\nll S.R.\n\nAppeal allowed.", "total_entities": 29, "entities": [{"text": "RANA SHEO AMBAR SINGH", "label": "PETITIONER", "start_char": 5, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "RANA SHEO AMBAR SINGH", "offset_not_found": false}}, {"text": "February 18, 1977", "label": "DATE", "start_char": 52, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "February 18, 1977\n\n[l\\I. H. BEG, C. J., A. C. GUPTA :~ND P. S. KAii."}}, {"text": "l\\I. H. BEG", "label": "JUDGE", "start_char": 72, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 92, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Zaniindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 340, "end_char": 381, "source": "regex", "metadata": {}}, {"text": "Allahabad Bank Ltd", "label": "RESPONDENT", "start_char": 688, "end_char": 706, "source": "metadata", "metadata": {"canonical_name": "ALLAHABAD BANK LTD", "offset_not_found": false}}, {"text": "s. 18", "label": "PROVISION", "start_char": 906, "end_char": 911, "source": "regex", "metadata": {"linked_statute_text": "Zaniindari Abolition and Land Reforms Act", "statute": "Zaniindari Abolition and Land Reforms Act"}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 924, "end_char": 970, "source": "regex", "metadata": {}}, {"text": "s. 6(h)", "label": "PROVISION", "start_char": 1076, "end_char": 1083, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "s. 73", "label": "PROVISION", "start_char": 1105, "end_char": 1110, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 1118, "end_char": 1142, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court (Lucknow Bench)", "label": "COURT", "start_char": 1534, "end_char": 1570, "source": "ner", "metadata": {"in_sentence": "The Di iision Bench of the Allahabad High Court (Lucknow Bench)."}}, {"text": "s. 3(13)", "label": "PROVISION", "start_char": 1947, "end_char": 1955, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "Zamindari Aboiition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 1968, "end_char": 2014, "source": "regex", "metadata": {}}, {"text": "Section 18(1)(a)", "label": "PROVISION", "start_char": 2454, "end_char": 2470, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Aboiition and Land Reforms Act, 1950", "statute": "Zamindari Aboiition and Land Reforms Act, 1950"}}, {"text": "S. N. Pre.sad", "label": "OTHER_PERSON", "start_char": 2796, "end_char": 2809, "source": "ner", "metadata": {"in_sentence": "S. N. Pre.sad, for the appellant."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 2852, "end_char": 2859, "source": "ner", "metadata": {"in_sentence": "P. Rana for the respondent."}}, {"text": "BEG. C.J.-'01is", "label": "PETITIONER", "start_char": 2928, "end_char": 2943, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by ••\n\nBEG."}}, {"text": "section 6(a)", "label": "PROVISION", "start_char": 3125, "end_char": 3137, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 3154, "end_char": 3200, "source": "regex", "metadata": {}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 3261, "end_char": 3274, "source": "ner", "metadata": {"in_sentence": "C.J.-'01is appeal by certificate raises the simple question whether :ertain trees, said to be part of a grove, are included in\n\nSUPREME COURT REPORTS\n\nU 9771 3 SC.R.\n\ngrove-land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act), vests in the State of Uttar Pradesh free from all encumbrances."}}, {"text": "section 6", "label": "PROVISION", "start_char": 3932, "end_char": 3941, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "section 18", "label": "PROVISION", "start_char": 4031, "end_char": 4041, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "section 6(h)", "label": "PROVISION", "start_char": 4198, "end_char": 4210, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act, 1950", "statute": "Zamindari Abolition and Land Reforms Act, 1950"}}, {"text": "section 73", "label": "PROVISION", "start_char": 4233, "end_char": 4243, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 4251, "end_char": 4281, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allahabad High Court (Lucknow Bench", "label": "COURT", "start_char": 4829, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "We are surprised that, even after that decision which, according to the appellant-judgment-debtor, constitutes a complete answer to any further execution proceedings iu respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between trees and a grove and groveland, should have been upheld by a Division Bench of the Allahabad High Court (Lucknow Bench)."}}, {"text": "section 3", "label": "PROVISION", "start_char": 4988, "end_char": 4997, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "Section 18", "label": "PROVISION", "start_char": 5345, "end_char": 5355, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_343_350_EN", "year": 1977, "text": "...\n\nBOARD OF TRUSTEE OF THE PORT OF BOMBAY A v.\n\nINDIAN GOODS SUPPL YING CO.\n\nMarch 21, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nD<'murrage-Demurrage claimed as per the scale framed under 3. 43A of the Bombay Port Trust Act (Act 6 of 1879) and approved by the Central Govern- 1nel}t-Whether the claim of demurrage by the Port Trust for the period du.ring whzch the goods were detained with it in respect of Import Trade Control formalities is maintainable-Whether the D.O. letter dated 7-9-1952 fro1n the Central Government to the Port Trust, a direction under s. 43B (lA) of the Act.\n\nThe appellant, a statutory body framed the scales of rates of demurrage of C goods under section 43 (a) of the Bombay Port Trust Act 1879 which wa~ sanctioned by the Central Government.\n\nLater on the Central Government in its D.0. letter dated 7th September 1952 addressed to the appellant expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reruions beyond hi!! control. It also expressed its hope that the appellant would reconsider its deci- !; ion and fall in line with the practice of the Calcutta and Madras Ports. Th• Port considered this letter and after taking into consideration the several circumstances suggested that demurrage may be levied on a graded scale and the Central D (Jovernment did not take any further action. In fact, the appellant has pre~ cribed reduced demurrage levy from the expiry of the free days.\n\nIn respect of the three consignments of Chinese newsprint imported by the respondent for home consumption in India, the appellant claimed demurrag• for the period from March 25, 1957 and as the amount wa~ not paid the goods were sofd in public auction. The respondent thereafter filed a suit for recovery of a sum of Rs. 24,950 /- and interest thereon from the appellant being the\n\naggregate loss sustained by it. The appellant denied that liability and pleaded that it was, in law, entitled to collect the .demurrage levied on the respondent and as it failed to pay the demurrage, the appellant was entitled to sell the good~ by auction.\n\nThe City Civil Court, Bombay decreed the suit with interest at 6 per cent per annum from the date of the suit till judgment and thereafter ai 4 per cent per annum and costs of the suit. The appeal preferred by the appellant to the High Court failed and the decree stood confirmed.\n\nThe decretal amount deposited in the High Court during the pendency of the appeal was withdrawn by the respondent.\n\nAllowing the appeal by special leave the Court,\n\nHELD : (I) The High Court was in error in holding that the importer of tho goods cannot be held responsible for any delay not attributable to his own default and that dernurrage under s. 43(a) could never be imposed as long <i~ rhe goods were detained for the purpose of the operation of the Import Trade Control regulations. [350 El\n\n(2) The D.O. letter addressed by the Government of India should not 1'1 construed as a direction calling upon the Board to modify any portion of the scale framed by the Port Trust. The language of the D.0. wonlJ idicate that the Government wanted the .Port Trust to consider the Governments proposal\n\nnnd nothing further.\n\nThe Port Trust considered 1-he proposal and made it~ report.\n\nSection 43B(1A) has no application to thi~ case.\n\n[346 F-HJ\n\n(3) It is no doubt true that before clearance i111 given by the Import Trade Control Authorities and the Customs Authoritie\", the good:'! cannot be cleare<l H by the importer. Neither can the Port Tn1st deliver the goods without the con~\n\nent of the Import Trade Control Authorities. Tak_ing into acout the hardship caused to the importer because of the delay certa1~ conccsions 1n demurrac:e\n\nrates are permitted.\n\nA~ the scales of rates are permitted by virtue of the statutory\n\npowers conferred on the Board under s. 43 and as the rates have been approvctl by the Central Governmet u!'der s. 43B, the rates have the force of law and cannot questioned. Taking into account the hardship to the importers certaiu conces~1on has beeJI given bu~ the legality of the rate which are being levied accordmg lo law cannot also be questioned. [347 C-D; J;-F]\n\nTrustees of the Port of Madra. v. Mis Aminclwnd Pyare/a/ & Ors. [1976] -.....\n\nSCR 721, followed. 1\n\n( 4) Even tougb the delay _in clearing the goods was not due to the negligen:e of the importer for which he should be held responsible yet he cannot avoid the pa_Yf!lent of drnurrage as the rates imposed are under the authority of law, the vahd1ty of which cannot be questioned, In the instant case the claim of the appellant cannot be resisted as there is no evidence that the delay was d_ue to any act of the Port Trust or persons for whom the Port Trust is respon- Sib!e. [349 G-H]\n\n. Aktieselskabet Reidar v. Arcos, Limited [1927] 1 K. B. 352; Budgett & Co. v.\n\nB1pprngton & Co. [1891] 1 Q. B. p. 35 and Compania Crystal De Vapores of Panama v. Herman & Molwr:a (lndia) Ltd. [1953] 2 All. E. R. 508, quoted with approval.\n\n(5) Section 43, 43A and 43B of the Bombay Port Trust Act 1891 which n1ake reference to \"free days\" are intended only to omit Sundays, other holidays or on which the assessment of customs duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not been compJeted. [350 C-D]\n\n(6) Under the powers vested in the Board, it is its statutory duty to collect the rates, to have a lien on the goods and seize and detain the goQds until such rates are fully paid.\n\nThe Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged or when the goods are not removed from its premises within the limited time. [347 A-BJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1353 of 1975.\n\n(Appeal by Special Leave from the Judgment and Order dated 1-11-1974 of the Bombay High Court in Appeal No. 493 of 1966 from original Decree.)\n\nF. S. Nariman, B. R. Zaiawala, B. S. Bisaria, J. B. Dadachanji,\n\n0. C. Mathur, K. J. John and Shri Narain, for the appellants.\n\nP. H. Parekh and Miss Manju Jetely, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal by special leave is preferred by the Board of Trustees of the Port of Bombay against the judgment of the Bench of the. Bombay High Court in first appeal confirming the decree passed by the City Civil Court and dismissing the appeal with costs. The respondents, Indian Goods Supplying Co., a partnership firm in Bombay, filed suit No. 3304 of 1959 in the Bombay City Civil Court at Bombay praying for a decree against the Trustees of the Port of Bombay in the sum of Rs. 24,950 with interest.\n\nThree consignments of Chinese newsprint were imported by the respondents for home consumption in India.\n\nThe first 2 consignments arrived on February 16,\n\n1957. Suffice it to say that the clearance of the two consignments as well as the third consignment\n\n_.,\n\nwas considerably delayed and the Port Trust claimed demurrage for the period from March 25, 1957. The respondents disputed the right of the Port Trust to charge any demurrage for the period during which the goods were detained by the Customs authorities for analytical test as well as for the Import Trade Control formalities.\n\nIt is common ground that so far as the period for analytical test certified by the Customs authorities is concerned the Port Trust cannot charge demurrage. But so far as the period during which the goods were detained for the Import Trade Control formalities by the Cos-· toms authorities the Port Trust claimed demurrage.\n\nDue to protracted correspondence between the parties the goods were not cleared and ultimately the suit was filed by the respondents for recovery of a 8'lm of Rs. 24,950 and interest thereon from the Port Trust being the aggregate loss sustained by them.\n\nThe appellants denied that liability and pleaded that the Port Trust was in law entitled to collect the demurrage levied on the respondents and that as they failed to pay the demurrage the Port Trust was entitled to sell the goods by public auction.\n\nThe City Civil Court, Bombay, decreed the suit for a sum of Rs. 24,950 with interest at the rate of 6 per cent per annum from the date of the suit till judgment and thereafter at 4 per cent per annum and costs of the suit.\n\nThe appellants preferred an appeal to a Division Bench of the- Bombay High Court which dismissed the appeal and confirmed the\n\ndecee passed by the City Civil Court.\n\nWhert the appeal was pending before the High Court the appellants deposited the decretal amount in court which was withdrawn by the respondents.\n\nMr.\n\nNariman, counsel for the Port Trust, stated that the Port Trust does not want to ask for the repayment of the money and that he will confine himself to the question of the correctness of the decision of the Bombay High Court holding that the Port Trust is not entitled to collect demurrage in the circumstances of this case. It is therefore sufficient for the purposes of the appeal to confine ourselves to determining the question of law which has been raised before the High Court and decided by it.\n\nThe question that was raised before the H; gh Co.urt wa~ wheter the claim of demurrage by the Port Trust for the penod durmg which the goods were detained with the Port Trust in respect of Import Trade Control formalities is maintainable.\n\nThe High Court held that the importer df the goods cannot be held responsible for any delay not attributed to his own default and that he iporter who_se goods are detained by the Customs Departent 1s enttled to clun the clearance of goods without demurrage durmg the penod for which the Customs Department has detained them.\n\nThe appellants, the Board of Trustees of the Port. of Bombay, H is a statutory body constituted by the Bombay Port Trust Act. Act 6 of 1879 and is a body corporate.\n\nChapter VI of the Act relates to Revenue nd Expenditure and provides for levy of rates.\n\nSection\n\n43 empowers the Board to frame a scale of tolls, dues, rents, rates and charges to be levied for each or any of the matters enumerated m clauses {a) to (d). Sub-section (a) enables framing of scale of rates relating to the landing, shipping, wharfage, cranage, storage or demurrage of goods.\n\nWe are concerned with the framing of the scale of rates for demurrage of goods.\n\nSection 43B (I) requires that every scale framed by the Board shall be submitted to the Central Government for sanction and, when so sanctioned and published in the Bombay Government Gazette, shall have the force of law; and subject to the like sanction and publication, may from time to time be amended or added to by the Board. It is admitted that the Board framed a scale of rights for demurrage of goods and the scale so framed by the Board was submitted to the Central Government and was sanctioned by the Central Government and published by the Bombay Government in the Gazette as required.\n\nThe result is that under section 43B (I) the scales so framed by the Board and approvrd by the Central Government shall have the force of law.\n\nThe learned counsel for the appellants as the Port Trust in this appeal have given up its claims to refund of the money taken by the respondents. In view of this the counsel for the respondents confined his arguments to supporting the view taken by the High Court regarding the question of law.\n\nHe submitted that the Central Government had taken action under section 43B (IA) and had called upon the Board to modify the operation of such scales and therefore the Board was bound to modify the scales accordingly.\n\nThis contention is based on a D. 0. letter dated 7th September, 1952 addressed by the Government of India to the Port Trust which is typed at page 350 of the Supplement Paper Book No. 2.\n\nIn the D. 0. letter the Government expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reasons beyond his control. The letter concluded by expressing an earnest hope that the Bombay Port Trust will reconsider their decision and fall in line with the practice of the Calcutta and Madras Ports. It concluded by stating \"We shall be grateful if you will kindly place the matter before the Trustees for their favourable consideration and intimate to us the result.\" The Board considered this letter and after taking into consideration the several circumstances, suggested that demurrage may be levied on a graded scale.\n\nThe Government of India was informed of the Resolution of the Board and no further action was taken by the Government.\n\nThe D. 0. letter addressed by the Government of fndia cannot be considered as a direction by the Central Government calling upon the Board to modify any portion of the scale framed by the Port Trust.\n\nThe language of the D. 0. would indicate that the Government wanted the Port Trust to consider the Government's proposal and nothin~ further.\n\nThe Port Trust considered the proposal and made its report.\n\nWe are unable to accept the plea of the learned counsel for the respondents that the D. 0. Jetter should be construed as a direction calling upon the Board to modify the portion of the scale framed by the Board. Section 43B (IA) has therefore no application to this case.\n\nBOARD 01' TRUSTBB v. IN)JIAN GOODS co. (Kailasam, l.) 347\n\nChapter VII of the Port Trust Act enumerates the powers and functions of the Board. It is the duty of the Board to recover the rates to have a lien on the goods and seize and detain the goods until such rates are fully paid.\n\nThe Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged. It can also dispose of goods not removed from the premises of the Board within the time limited.\n\nSection 65 also provides the mode of application of proceeds of the sale.\n\nUnder section 66 the Board is entitled to distrain for non-payment of rates.\n\nThe Port clearance shall not be granted till the rates are paid.\n\nIt is thus a statutory duty of the Board to collect the ras prescribed.\n\nThe contention put forward on behalf ol the respondents is that they are in no way responsible for the delay in clearing the goods as the goods had been detained under the Import Trade Control Regulations. It is no doubt true that before clearance is given by the Import Trade Control authorities and the Customs Department the goods cannot be cleared by the respondents.\n\nNeither can the Port Trust deliver the goods without the consent of the Import Trade Control authorities.\n\nTaking into account the hardship caused to the importer because of the delay certain concessions in demurrage rates are permitted. The Port Trust has prescribed the reduced demurrage\n\nkvy which is I/6th of the normal rate from the date of expiry of the free days up to the 60th day, 1 /3rd of the normal rate after the expiry of the 60th day, upto the 90'.h day, half the normal rate after the expiry of the 90th day up to the 120ch day, 2/3rd of the normal rate after the expiry of the !20th day upto the 150th day nd at the full rate after the expiry of the 150th day.\n\nAs the scale of rates are framed by virtue of the statutory powers conferred on the Board under section 43 and as the rates have been approved by the Central Government under section 43B the rates have the force of Taw and cannot be questioned.\n\nTaking into account the hardsh'p to the importers certain concession has been given but the legality of the rates which are being levied according to law cannot be questioned.\n\nThis view was taken by this Court in a recent decis'on reported in Trustees of the Port of Madras v. Ml s. Aminchand Pyarelal & Ors. (') Where it had to consider the validity of the scale of rates fixed by the Madras Port Trust.\n\nIn a suit by the Port Trust against the importer and the Union of India and the Customs authorities to recover the balance of demurrage amounting to about rupees three Iakhs the question arose whether the scale of charges in the Port Trust Regulations under the heading \"Demurrage\" was void and ultra vires for the reason that it was unreasonable and not within the authority of the Port Trust.\n\nThe relevant provisions of the Bombay Port Trust Act with which we are concerned are in pari materia with the provis:ons of the Madras Act which fell for consideration by the Supreme Court.\n\nThe Supreme Court held that the scale of rates and statement of conditions framed by the Madras Port Trost under sections 42, 43 and\n\n43A are not by-laws\n\n(I) [1976] I S.C.R. 721.\n\n348 SUPREME COURT REPotll's [1977'1 ':i s.c.R.\n\nand the sections confer authority on the Board to frame a scale of rates at which and a statement or conditions under which any of the services specified therein shall be performed. It observed \"The Board's power to frame a scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done.\n\nThe rates and conditions govern the basis on which the Board performs the services mentioned in sections 42, 43 and 43-A. Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board.\" The Court rejected the view of the High Court that demurrage being a charge for wilful failure to remove the goods within the free period can be levied only if the failure to remove the goods is due to the fault or negligence of the importer or his agent.\n\nIt also did not agree with the view taken by the High Court that the authority given to the Board to frame the scale of rates can be exercised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had defaulted or was negligent in clearing the goods. Justice Chandrachud, who spoke for the Court, observed in his judgment at page 736 supra that the statute had not placed any limitation on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42. The Court proceeded to observe in rejecting the view of the High Court that the Board cannot fix rates of demurrage when the failure to remove was not due to some fault or negligence of the importer, that there is no such fetter on the Board's powers to fix the rates. This decision of the Supreme Court is on all fours with the facts of the present case and concludes the question.\n\nMr. Nariman, counsel for the appellants cited three decisions tif the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claiming the demurrage is responsible for the delay. In Aktieselskabet Reidar v. Arcos, Limited ('), Lord Justice Atkin in answering the question whether if th\" charterer has failed to complete the loading of the ship wjthin the lay days, and the ship during the demurrage days becomes, without the default of the shipowner, unable to carry as much cargo as she would have carried if loaded within the lay days, but receives from the charterer a full cargo for her diminished capacity, the loss falls upon the charterer in addition to the demurrage, expressed his opinion that the decision should be for the shipowner.\n\nIt was held that \"The result of the authorities appears to be that in a contract fixing a number of lay days and providing for days at demurrage thereafter, the charterer enters into a binding obligation to load a complete cargo within the lay days subject to any default by the shipowner or to the operation\n\n(1) [1927] I K.B. 354.\n\n~- •\n\n.,.\n\nof any exceptions, matters which do not arise in Ibis 'case., ..\n\nIf however, for reasons other Ihan the shipowner's . default, !he charterer becomes unable to do that which he contracted to do--\n\nnamely, put a full and complete cargo on board during Ihe fiXed laydays, the breach is never repaired, !he damages are not completely mitigated, and the shipowner may recover !he loss !hat he. has. incurred in addition to his liquidated demurrage or his unliquidated damages for detention.\" Thus it appears clear !hat claim of demurrage cannot be resisted unless where the detention was due to the shipowner's default.\n\nIn the present case Ihe Port' Trust's claim for demurrage cannot be denied unless it is proved that the delay was due to the Port Trust itself. ·\n\nIn Budgett & Co. v. Binnington & Co., (') a clause in the charterparty fixed the number of Jay-days for unloading and allowed other days for dcmurrage.\n\nDuring the lay-days a strike took place bolh amoog the labourers employed on behalf of the ship aud those employed by the consignees, with the result. that the unloading ceased, and could not be resumed till some days after the expiration of the lay-days. The Court of Appeal held that as the number of lay-days was fixed the consignees were liable to pay demurrage, nctwithstanding the inability of the shipowners, owing to the strike, to do their part in the unloading.\n\nThe test that was laid down by Lord Esher Master of the Rolls, was.\n\nHas the 'hipowner failed in his duty through any default of his own or of persons for whom he is responsible? As the non-delivery was occasioned by something which the shipowner could not foresee or by the act of persons o-1er w horn he\n\nhad any control it was held that he was not liable.\n\nJn Compania Crystal De Vapores of Panama v.\n\nHerman & Mohatta (India) Ltd., (') Justice Devlin quoted with approval the law laid down by Lord Esher in Budgett Co. v. Binnington & Co. (supra) which is in the following terms :-\n\n\"if the shipowner by any act of his has prevented the discharge, then, 'though the freighter's contract is broken, he is excused', he was referring to a case in which the shipowner's act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge. But here the act of the shipowner which delayed the discharge was not a breach of any obligation of his.\"\n\nThe position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rates imposed are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due-to any act of the Port Trust or persons for. whom the Port Trust is responsible.\n\n(I) [1891) l Q.B. p. 35.\n\n(2) [1953) 2 All. E.R. 508.\n\nOne other contention which was raised before the High Court but was not dealt with by it may be referred to.\n\nIt was submitted on behalf of the respondents that the definition of the words \"free days\" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty may not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days. ln !he scale of rates charged at the docks framed by the Bombay Port Trust under sections 43, 43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days.\n\nUnder the heading \"Free Days\" it is provided that all goods will be allewed storage in Docks free of rent for 5 days.\n\nIt is further provided that in computing the number of free days Sundays and holidays referred to in by-Jaw 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act.\n\nThe submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed.\n\nThis contention cannot be accepted as these Rules are intended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not been completed.\n\nThe High Court was therefore in error in holding that . the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as Jong as the goods were detained for the purpose of the operation of the Import Trade Control Regulation11.\n\nIn the result the appeal is allowed but due to the concession made by the learned counsel for the Port Trust there will be no order directing the refund of the money that had already been deposited by the Port Trust and withdrawn by the respondents.\n\nThe appellant also does not press his counter claim.\n\nThere will be no order as to costs in this appeal.\n\nS.R.\n\nAppeal allowed. •\n\n.y.", "total_entities": 73, "entities": [{"text": "BOARD OF TRUSTEE OF THE PORT OF BOMBAY", "label": "PETITIONER", "start_char": 5, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "Board of Trustees of the Port. of Bombay", "offset_not_found": false}}, {"text": "INDIAN GOODS SUPPL YING CO", "label": "RESPONDENT", "start_char": 50, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "INDIAN GOODS SUPPLYING CO", "offset_not_found": false}}, {"text": "March 21, 1977", "label": "DATE", "start_char": 79, "end_char": 93, "source": "ner", "metadata": {"in_sentence": "March 21, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nD<'murrage-Demurrage claimed as per the scale framed under 3."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 96, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 113, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ", "label": "JUDGE", "start_char": 129, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "7-9-1952", "label": "DATE", "start_char": 508, "end_char": 516, "source": "ner", "metadata": {"in_sentence": "43A of the Bombay Port Trust Act (Act 6 of 1879) and approved by the Central Govern- 1nel}t-Whether the claim of demurrage by the Port Trust for the period du.ring whzch the goods were detained with it in respect of Import Trade Control formalities is maintainable-Whether the D.O. letter dated 7-9-1952 fro1n the Central Government to the Port Trust, a direction under s. 43B (lA) of the Act."}}, {"text": "s. 43B", "label": "PROVISION", "start_char": 583, "end_char": 589, "source": "regex", "metadata": {"statute": null}}, {"text": "section 43", "label": "PROVISION", "start_char": 697, "end_char": 707, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Port Trust Act 1879", "label": "STATUTE", "start_char": 719, "end_char": 745, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 774, "end_char": 792, "source": "ner", "metadata": {"in_sentence": "The appellant, a statutory body framed the scales of rates of demurrage of C goods under section 43 (a) of the Bombay Port Trust Act 1879 which wa~ sanctioned by the Central Government."}}, {"text": "7th September 1952", "label": "DATE", "start_char": 852, "end_char": 870, "source": "ner", "metadata": {"in_sentence": "letter dated 7th September 1952 addressed to the appellant expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reruions beyond hi!!"}}, {"text": "Calcutta", "label": "GPE", "start_char": 1197, "end_char": 1205, "source": "ner", "metadata": {"in_sentence": "ion and fall in line with the practice of the Calcutta and Madras Ports."}}, {"text": "Madras", "label": "GPE", "start_char": 1210, "end_char": 1216, "source": "ner", "metadata": {"in_sentence": "ion and fall in line with the practice of the Calcutta and Madras Ports."}}, {"text": "India", "label": "GPE", "start_char": 1644, "end_char": 1649, "source": "ner", "metadata": {"in_sentence": "In respect of the three consignments of Chinese newsprint imported by the respondent for home consumption in India, the appellant claimed demurrag• for the period from March 25, 1957 and as the amount wa~ not paid the goods were sofd in public auction."}}, {"text": "March 25, 1957", "label": "DATE", "start_char": 1703, "end_char": 1717, "source": "ner", "metadata": {"in_sentence": "In respect of the three consignments of Chinese newsprint imported by the respondent for home consumption in India, the appellant claimed demurrag• for the period from March 25, 1957 and as the amount wa~ not paid the goods were sofd in public auction."}}, {"text": "City Civil Court, Bombay", "label": "COURT", "start_char": 2179, "end_char": 2203, "source": "ner", "metadata": {"in_sentence": "The City Civil Court, Bombay decreed the suit with interest at 6 per cent per annum from the date of the suit till judgment and thereafter ai 4 per cent per annum and costs of the suit."}}, {"text": "s. 43(a)", "label": "PROVISION", "start_char": 2806, "end_char": 2814, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 2994, "end_char": 3013, "source": "ner", "metadata": {"in_sentence": "350 El\n\n(2) The D.O. letter addressed by the Government of India should not 1'1 construed as a direction calling upon the Board to modify any portion of the scale framed by the Port Trust."}}, {"text": "Section 43B(1A)", "label": "PROVISION", "start_char": 3342, "end_char": 3357, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43", "label": "PROVISION", "start_char": 3920, "end_char": 3925, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 43B", "label": "PROVISION", "start_char": 3995, "end_char": 4001, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 43, 43A and 43B", "label": "PROVISION", "start_char": 5087, "end_char": 5110, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Port Trust Act 1891", "label": "STATUTE", "start_char": 5118, "end_char": 5144, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5791, "end_char": 5819, "source": "ner", "metadata": {"in_sentence": "347 A-BJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "1-11-1974", "label": "DATE", "start_char": 5913, "end_char": 5922, "source": "ner", "metadata": {"in_sentence": "(Appeal by Special Leave from the Judgment and Order dated 1-11-1974 of the Bombay High Court in Appeal No."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 5930, "end_char": 5947, "source": "ner", "metadata": {"in_sentence": "(Appeal by Special Leave from the Judgment and Order dated 1-11-1974 of the Bombay High Court in Appeal No."}}, {"text": "F. S. Nariman", "label": "JUDGE", "start_char": 5998, "end_char": 6011, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, B. R. Zaiawala, B. S. Bisaria, J. B. Dadachanji,\n\n0."}}, {"text": "B. R. Zaiawala", "label": "JUDGE", "start_char": 6013, "end_char": 6027, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, B. R. Zaiawala, B. S. Bisaria, J. B. Dadachanji,\n\n0."}}, {"text": "B. S. Bisaria", "label": "JUDGE", "start_char": 6029, "end_char": 6042, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, B. R. Zaiawala, B. S. Bisaria, J. B. Dadachanji,\n\n0."}}, {"text": "B. Dadachanji", "label": "JUDGE", "start_char": 6047, "end_char": 6060, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, B. R. Zaiawala, B. S. Bisaria, J. B. Dadachanji,\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 6066, "end_char": 6075, "source": "ner", "metadata": {"in_sentence": "C. Mathur, K. J. John and Shri Narain, for the appellants."}}, {"text": "Narain,", "label": "LAWYER", "start_char": 6097, "end_char": 6104, "source": "ner", "metadata": {"in_sentence": "C. Mathur, K. J. John and Shri Narain, for the appellants."}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 6126, "end_char": 6138, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh and Miss Manju Jetely, for the respondent."}}, {"text": "Manju Jetely", "label": "LAWYER", "start_char": 6148, "end_char": 6160, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh and Miss Manju Jetely, for the respondent."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 6227, "end_char": 6235, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal by special leave is preferred by the Board of Trustees of the Port of Bombay against the judgment of the Bench of the."}}, {"text": "Board of Trustees of the Port of Bombay", "label": "ORG", "start_char": 6289, "end_char": 6328, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal by special leave is preferred by the Board of Trustees of the Port of Bombay against the judgment of the Bench of the."}}, {"text": "Indian Goods Supplying Co.", "label": "ORG", "start_char": 6513, "end_char": 6539, "source": "ner", "metadata": {"in_sentence": "The respondents, Indian Goods Supplying Co., a partnership firm in Bombay, filed suit No."}}, {"text": "Bombay City Civil Court at Bombay", "label": "COURT", "start_char": 6606, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "3304 of 1959 in the Bombay City Civil Court at Bombay praying for a decree against the Trustees of the Port of Bombay in the sum of Rs."}}, {"text": "February 16,\n\n1957", "label": "DATE", "start_char": 6886, "end_char": 6904, "source": "ner", "metadata": {"in_sentence": "The first 2 consignments arrived on February 16,\n\n1957."}}, {"text": "Nariman", "label": "LAWYER", "start_char": 8706, "end_char": 8713, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nNariman, counsel for the Port Trust, stated that the Port Trust does not want to ask for the repayment of the money and that he will confine himself to the question of the correctness of the decision of the Bombay High Court holding that the Port Trust is not entitled to collect demurrage in the circumstances of this case.", "canonical_name": "Nariman"}}, {"text": "Board of Trustees of the Port. of Bombay", "label": "PETITIONER", "start_char": 9795, "end_char": 9835, "source": "ner", "metadata": {"in_sentence": "The appellants, the Board of Trustees of the Port.", "canonical_name": "Board of Trustees of the Port. of Bombay"}}, {"text": "Chapter VI of the Act", "label": "STATUTE", "start_char": 9941, "end_char": 9962, "source": "regex", "metadata": {}}, {"text": "Section\n\n43", "label": "PROVISION", "start_char": 10030, "end_char": 10041, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Section 43B", "label": "PROVISION", "start_char": 10413, "end_char": 10424, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Bombay Government", "label": "ORG", "start_char": 10964, "end_char": 10981, "source": "ner", "metadata": {"in_sentence": "It is admitted that the Board framed a scale of rights for demurrage of goods and the scale so framed by the Board was submitted to the Central Government and was sanctioned by the Central Government and published by the Bombay Government in the Gazette as required."}}, {"text": "section 43B", "label": "PROVISION", "start_char": 11036, "end_char": 11047, "source": "regex", "metadata": {"statute": null}}, {"text": "section 43B", "label": "PROVISION", "start_char": 11515, "end_char": 11526, "source": "regex", "metadata": {"statute": null}}, {"text": "7th September, 1952", "label": "DATE", "start_char": 11719, "end_char": 11738, "source": "ner", "metadata": {"in_sentence": "letter dated 7th September, 1952 addressed by the Government of India to the Port Trust which is typed at page 350 of the Supplement Paper Book No."}}, {"text": "Bombay Port Trust", "label": "ORG", "start_char": 12128, "end_char": 12145, "source": "ner", "metadata": {"in_sentence": "The letter concluded by expressing an earnest hope that the Bombay Port Trust will reconsider their decision and fall in line with the practice of the Calcutta and Madras Ports."}}, {"text": "Section 43B", "label": "PROVISION", "start_char": 13307, "end_char": 13318, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter VII of the Port Trust Act", "label": "STATUTE", "start_char": 13427, "end_char": 13460, "source": "regex", "metadata": {}}, {"text": "Section 65", "label": "PROVISION", "start_char": 13853, "end_char": 13863, "source": "regex", "metadata": {"linked_statute_text": "Chapter VII of the Port Trust Act", "statute": "Chapter VII of the Port Trust Act"}}, {"text": "section 66", "label": "PROVISION", "start_char": 13934, "end_char": 13944, "source": "regex", "metadata": {"linked_statute_text": "Chapter VII of the Port Trust Act", "statute": "Chapter VII of the Port Trust Act"}}, {"text": "section 43", "label": "PROVISION", "start_char": 15293, "end_char": 15303, "source": "regex", "metadata": {"statute": null}}, {"text": "section 43B", "label": "PROVISION", "start_char": 15372, "end_char": 15383, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Port Trust", "label": "ORG", "start_char": 15830, "end_char": 15847, "source": "ner", "metadata": {"in_sentence": "Where it had to consider the validity of the scale of rates fixed by the Madras Port Trust."}}, {"text": "Union of India", "label": "ORG", "start_char": 15907, "end_char": 15921, "source": "ner", "metadata": {"in_sentence": "In a suit by the Port Trust against the importer and the Union of India and the Customs authorities to recover the balance of demurrage amounting to about rupees three Iakhs the question arose whether the scale of charges in the Port Trust Regulations under the heading \"Demurrage\" was void and ultra vires for the reason that it was unreasonable and not within the authority of the Port Trust."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 16421, "end_char": 16434, "source": "ner", "metadata": {"in_sentence": "The relevant provisions of the Bombay Port Trust Act with which we are concerned are in pari materia with the provis:ons of the Madras Act which fell for consideration by the Supreme Court."}}, {"text": "sections 42, 43 and\n\n43A", "label": "PROVISION", "start_char": 16550, "end_char": 16574, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPotll's", "label": "COURT", "start_char": 16622, "end_char": 16645, "source": "ner", "metadata": {"in_sentence": "348 SUPREME COURT REPotll's [1977'1 ':i s.c."}}, {"text": "sections 42, 43 and 43", "label": "PROVISION", "start_char": 17123, "end_char": 17145, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 17944, "end_char": 17955, "source": "ner", "metadata": {"in_sentence": "Justice Chandrachud, who spoke for the Court, observed in his judgment at page 736 supra that the statute had not placed any limitation on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42."}}, {"text": "section 42", "label": "PROVISION", "start_char": 18420, "end_char": 18430, "source": "regex", "metadata": {"statute": null}}, {"text": "Nariman", "label": "LAWYER", "start_char": 18820, "end_char": 18827, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman, counsel for the appellants cited three decisions tif the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claiming the demurrage is responsible for the delay.", "canonical_name": "Nariman"}}, {"text": "Atkin", "label": "JUDGE", "start_char": 19165, "end_char": 19170, "source": "ner", "metadata": {"in_sentence": "In Aktieselskabet Reidar v. Arcos, Limited ('), Lord Justice Atkin in answering the question whether if th\" charterer has failed to complete the loading of the ship wjthin the lay days, and the ship during the demurrage days becomes, without the default of the shipowner, unable to carry as much cargo as she would have carried if loaded within the lay days, but receives from the charterer a full cargo for her diminished capacity, the loss falls upon the charterer in addition to the demurrage, expressed his opinion that the decision should be for the shipowner."}}, {"text": "Esher", "label": "OTHER_PERSON", "start_char": 21442, "end_char": 21447, "source": "ner", "metadata": {"in_sentence": "The test that was laid down by Lord Esher Master of the Rolls, was."}}, {"text": "Devlin", "label": "JUDGE", "start_char": 21854, "end_char": 21860, "source": "ner", "metadata": {"in_sentence": "Jn Compania Crystal De Vapores of Panama v.\n\nHerman & Mohatta (India) Ltd., (') Justice Devlin quoted with approval the law laid down by Lord Esher in Budgett Co. v. Binnington & Co. (supra) which is in the following terms :-\n\n\"if the shipowner by any act of his has prevented the discharge, then, 'though the freighter's contract is broken, he is excused', he was referring to a case in which the shipowner's act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge."}}, {"text": "sections 43, 43A and 43B", "label": "PROVISION", "start_char": 23508, "end_char": 23532, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Port Trust Act, 1879", "label": "STATUTE", "start_char": 23540, "end_char": 23567, "source": "regex", "metadata": {}}, {"text": "section 20", "label": "PROVISION", "start_char": 23991, "end_char": 24001, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Port Trust Act, 1879", "statute": "the Bombay Port Trust Act, 1879"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 24013, "end_char": 24024, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 43A", "label": "PROVISION", "start_char": 24777, "end_char": 24788, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_351_364_EN", "year": 1977, "text": "MOT! NATWARLAL & ORS.\n\nRAGHA VAYYA NAGINDAS & CO.\n\nMarch 21, 1977\n\n[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.J\n\nBombay High Court original side Rule.\" 1957-Rules 569, 573-Whether a Solicitor's bill of co.<ot for work done in court subordinate to High Court can be taxed by the Taxing Master of High Court-Whether it can be taxed 01z the original side scale-Legal Practitioners' Fees Act 1926-Section 4-..Sectian 224 (l)(d) of Govt. of India Act 1935-Rules framed thereunder-Bombay City Civil Courts Act 1948-Sec.tion 18(2) of the Bon1bay City Civil Court Rules 1948.\n\nCertain properties belonging to the appellants \\Vere attached by the Citv Civil Court in Bombay in execution of a decree. The appel1ant engaged the respondent firm of Solicitors who by Vakalat executed in their favour by the appella..nts agreed to act, appear and plead for them in the City Civil c'ourt.\n\nThe respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment. Thereafter, they submitted three bills.\n\nSince the bills remained unpaid, they obtained an order fron1 the Prothonotary of the High Court directing the Taing Master to tax the bills. The aPpellants filed an appeal against the order of the Prothonotary which was dismissed by the Chamber Judge with liberty to the Taxing Master to decide whether the respondents were entitled to be remunerated on the original side scale of fees as between an attorney and client.\n\nThe Taxing Master rejected the appellants' contention and taxed the respondents' bills according to the scale of fees applicable on the original side by the High Court. A Chamber Summons filed by the appellants before a Single Judge was dismissed. An appeal before the Division Bench by the_ appellants also failed.\n\nIn an appeal by Special Leave the appellnnts contended :\n\n1. The $olicitors' bill for cost and remuneration in respect of the work done by them in the City Civil Court cannot be taxed by the Taxing !\\{aster of the Original Side, High Court.\n\n2. The bill in any event cannot be taxed according to the scale of fees applicable on the original side as bet\\veen an attorney and client, particularly in view of the provisions contained in the Legal Practitioners' Fees Act, 1926, Bombay City Civil Courts Act, 1948 and the Bombay City Civil Court Rules, F 1948 as well and the rules framed bv the Bombay High Court under section 224(1) (d) under the Government of India Act, 1935.\n\nDismissing th~ appeal,\n\nHELD : I. Rule 569 of the Rules of the High Court of Bombay (Origin.I side) 1957, authorises the Taxing Master to tax the bills of cost on ev<!ry side of the High Court except the Appellate side of the High Court and in the Insolvency Court. All other bills of cost of attorneys shall also be taxed by hin1 G when be is directed to do so by a Judge's order. There is no justification for the apnellants' contention thatl \"other bills of cost\" mut be construed to mean other bills of cost relating to matters_ on the original side of the High Court.\n\nRule 573 as amended prescribed a limitation of 5 years for lodging the bill of cost for taxation after the disposal of the suit or the proceedings in the High Court. In respect of matters which are not the subject of any proceedings in the High Court the attorney ha.;; to lodge his bill of cost for taxation within 5 years from the completion of the matter.\n\nThe necessity for making this provision arose because rule 568 empowers the Taxing Master to tax the attorneys' bill of H cost in all matters except those on the Appellate side of the High Court. The Bombay High Court, over a long course of years has consistently taken tl1e view that the Taxing Master has jurisdiction to tax attorneys' bills of cost in relation\n\n8-436SCI/77\n\nA to the_ professiona, I services rendered by them whichever be the court in relation !O which the sef\".1ces are rendered except the Appellate side of the High Court, in regard to which an exception has been expressly carved out by the 111 le\n\n[354 G-H, 355 A-0] .\n\nNowroji Fudumji Sirdar v. Kanga & Savani, 28 Born. L.R. 384, Chitnis & Kanga v. Wanianrao S. Mantri, 46 Born. L.R. 76 and Mis. Pereia Fazalblzoy & Co. v. The Rajputana Cold Storage & Refrigeration Ltd., 65 Born. L.R. 87\n\n. B approved .\n\n. . 2. The preamble and the statement of objects and reasons of the Legal _Practitioners Fees Act 1926 shows that the Act was passed in order to give effect to the recomm.e!'-dations of the Indian Bar Committee that in any case in which a Legal Practitioner has acted or agreed to act he should be liable to be sued for negligence and be entitled to sue for his fees.\n\nThe Indian Bar Commjttee recomended by para 42 of its report that the distinction relating to suing for negligence and being sued for fees was not of great importance since suits by or against Legal Practitioners in respect of fees and the conduct of cases were extremely_ rare.\n\nBut it was necessary to provide that in any case in which a Legal Practitioner had acted or agreed to act he should be liable to be !\\Ued for negligence and be entitled to su~ for his fees.\n\nThe definition of Legal Practitioner in the 1926 Act is the same as in the Legal Practitioners Act, 1879 (which includes an attorney). Section 3 of the Act of 1926 provides that any Legal Practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and fees to be paid for his professional services. Section 4 of the Act provides that any such Legal Practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement or if no such fee has been settled a fee computed in accordance with the law for the time being in force in regard to the computation of the cost to be awarded to a party in respect of the fee of his Legal Practitioner.\n\nIt may be that if an attorney institutes a suit he may be governed by section 4 but it really confers an additional right on the Legal Practitioner to institute a suit and cannot be con~ strued as detracting from any other right which he may possess in regard to the taxation and recovery of hi< fees. [358 G-H, 359 A-B, F-H]\n\n3. The High Court was in error in observing that alternatively there \\Vas an apparent conflict between section 4 of the 1926 Act and the original side rules relating to the taxation of an attorney's bills of cost. Bearing in mind the true object anc.l purpose for which the 1926 Act \\Vas passed and the drive of secton 4, there is no conflict, apparent or real between the 1926 Act and the High Court Rules of 1957.\n\n[360 D-E]\n\n4. The rules framed by the High Court under section 224(1 )(d) of _the 1935 Act, are rules for fixing and regulating the fees payable as costs by any party in respect of the fees of his adversary's attorney. These rules according to their very terms have nothing to do with the taxation of any attorney's bill of cost as between himself and his O\\Vn client.\n\n[360 F-G]\n\n5. The combined effect of section 4 of the 1926 Act and the Rules framed by the High Court under section 224 ( 1) (d) is that if an attorney-Who has appeared or acted for his client in the City Civil Court sues his client for fees he cannot recover in the suit anything more than what is permissible under the Rules framed by the High Court under sect!on 224(1)(d). Howe\"\".er, that c\"!..O _not af(ec, t.the right of an attorney to have his bill taxed by the Taxing Master on the ong1nal\n\nside scale. [361 C-Dl\n\n6. Section 18(2) of the Bombay Cit~ Civil Courts Act .. 194? provides that in respect of suilci transferred from the High Courl to the City Ct\"\".il Court cost~ incurred in the High Court till the date of the transfer of t_he suit are to be assessed bv the city Civil Court in such man.ner as the State Government n1ay after consultation with the High C-Ourt determine by rules. Rule 2 framed l}nder section 18(2) provides that even as regards the fees of attorneys the Re~1strar\n\nof the City Civil Court is _given the -power to tax nd allow all such costs and out of pocket expenses as shall have been properly incurred by au attorney upto the 1tate of transfer of the - suit. The nlle further provides that nfter the date\n\n• •\n\n--· ..._.,,\n\nM. NATWARLAL v. R. NAGINDAS & co. (Cha11drachud, !.) 353\n\nof the transfer such fees shall be taxed and allowed as in the opinion of the A Registrar are commensurate with the work done by the advocate having regard to the scale of fees sanctioned for the advocates in the City Civil Courts Rules.\n\nThe said rule, applies only to transferred suits. It has no application to the suits\n\nand .proceedings instituted in the City Civil Court after 148. [361 D-H]\n\nM/s. Sandersons & Morsans v. Mohan/al Lalluchand Shah, A.I.R. [1955) Cal 319 distinguished.\n\n7. The Taxing Master, however, before allowing the cost claimed by the attorney from his client must have regard to the fact that the actomey ha~ appeared in a subordinate court and to the scale of fees generally prevalent in that Court. [363 G-Hl\n\nThe Court observed that power similar to the power of taxation of a bill of costs betv1een the advocate and client which is found in Supreme Court Rule~.\n\n1966, should be conferred on appropriate officers of the Court subordinate to the High Court.\n\nSuch a power may enable the presiding Judge to c.ontrol the professional ethics of the advocates appearing before them more effectively than is possible at present. [362 A-Gl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1317 of 1975.\n\nlfrom the Judgment and Order dated 8-10-197 4 of the Bombay High tourt in Appeal No. 73 of 197 4)\n\nP. H. Parekh and Miss Manju Jelley, for the Appellant S. K. Dholakia and R. C. Bhatia, for the respondent.\n\nF. S. Nariman and B. R. Aggarwal, for the intervener.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J. A question of practical importance concerning the dying profes'sion of Solicitors arises in this appeal by special leave.\n\nThe question is whether the bill of costs of a Solicitor or an Attorney who 'has rendered professional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale.\n\nThe dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and therefore the question is not of growing importance. All the same, though the question will by and by cease to have the importance which it has to-day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal.\n\nCertain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary. The appellants appeared in the execution proceedings through a firm of Solicitors, Mis Raghavayya Nagindas & Co., respondents herein, who by the vakalatnama executed in their' favour by the appellants, agreed to act, appear and plead for them in the City Civil Court.\n\nThe respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960. Thereafter, they submitted three bills to the appellants for their costs and remuneration.\n\nSince the bills remained unpaid, the respondents obtained on February 8, 1972 an order from the Prothonotary of the High Court directing the Taxing Master to tax the bills\n\nG •\n\nThe appellants appealed against the order of the Prothonotary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether\n\nrnspondents were entitled to be remunerated on the Original Side scale of fees, as between au Attorney and client.\n\nThe Taxing Master rejected the a2pellants' contention, taxed the respondents' bills according to the scale of fees applicable on the Onginal Side of the High Court and directed the issuance of an allocatnr.\n\nBefore the respondents could obtain a payment order on the basis of the allocatur, the appellants took out a Chamber Summons on May 7, 1973 challenging the order of the Taxing Master.\n\nThat Chamber Summons was dismissed by the Chamber Judge whose decision has been confirmed in appeal by a Division Bench.\n\nThree contentions were raised by the appellants in the High Court : ( 1) A Solicitor's bill for costs and remuneration in respect of the work done by him in the City Civil Court cannot be taxed by the Taxing Master, Original Side, High Court; (2) The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client; and ( 3) The recovery of the amount taxed by the Taxing Master is barred by limitation under art. 113 of the Limitation Act, 1963.\n\nThe High Cowt rejected all these contention~ by its judgment d, jlted October 8, 1974.\n\nMr. Parekh, appearing for the appellants before us, did not .press the third point regarding limitation and rightly so. Article 113 of the Limitation Act, though residuary, applies to suits and cannot govern , the special form of remedy available to the Attorneys for recovering their fee's.\n\nProcedings in pursuance of that remedy are governed by rule 573(ii) (a) of the Original Side Rules and the proviso thereto.\n\nThe proceedings for recovery of fees under those provisions are not barred by time.\n\nCounsel has, however, pressed the first two contentions with some zeal.\n\nWe wiU first take up for consideration the primary question whether the Taxing Master has jurisdiction at <tll to tax an Attorney's bill of costs for professional services rendered by him to his client in connection with a litigation in a court other than the Bombay High Court, in this case the City Civil Court.\n\nRule 569 of \"The Rules o[ the High Court of Bombay (Original Side), 1957\" affords, in our opinion, a complete answer to the appellants' contention that the Taxing Master who is an officer of the Original Side of the Hh Court has no jurisdiction to tax the Attorneys' bills in regard to work done by them in matters other than those on the Original Side. Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric\n\n\"The Taxing Office\". The rule reads thus :\n\n\"569. The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court.\n\nAll other bills of costs of Attorneys shall also be taxed by him when he is directed to do 8o by a Judge's order.\"\n\nM. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 355\n\n'I_be rule consists of two parts of which the first part confers jurisdic- A t1on on the Taxing Master to tax the bills of costs on every ide of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court.\n\nIf the rule were to stop with the first part, it would have been possible to say that the Taxing Master has no jurisdiction to tax the bills in regard to matters outside the High Court.\n\nBut the second parts of the rule puts the matter beyond doubt by providing that all other bills B of costs of Attorneys shall also be taxed by the Taxing Master.\n\nIt is argued on behalf of the appellants that \"other bills of costs\" must be\n\nccmstrued to mean \"other bills of costs relating to matters on the Original Side of the High Court\" and bills relating to non-contentious matters. We see no jurisdiction for cutting down the scope of the second part o~ the rule by putting a limited meaning on words of width used therein. \"All other bills of costs of Attorneys\" to which C the second part of the rule refers must mean all bills of costs of Attorneys other than those which are referred to in the first part of the rule.\n\nThat we conceive to be the plain meaning of the particular provision.\n\nRule 573 which was amended by Slip No. 190 !l]so shows that the Taxing Master has jurisdiction to tax the bills of Att.orneys in regard D to professional services rendered. by them in matters outside the High Court. Amended rule 573(i) (a) provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in \"every suit or proceeding in the High Court\" an Attorney 'shall lodge his bill of costs for taxation within five years after the disposal of the suit or the proceeding, and if an appeal is filed in the High Court, within five years from the disposal of the appeal.\n\nAmend- E ed rule 573(ii)(a) provides that subject to the proviso and to the Chamber Judge's discretion, \"Iu the case of matters which are not the subject of any proceedings in the High Court, an attorney shall lodge his bill of cosfs for taxation within five years from the completion of the matter.\" This latter rule prescribes the time within which an Attorney must lodge his bill of costs in regard to matters which are not the subject of any proceedings in the High Court.\n\nThe necessity F for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys' bills of . costs in .all matters except !hose on the Appellate Side of the , High .Court. The appellants' contention, if accepted, will render rule 573 (ii)( a) otiose because according to that contention, no matter which is not the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court could be taken before the Taxing Master for G taxation of the Attorney's bills. It was then useless to provide that bills in rep:ard to matters which are not the subject of any proceeding in the High Court must be filed within a particular period.\n\nApart from what appears to us to be the only reasonable construction of rule 569, the Bombay High Court, over a long course of years, has consistently taken the view that the Taxing Master has H jurisdiction to tax Attorneys' bills of costs in relation to professional services rendered by them in all matters, contentious or non-contentious, and whichever be the Court in relation to which the services\n\nare rendered, except the Appellate Side of the High Court in regard to which an exception has been expressly carved out by the rule. In Nowroji Pudumji Sirdar v. Kange & Savani(1) the appellants were represented by the respondent firm of Solicitors in litigation in the District Court and the Subordinate Courts of Poona.\n\nThe appellants having declined to pay the respondents' bills on the ground that they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Master.\n\nIn an appeal from the decision of the Chamber Jndge _who upheld the Prothonotary's order, it was contended by the appellants that the 'faxing Master had no jurisdiction to tax the bills of the respondents, firstly because the bills pertained to work which was not connected with the Original\n\nSide of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader.\n\nThese contentions were rejected by a Division Bench consisting of Sir Norman Macleod, C. J., and H. C. Coyajee, J., who could \"see no reason\" why a Solicitor practising in Bombay and performing professional services for a client regarding business in the mofussil 'should not be entitled to get his bills taxed by tqe Taxing Master on the Original Side of the High Court.\n\nIn coming to this conclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957.\n\nThe High Court observed i11 Nowroji's case that it may be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 of 1920, with regard to any work done i11 mofu'ssil Courts aft1r the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents. had lodged their bills was done before that Act bad come into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowroji's case is not good law after the coming into force of the Bombay Pleaders Act. It is not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowroji's case and for good reason which we will expiate while dealing with the appellants' contention bearing on the scale of fees according to which the bills can be taxed.\n\nThe relevant rule, couched iu identical language, with which the High Court was concerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court.\n\nIn Chitnis & Kanga v. Wamanrao S. Mantri( 2 ) the appellants, a firm of Solicitors, had obtained from the Prothonotary of the High Court an order under rule 534 of the Rules of 1936; directiM the Taxing Master to tax their bill of costs relating to (1) a suit filed on the Original Side of the High Court, (2) a petition for probate in the District Court at Satara, (3) an appeal in the Hir.Jt Court on its\n\n(l) 28 Born. L.R. 384.\n\n(2) 48 Born. L.R. 76.\n\nM. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 357\n\nAppellate Side and ( 4) certain miscellaneous work done in the mofus- A sil. . The res110ndent, to whom the appellants had rendered these professional services, contended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items (2),\n\n(3) and (4). The Taxing Master rejected that contention whereupon the respondent took out a Chamber Summons submitting that it was not competent to the Attorneys to take advantage of the pro-. .cedure that applies to taxation of Solicitors' costs ou the Original Side B of the High Court in respect of costs incurred in the mofussil and on the Appellate Side of the High Court.\n\nThe respondent further contended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had no jurisdiction to tax the' appellants' bill in regard to items 2, 3 and 4.\n\nThe Chamber Judge set aside the ex-parte order of the Prothonotary without a speaking order, against which the c appellants filed an appeal which was heard by Sir John Beaumont, C. J., and Kania, J. The Division Bench held that the order of the\n\nProthonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rnle 534 of the Rules of 1936. As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara District Court D and the miscellaneous work done 1n the mofussil, the Court following the decision in Nowroj(s case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master. of the Original Side, although it related to work done in the mofussil.\n\nAdverting to the observation made in Nowroji's case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had no effect on the question in issue.\n\nE The learned Chief Justice referred in his judgment to s. 17 of the Act of 1920 which provided that a legal practitioner (which expression included an Attorney) may enter into a special agreement as to the terms of his remuneration and to s. 18 which dealt merely with the amount of pleader's fees which could be recoverea against the opposite party.\n\nThese provision's, according to the High Court, had nothing to do with the question whether an Attorney's bill of costs F in regard to the work done by him in the mofussil co1lld be taxed by the Taxing Master.\n\nin Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master's power to tax the Attorneys' bilfs.\n\nTn that .case the appellants had rendered professional services to the G respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan. Respondents raised the same contenions which are rised by Mr. Parekh before us, namely, that the Prothonotary had no jurisdiction to pass the order directing the Taxing Master to tax the bill and secondly, that the bill of costs could not be taxect on the Original Side scale.\n\nRelying upon the decision in Nowroji (supra), the learned Judge held that by reason of rule 569, H the very rule with which we are concerned in the instant case, an\n\n(l) 65 Bom. L.R. 87.\n\nAttorney of the High Court was entitled to have his bill of costs taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court The karned Judge also negatived the second contention of the respondents before him, but we will turn to that part of the judgment later.\n\nThese decisions of the High Court contain a correct exposition of the relevant rule which was numbered a:s Rule No.494 in the Rules of 1922, No. 534 in the Rules of 1936 and is now Rule No. 569 in the Rules of 1957. The Rules of 1909 also contained a similar rule bearing No. 491. It is important to mention from the point of view of 'legislative' history, that prior to the framing of the 1909 rules, the. corresponding rule was Rule 544 of the 1907 Rules which, in material respects, was worded differently. It said :\n\n\"Rules 544.\n\nThe Taxing Officer shall tax the bills of costs on every side of the Court (Except the Appellate Side) and in the Insolvency Court.\n\nHe shall also tax all such attorney's bills of costs as he may be directed to tax by a Judge's order on consent of the parties, or on the application by any party chargeable with the bill.\"\n\nUnder this rule, the Taxing Officer could tax the bills referred to in the second part of the rule by consent of parties only or if an application was made for taxation of the bill by a person chargeable with the bill.\n\nFurther, the second part of Rule 544 did not contain the expression \"Aii other bills of costs\" (emphasis supp!ieo) which is to be found in the corresponding rule since the framing of the 1922 Rules.\n\nThe significant changes introduced in 1922 are directed at conferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appeJ .. late side of the High Court.\n\nIt is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot he taxed on the Original Side scale in view of the provisions contained in the Legal Practitioners (Fees) Act, 21 of 1926. We see no substance in this submission.\n\nThe statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fee~. Prior to the Passing of the Act of 1926, various High Courts in India had held aim~! consistently that Vakils could be sued for negligence in the discharge of their professional duties and were entitled to sue for their fees but Barristers could neither be sued for negligence nor could they sue for their fees.\n\nTi)e Indian Bar Committee recommended by paragraph 42 of its report that in practice, the distinction relating to suing for negligence and being sued\n\nM. NATWARLAL v. R. NAGINDAS & co. (Chandrachud, J.) 359\n\nfor fees was not of great importance since suits by or against legal practitioners in respect of fees and the conduct of c&ses were extremely rare; but it was necessary to provide that in any case in which a legal practitioner had 'acted' or 'agreed to act', he should be liable to be sued for negligence and be entitled to sue for his fees. The Jong title of the Act of 1926 describes it as an Act \"to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities tg be sued in respect of negligence in the discharge of their professional duties.\" The preamble of the Act is in the same terms. Section 2(a) of the Act defines a 'legal practitioner' to mean a legal practitioner as defined in s. 3. of the Legal Practitioners Act, 1879 according to which a 'legal practitioner' means \"an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent\".\n\nSection 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by - private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services.\n\nSection . 5 of the Act provides that no legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempf from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.\n\nSection 4 of the Act of 1926 which is the sheet anchor of Mr. Parekh's\n\nugumcnt reads thus :\n\n\"4. Right of legal practitioner to sue for fees.\n\nAny such fogal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.\" In the first place, as explained aliove, the Act of 1926 was passed for an entirely different purpose with which we are not concerned in .the present case.\n\nSecondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal note, with a limited question viz., the right of a legal practitioner to sue for his fees.\n\nIt may be that since an Attorney is included within the meaning of the expression 'legal practitioner', he will be governed by the provisions contained in s. 4 of the Act of 1926 if he brings a suit for the recovery of his fees.\n\nBut we are not concerned in this case to deJermine the scope and extent of an Attorney's right to sue for his fees.\n\nIt must further be borne in mind that s. 4, which is in two parts, provides in the first place that a legal practitioner 'shall be entitled' to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement.\n\nThis part of the section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any other right which they may possess in regard to the tax-ation and recovery of their fees.\n\nSection 4 provides by its second part that if there is no agreement between the legal practitioner and hls client in regard to the fees payable to him, he shall be entitled to institute and\n\nmaintain legl proceedings for the recovery of a fee c'omputed in the manner provided therein.\n\nThis also is in the nature of an entitlement, the right rcognisect thereby being the right to bring a suit to\n\nr.eover the fees In the absence of an agreement.\n\nAnj' legal practitioner who wants to enforce the right which is specially created and\n\nconfeed by the Act. of 1926 will have to comply with the conditions on which that nght 1s conferred.\n\nWhen a statute creates a special nght, .. 1t can on1l:' be enforced in the manner and subject to the conditions prescnbed by the statute.\n\nTherefore, the fees for the recovery of wnich legal proceedings are brought under s. 4 cannot be anY. larger than the fees computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.\n\nBut, as we have stated earlier, the provisions of the Act of 1926 arc entirely be\"side the point.\n\nThey have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale.\n\nThe Bombay High Court in the judgment under appeal thought that there was an apparent conflict between s. 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an Attorney's bill of costs.\n\nWe would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was paSsed and the drive of s. 4 thereof, there is no conflict, apparent or real, between any of the provisions of tne Act of 1926 and the rules of taxation contained in the Original Side Rules of 1957. In that view. it is unnecessary to resort to the principle of harmonious construction which the High Court alternatively relied upon for holdTug that the Taxing Master has the jurisdiction to tax the respondents' bill in the instant case and on the Original Side scale.\n\nMr .. Parekh then relied upon the rules framed by the Bombay High Court under s. 224(1) (d) of the Government of India Act, 1935 which corresponds roughly to art. 227(3) of the Constitution and contended that the respondents' bills must be taxed in accordance with those rules and not according to the scale prescribed by the Original Side Rules. This contention too is unacceptable. The rules on which counsel relies were framed by the High Court \"for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversary's Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court.\" These rules, according to their very terms, have nothing to do with the taxation of any Attorney's bill of costs as between himself and his own client. The rules govern the fees payable by way of costs by any party in the Gity Civil Court, in respect of the fees of his adversary's Attorney.\n\nThat is to say, if an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recover from his adversary by way of professional charges incurred by him, The fees computed in accordance with lhe rules framed under _'s. 224(1) (d) <?f tbe Government of India Act and not what he has m fact paid to his\n\nM. NATW, ARLAL v. R. NAGINDAS & co. (Clu111drachud, J.) 3611\n\nAttorney: Rule 9 on which counsel relies particularly, makes this A position clear by providing :\n\n\"9. Where costs are awarded to a party in any proceeding the amount of the Attorney's fee to be taxed in the bill of costs is recoverable by such party if represented by an Attorney from the adversary and shall be computed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practitioner's (Fees) Act, 1926, for a lesser amount in which case not more than such lesser amount shall be recoveral:ile.\"\n\nThe combined effect of this rule and s. 4 of the Legal Practitioners :(Fees) Act, 1926 is that iJf an Attorney who has appeared or acted C for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything mor~ than is permissible under the rules framed by the High Court under s. 224(1) (d) of the Government of India Act, 1933. Neither those rules nor anything contained in the Act of 1926 is calculated to affect the Attorney's right to have his bill taxed by< The Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court.\n\nThe Bombay City Civil Court Act, 69 of 1948, provides! by s. 18 ( 1) that all suits and proceedings cognizable by the City Civil Court and pending in the High Court, in which issues have not been settled or evidence has not been recorded shall be transferred to the City Civil Court. Bys. 18(2), costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after tonsultation with the High Court determine by rules.\n\nMr. Parekh drew our attention to rule 8 framed by the Government of Bombay under s. 18 (2) but we do not see its relevance on the issue under consideration in the instant case.\n\nThat rule shows that even as regards the iees o!f Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such costs and out of pocket expenses as sh; i.ll have been properly incurred by an Attorney up to the date of the transfer of the suit.\n\nThe rule further provides that after !he date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the Advocate having regard to the scale of f~ sanctioned for the Advocate in the City Civil. Court by the High Court.\n\nRule 2, being a rule framed under s. 18(2) of the Act of 1948, governs transl'erred suits only and it expressly authorises the Registrar to tax the Attorney's bill for the work done in such suits both before arid af!er the transfer of the suit from the High Court to the Citv Civil Court. There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under s. 18(2) cannot support the appellants'. contention.\n\nMr. Parekh also drew our attention to the \"Rules of the Bombay City Civil Court, 1948\" framed by the Bombay High Court under s. 224 of the Government of India Act, 1935 but we see nothing\n\nA in those rules either which can assist his contention regarding the power of the Taxing Master to tax an Attorney's bill as between him- .self and his client.\n\nWhile we are on this aspect of the matter it would be useiful to refer to the.supreme Court Rules, 1966 and the Boll!.bay High Court Appellate Side Rules, 1960.\n\nThe Supreme Court Rules contain elaborate provisions in Order XLI and XLII thereof regarding costs of proceedings and taxation of costs.\n\nRule 13 of Order XLII provides that except as otherwise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Schedules to the Rules may be allowed to Advocates and officers of\n\nthe Court respectively.\n\nRules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation.\n\nThe Second Schedule contains detailed provisions under which fees are payable to Advocates for various types of professional services rendered by them. Similarly,\n\nChapter 14 of the: Appellate Side Rules of the Bombay High Court contains various rules for computing the fees which an Advocate is entitled to charge his own client.\n\nSimilar provision is to be found in England in the Supreme Court Costs Rulec~. 1959 (see The Annual Practice 1965, p. 1998/300). Mr. Nariman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitov:s bill can be taxed as between himself and his client.\n\nThese provisions are on a par with the rules of taxation of the Original Side of the Bombay High Court.\n\nThe important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provision under which an Attorney can have. his bill taxed as between himself and his client.\n\nPerhaps there is good reason for this because though under s. 224(1) (d) of the Government of India Act, 1935 '1!1d art. 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed t~ Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxationi on the Original Side of the High Court adequately and effectively take care of that matter.\n\nThe High Court did exercise its powers under s. 224(1)(d) in relation to the City Civil Court bot did not in the rules framed in the exercise of that power provide for taxation of an Attorney's bill of costs as between him and his client. It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfactorily.\n\nMr. Parekh sought to derive some sustenance to his argument from a decision ofi the Calcutta High Court in Messrs Sande~ sons & Morgans v. Mohan/al Lalluchand Shah('1) but we find that the question which arose for decision therein was entirely different.\n\nThe appellants therein, a firm of Solicitors, submitted to. the rj!Spondents a bill of costs for the work done by them for the respondents on the\n\n(I) A.I.R. 1955 cal. 319.\n\nM. NATWARLAL v. R. NAGINDAS & co. (Cha11drachud, J.) 363\n\nOriginal Side of the Calcutta High Court.\n\nThe respondents challen- A ged the bill by a Chamber Summons, which the appellants resisted on the ground that there was a private agreement between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules.\n\nOn a corisioeration of the Original Side Rules of the Calcutta High Court, Particularly mies 4 and 74 of Chapter 36, the High Court came to the conclusion that the solicitors were bound to have their bills taxed according to B the Original Side scale, agreement or no agreement.\n\nWe are concerned in the instant case with a different question under a different set of mies and as pointed out by the High, Court, the Calcutta Rules are in material respect different from the Bombay Rules.\n\nWe must interpret the Bombay Rules on their own terms and decisions 01\\ other statutes cannot afford material assistance unless, of course, any principle of general application is laid down.\n\nWe have already mentioned that in Messrs Pereira Fazalblwy & Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him -0utside the Higi. Court.\n\nFor the various reasons mentioned above we endorse that view.\n\nBefore concluding, we ought to refer to' a rather 1anxious plea made by Mr. Parekh which involves ethical considerations.\n\nCounsel urged that it is unfair that for small work done in the City Civil Court Solicitors. should be permitted to charge high fees prescribed m1der the Original Side Rules.\n\nWe find ourselves unable to share this concern.\n\nIf anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services.\n\nThe object of bindll)g the Attorneys to the scale of fees prescribed in the\n\nOrigin~ Side Rules is not to confer on them any special benefit which is denied, to other legal practitioners.\n\nThe object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original\n\nSide or in any Court subordinate to the High Court.\n\nThe only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client.\n\nIn fact, wt! are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court.\n\nSuch a power may enable the Presiding Judges. to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill o~ Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/- only. If there were no machinery for taxing the bill, the appella'nts might perhaps have got off with the demand.\n\nWe would only like to add that before allowing the costs claimed by an Attorney\n\nfrom his client, the Taxing Master must have regard to th~ fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court.\n\nA judicious exercise of\n\ndisccretion postulates elimination of uufair play, particularly where one party to a transaction is in a position to dominate the will of the other. !he client must receive the protection of the\\ Court and its officers, whenever necessary.\n\nFor these reasons we confirm the judgment ad! the High Court and dismiss the appeal. There will however be no o_rder as to costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 116, "entities": [{"text": "MOT! NATWARLAL & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "MOTI NATWARLAL & ORS", "offset_not_found": false}}, {"text": "RAGHA VAYYA NAGINDAS & CO", "label": "RESPONDENT", "start_char": 23, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "RAGHAVAYYA NAGINDAS & CO", "offset_not_found": false}}, {"text": "March 21, 1977", "label": "DATE", "start_char": 51, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "March 21, 1977\n\n[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.J\n\nBombay High Court original side Rule.\""}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 68, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "Bombay High Court original side Rule", "label": "STATUTE", "start_char": 112, "end_char": 148, "source": "regex", "metadata": {}}, {"text": "Fees Act 1926", "label": "STATUTE", "start_char": 378, "end_char": 391, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 392, "end_char": 401, "source": "regex", "metadata": {"linked_statute_text": "Fees Act 1926", "statute": "Fees Act 1926"}}, {"text": "India Act 1935", "label": "STATUTE", "start_char": 435, "end_char": 449, "source": "regex", "metadata": {}}, {"text": "Rules framed thereunder-Bombay City Civil Courts Act 1948", "label": "STATUTE", "start_char": 450, "end_char": 507, "source": "regex", "metadata": {}}, {"text": "City Civil Court Rules 1948", "label": "STATUTE", "start_char": 538, "end_char": 565, "source": "regex", "metadata": {}}, {"text": "Vakalat", "label": "OTHER_PERSON", "start_char": 753, "end_char": 760, "source": "ner", "metadata": {"in_sentence": "The appel1ant engaged the respondent firm of Solicitors who by Vakalat executed in their favour by the appella..nts agreed to act, appear and plead for them in the City Civil c'ourt."}}, {"text": "Fees Act, 1926", "label": "STATUTE", "start_char": 2219, "end_char": 2233, "source": "regex", "metadata": {}}, {"text": "Bombay City Civil Courts Act, 1948", "label": "STATUTE", "start_char": 2235, "end_char": 2269, "source": "regex", "metadata": {}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 2352, "end_char": 2369, "source": "ner", "metadata": {"in_sentence": "The bill in any event cannot be taxed according to the scale of fees applicable on the original side as bet\\veen an attorney and client, particularly in view of the provisions contained in the Legal Practitioners' Fees Act, 1926, Bombay City Civil Courts Act, 1948 and the Bombay City Civil Court Rules, F 1948 as well and the rules framed bv the Bombay High Court under section 224(1) (d) under the Government of India Act, 1935."}}, {"text": "section 224(1)", "label": "PROVISION", "start_char": 2376, "end_char": 2390, "source": "regex", "metadata": {"linked_statute_text": "Bombay City Civil Courts Act, 1948", "statute": "Bombay City Civil Courts Act, 1948"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 2405, "end_char": 2434, "source": "regex", "metadata": {}}, {"text": "Practitioners Fees Act 1926", "label": "STATUTE", "start_char": 4327, "end_char": 4354, "source": "regex", "metadata": {}}, {"text": "Indian Bar Commjttee", "label": "ORG", "start_char": 4625, "end_char": 4645, "source": "ner", "metadata": {"in_sentence": "The Indian Bar Commjttee recomended by para 42 of its report that the distinction relating to suing for negligence and being sued for fees was not of great importance since suits by or against Legal Practitioners in respect of fees and the conduct of cases were extremely_ rare."}}, {"text": "Act is the same as in the Legal Practitioners Act, 1879", "label": "STATUTE", "start_char": 5141, "end_char": 5196, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 5227, "end_char": 5236, "source": "regex", "metadata": {"linked_statute_text": "Act is the same as in the Legal Practitioners Act, 1879", "statute": "Act is the same as in the Legal Practitioners Act, 1879"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 5462, "end_char": 5471, "source": "regex", "metadata": {"linked_statute_text": "Act is the same as in the Legal Practitioners Act, 1879", "statute": "Act is the same as in the Legal Practitioners Act, 1879"}}, {"text": "section 4", "label": "PROVISION", "start_char": 5937, "end_char": 5946, "source": "regex", "metadata": {"linked_statute_text": "Act is the same as in the Legal Practitioners Act, 1879", "statute": "Act is the same as in the Legal Practitioners Act, 1879"}}, {"text": "section 4", "label": "PROVISION", "start_char": 6297, "end_char": 6306, "source": "regex", "metadata": {"statute": null}}, {"text": "section 224(1 )(d)", "label": "PROVISION", "start_char": 6666, "end_char": 6684, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7018, "end_char": 7027, "source": "regex", "metadata": {"statute": null}}, {"text": "section 224", "label": "PROVISION", "start_char": 7089, "end_char": 7100, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18(2)", "label": "PROVISION", "start_char": 7506, "end_char": 7519, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Courts Act", "label": "STATUTE", "start_char": 7539, "end_char": 7555, "source": "regex", "metadata": {}}, {"text": "section 18(2)", "label": "PROVISION", "start_char": 7902, "end_char": 7915, "source": "regex", "metadata": {"linked_statute_text": "Civil Courts Act", "statute": "Civil Courts Act"}}, {"text": "Supreme Court Rule", "label": "STATUTE", "start_char": 9177, "end_char": 9195, "source": "regex", "metadata": {}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 9632, "end_char": 9644, "source": "ner", "metadata": {"in_sentence": "73 of 197 4)\n\nP. H. Parekh and Miss Manju Jelley, for the Appellant S. K. Dholakia and R. C. Bhatia, for the respondent."}}, {"text": "Manju Jelley", "label": "LAWYER", "start_char": 9654, "end_char": 9666, "source": "ner", "metadata": {"in_sentence": "73 of 197 4)\n\nP. H. Parekh and Miss Manju Jelley, for the Appellant S. K. Dholakia and R. C. Bhatia, for the respondent."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 9686, "end_char": 9700, "source": "ner", "metadata": {"in_sentence": "73 of 197 4)\n\nP. H. Parekh and Miss Manju Jelley, for the Appellant S. K. Dholakia and R. C. Bhatia, for the respondent."}}, {"text": "R. C. Bhatia", "label": "LAWYER", "start_char": 9705, "end_char": 9717, "source": "ner", "metadata": {"in_sentence": "73 of 197 4)\n\nP. H. Parekh and Miss Manju Jelley, for the Appellant S. K. Dholakia and R. C. Bhatia, for the respondent."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 9740, "end_char": 9753, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman and B. R. Aggarwal, for the intervener."}}, {"text": "B. R. Aggarwal", "label": "LAWYER", "start_char": 9758, "end_char": 9772, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman and B. R. Aggarwal, for the intervener."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 9839, "end_char": 9850, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J. A question of practical importance concerning the dying profes'sion of Solicitors arises in this appeal by special leave."}}, {"text": "Bombay", "label": "GPE", "start_char": 10313, "end_char": 10319, "source": "ner", "metadata": {"in_sentence": "The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and therefore the question is not of growing importance."}}, {"text": "January 1, 1977", "label": "DATE", "start_char": 10401, "end_char": 10416, "source": "ner", "metadata": {"in_sentence": "The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and therefore the question is not of growing importance."}}, {"text": "City Civil Court, Bombay", "label": "COURT", "start_char": 10753, "end_char": 10777, "source": "ner", "metadata": {"in_sentence": "Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary."}}, {"text": "Bellary", "label": "GPE", "start_char": 10825, "end_char": 10832, "source": "ner", "metadata": {"in_sentence": "Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary."}}, {"text": "February 8, 1972", "label": "DATE", "start_char": 11404, "end_char": 11420, "source": "ner", "metadata": {"in_sentence": "Since the bills remained unpaid, the respondents obtained on February 8, 1972 an order from the Prothonotary of the High Court directing the Taxing Master to tax the bills\n\nG •\n\nThe appellants appealed against the order of the Prothonotary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether\n\nrnspondents were entitled to be remunerated on the Original Side scale of fees, as between au Attorney and client."}}, {"text": "art. 113", "label": "PROVISION", "start_char": 12832, "end_char": 12840, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1963", "label": "STATUTE", "start_char": 12848, "end_char": 12868, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 8, 1974", "label": "DATE", "start_char": 12941, "end_char": 12956, "source": "ner", "metadata": {"in_sentence": "The High Cowt rejected all these contention~ by its judgment d, jlted October 8, 1974."}}, {"text": "Parekh", "label": "OTHER_PERSON", "start_char": 12963, "end_char": 12969, "source": "ner", "metadata": {"in_sentence": "Mr. Parekh, appearing for the appellants before us, did not .press the third point regarding limitation and rightly so."}}, {"text": "Article 113", "label": "PROVISION", "start_char": 13079, "end_char": 13090, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1963", "statute": "the Limitation Act, 1963"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13098, "end_char": 13112, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "City Civil Court", "label": "COURT", "start_char": 13831, "end_char": 13847, "source": "ner", "metadata": {"in_sentence": "We wiU first take up for consideration the primary question whether the Taxing Master has jurisdiction at <tll to tax an Attorney's bill of costs for professional services rendered by him to his client in connection with a litigation in a court other than the Bombay High Court, in this case the City Civil Court."}}, {"text": "High Court of Bombay (Original Side), 1957", "label": "COURT", "start_char": 13880, "end_char": 13922, "source": "ner", "metadata": {"in_sentence": "Rule 569 of \"The Rules o[ the High Court of Bombay (Original Side), 1957\" affords, in our opinion, a complete answer to the appellants' contention that the Taxing Master who is an officer of the Original Side of the Hh Court has no jurisdiction to tax the Attorneys' bills in regard to work done by them in matters other than those on the Original Side."}}, {"text": "Chapter XXIX of the Original Side Rules", "label": "STATUTE", "start_char": 14223, "end_char": 14262, "source": "regex", "metadata": {}}, {"text": "Subordinate Courts of Poona", "label": "COURT", "start_char": 18397, "end_char": 18424, "source": "ner", "metadata": {"in_sentence": "In Nowroji Pudumji Sirdar v. Kange & Savani(1) the appellants were represented by the respondent firm of Solicitors in litigation in the District Court and the Subordinate Courts of Poona."}}, {"text": "Norman Macleod", "label": "JUDGE", "start_char": 19149, "end_char": 19163, "source": "ner", "metadata": {"in_sentence": "These contentions were rejected by a Division Bench consisting of Sir Norman Macleod, C. J., and H. C. Coyajee, J., who could \"see no reason\" why a Solicitor practising in Bombay and performing professional services for a client regarding business in the mofussil 'should not be entitled to get his bills taxed by tqe Taxing Master on the Original Side of the High Court."}}, {"text": "H. C. Coyajee", "label": "JUDGE", "start_char": 19176, "end_char": 19189, "source": "ner", "metadata": {"in_sentence": "These contentions were rejected by a Division Bench consisting of Sir Norman Macleod, C. J., and H. C. Coyajee, J., who could \"see no reason\" why a Solicitor practising in Bombay and performing professional services for a client regarding business in the mofussil 'should not be entitled to get his bills taxed by tqe Taxing Master on the Original Side of the High Court."}}, {"text": "Original Side Rules, 1922", "label": "STATUTE", "start_char": 19523, "end_char": 19548, "source": "regex", "metadata": {}}, {"text": "Nowroji", "label": "JUDGE", "start_char": 19634, "end_char": 19641, "source": "ner", "metadata": {"in_sentence": "The High Court observed i11 Nowroji's case that it may be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 of 1920, with regard to any work done i11 mofu'ssil Courts aft1r the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents.", "canonical_name": "in Nowroji"}}, {"text": "Attorney would fall within the provisions of the Bombay Pleaders Act", "label": "STATUTE", "start_char": 19669, "end_char": 19737, "source": "regex", "metadata": {}}, {"text": "District Court at Satara", "label": "COURT", "start_char": 21140, "end_char": 21164, "source": "ner", "metadata": {"in_sentence": "In Chitnis & Kanga v. Wamanrao S. Mantri( 2 ) the appellants, a firm of Solicitors, had obtained from the Prothonotary of the High Court an order under rule 534 of the Rules of 1936; directiM the Taxing Master to tax their bill of costs relating to (1) a suit filed on the Original Side of the High Court, (2) a petition for probate in the District Court at Satara, (3) an appeal in the Hir."}}, {"text": "John Beaumont", "label": "JUDGE", "start_char": 22376, "end_char": 22389, "source": "ner", "metadata": {"in_sentence": "The Chamber Judge set aside the ex-parte order of the Prothonotary without a speaking order, against which the c appellants filed an appeal which was heard by Sir John Beaumont, C. J., and Kania, J. The Division Bench held that the order of the\n\nProthonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rnle 534 of the Rules of 1936."}}, {"text": "Kania", "label": "JUDGE", "start_char": 22402, "end_char": 22407, "source": "ner", "metadata": {"in_sentence": "The Chamber Judge set aside the ex-parte order of the Prothonotary without a speaking order, against which the c appellants filed an appeal which was heard by Sir John Beaumont, C. J., and Kania, J. The Division Bench held that the order of the\n\nProthonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rnle 534 of the Rules of 1936."}}, {"text": "Satara District Court", "label": "COURT", "start_char": 22775, "end_char": 22796, "source": "ner", "metadata": {"in_sentence": "As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara District Court D and the miscellaneous work done 1n the mofussil, the Court following the decision in Nowroj(s case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master."}}, {"text": "Nowroj(s", "label": "JUDGE", "start_char": 22884, "end_char": 22892, "source": "ner", "metadata": {"in_sentence": "As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara District Court D and the miscellaneous work done 1n the mofussil, the Court following the decision in Nowroj(s case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master.", "canonical_name": "in Nowroji"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 23347, "end_char": 23352, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 23531, "end_char": 23536, "source": "regex", "metadata": {"statute": null}}, {"text": "in Nowroji", "label": "JUDGE", "start_char": 23855, "end_char": 23865, "source": "ner", "metadata": {"in_sentence": "in Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master's power to tax the Attorneys' bilfs.", "canonical_name": "in Nowroji"}}, {"text": "Mody", "label": "JUDGE", "start_char": 23958, "end_char": 23962, "source": "ner", "metadata": {"in_sentence": "in Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master's power to tax the Attorneys' bilfs."}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 24209, "end_char": 24232, "source": "ner", "metadata": {"in_sentence": "Tn that .case the appellants had rendered professional services to the G respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan."}}, {"text": "Indian Bar Committee", "label": "ORG", "start_char": 27032, "end_char": 27052, "source": "ner", "metadata": {"in_sentence": "The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fee~. Prior to the Passing of the Act of 1926, various High Courts in India had held aim~!"}}, {"text": "Prior to the Passing of the Act", "label": "STATUTE", "start_char": 27211, "end_char": 27242, "source": "regex", "metadata": {}}, {"text": "Section 2(a)", "label": "PROVISION", "start_char": 28367, "end_char": 28379, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 28465, "end_char": 28469, "source": "regex", "metadata": {"statute": null}}, {"text": "Legal Practitioners Act, 1879", "label": "STATUTE", "start_char": 28478, "end_char": 28507, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 28646, "end_char": 28655, "source": "regex", "metadata": {"linked_statute_text": "the Legal Practitioners Act, 1879", "statute": "the Legal Practitioners Act, 1879"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 29165, "end_char": 29174, "source": "regex", "metadata": {"linked_statute_text": "the Legal Practitioners Act, 1879", "statute": "the Legal Practitioners Act, 1879"}}, {"text": "section 4", "label": "PROVISION", "start_char": 29878, "end_char": 29887, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 30196, "end_char": 30200, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 30426, "end_char": 30430, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 30866, "end_char": 30875, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 31723, "end_char": 31727, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 32206, "end_char": 32226, "source": "ner", "metadata": {"in_sentence": "They have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 32357, "end_char": 32361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 32601, "end_char": 32605, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 224(1)", "label": "PROVISION", "start_char": 33125, "end_char": 33134, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 33146, "end_char": 33175, "source": "regex", "metadata": {}}, {"text": "art. 227(3)", "label": "PROVISION", "start_char": 33205, "end_char": 33216, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Bombay City Civil Court", "label": "COURT", "start_char": 33696, "end_char": 33719, "source": "ner", "metadata": {"in_sentence": "The rules on which counsel relies were framed by the High Court \"for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversary's Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court.\""}}, {"text": "s. 224(1)", "label": "PROVISION", "start_char": 34287, "end_char": 34296, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act", "label": "STATUTE", "start_char": 34309, "end_char": 34332, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 34849, "end_char": 34858, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 35035, "end_char": 35039, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "s. 224(1)", "label": "PROVISION", "start_char": 35313, "end_char": 35322, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Government of India Act, 1933", "label": "STATUTE", "start_char": 35334, "end_char": 35363, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 35659, "end_char": 35664, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1933", "statute": "the Government of India Act, 1933"}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 36172, "end_char": 36192, "source": "ner", "metadata": {"in_sentence": "Mr. Parekh drew our attention to rule 8 framed by the Government of Bombay under s. 18 (2) but we do not see its relevance on the issue under consideration in the instant case."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 36199, "end_char": 36204, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1933", "statute": "the Government of India Act, 1933"}}, {"text": "s. 18(2)", "label": "PROVISION", "start_char": 36899, "end_char": 36907, "source": "regex", "metadata": {"statute": null}}, {"text": "Citv Civil Court", "label": "COURT", "start_char": 37136, "end_char": 37152, "source": "ner", "metadata": {"in_sentence": "Rule 2, being a rule framed under s. 18(2) of the Act of 1948, governs transl'erred suits only and it expressly authorises the Registrar to tax the Attorney's bill for the work done in such suits both before arid af!er the transfer of the suit from the High Court to the Citv Civil Court."}}, {"text": "s. 18(2)", "label": "PROVISION", "start_char": 37377, "end_char": 37385, "source": "regex", "metadata": {"linked_statute_text": "There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948", "statute": "There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948"}}, {"text": "s. 224", "label": "PROVISION", "start_char": 37556, "end_char": 37562, "source": "regex", "metadata": {"linked_statute_text": "There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948", "statute": "There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 37570, "end_char": 37599, "source": "regex", "metadata": {}}, {"text": "Court Rules, 1966", "label": "STATUTE", "start_char": 37868, "end_char": 37885, "source": "regex", "metadata": {}}, {"text": "High Court Appellate Side Rules, 1960", "label": "STATUTE", "start_char": 37904, "end_char": 37941, "source": "regex", "metadata": {}}, {"text": "Supreme Court Rules", "label": "COURT", "start_char": 37948, "end_char": 37967, "source": "ner", "metadata": {"in_sentence": "The Supreme Court Rules contain elaborate provisions in Order XLI and XLII thereof regarding costs of proceedings and taxation of costs."}}, {"text": "Fourth Schedule", "label": "PROVISION", "start_char": 38238, "end_char": 38253, "source": "regex", "metadata": {"linked_statute_text": "High Court Appellate Side Rules, 1960", "statute": "High Court Appellate Side Rules, 1960"}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 38425, "end_char": 38440, "source": "regex", "metadata": {"linked_statute_text": "High Court Appellate Side Rules, 1960", "statute": "High Court Appellate Side Rules, 1960"}}, {"text": "Appellate Side Rules", "label": "STATUTE", "start_char": 38604, "end_char": 38624, "source": "regex", "metadata": {}}, {"text": "Similar provision is to be found in England in the Supreme Court Costs Rule", "label": "STATUTE", "start_char": 38753, "end_char": 38828, "source": "regex", "metadata": {}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 38886, "end_char": 38893, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitov:s bill can be taxed as between himself and his client."}}, {"text": "s. 224(1)", "label": "PROVISION", "start_char": 39507, "end_char": 39516, "source": "regex", "metadata": {"linked_statute_text": "Similar provision is to be found in England in the Supreme Court Costs Rule", "statute": "Similar provision is to be found in England in the Supreme Court Costs Rule"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 39528, "end_char": 39557, "source": "regex", "metadata": {}}, {"text": "art. 227(3)", "label": "PROVISION", "start_char": 39564, "end_char": 39575, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 224(1)(d)", "label": "PROVISION", "start_char": 39960, "end_char": 39972, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 40480, "end_char": 40499, "source": "ner", "metadata": {"in_sentence": "Mr. Parekh sought to derive some sustenance to his argument from a decision ofi the Calcutta High Court in Messrs Sande~ sons & Morgans v. Mohan/al Lalluchand Shah('1) but we find that the question which arose for decision therein was entirely different."}}, {"text": "On a corisioeration of the Original Side Rules", "label": "STATUTE", "start_char": 41212, "end_char": 41258, "source": "regex", "metadata": {}}, {"text": "must interpret the Bombay Rules", "label": "STATUTE", "start_char": 41704, "end_char": 41735, "source": "regex", "metadata": {}}, {"text": "Advocate and his client which is to be found in the Supreme Court Rules", "label": "STATUTE", "start_char": 43385, "end_char": 43456, "source": "regex", "metadata": {}}]}
{"document_id": "1977_3_35_37_EN", "year": 1977, "text": "' •\n\nEMPLOYEES STATE INSURANCE CORPORATION,\n\nBHOPAL\n\nI'.\n\nCENTRAL PRESS & ANR.\n\nFebrnary 21, 1977\n\n[M. H. BEG, C. J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nE1nployees State Insurance Act (Act 34 of 1948), 1948-Sections 45A, 75(I)(c), and 75(2) mid 99A.,-Scope of.\n\nSection 75(1)(c) of the Employees State Insurance Act 1948 makes it obligatory on the Insurance Court to decide \"the rate of contribution payable by a principal employer in respect of any employees'', if such question or dispute C arises.\n\nSection 75(2) also provides that \"the claim for the recovery of contributions from the principal employer'\" shall be deckh:d by it.\n\n1'he appellant .Corporation filed five applicatLJns under s. 7 5 of the En1ployces State Insurance Ac( before the Insurance Court, Bhopal (Civil Judge First Class) for recovery from the respondent of employees' contributions pay able under s. 39 of the Act for different periods from 27·9·1959 on wards, ¥.'orking out the contribution payable on an \"ad hoc basis\" by taking the wages at Rs. 100/· per erpployce per month as D indicated by the Central Government by their notification\n\nSRO 224 dated 1'5·1·1957 issued in exercise of their pon>ers under s. 99A of the Act.\n\nThe Insurance Court disallowed the claims on the ground that the claims have been made on an \"ad hoc basis\". The first appeals against that order V.'ere allowed by a single Judge of the Madhya Pradesh High Court (Jabalpur Bench) relying on s. 99A of the Act an<l on a further notification dated 16·1·1968\n\nissued by the Central Government under s. 99A.\n\nThe Letters Patent Appeals filed by the respondent were allo, .. ved by the Division Bench which held : ( 1) 'fhe power of the Central Government of issuing directions is not absolute and E the directions cannot be inconsistent with the Act (22). When under section 45A of the Act a special procedure is prescribed regarding the method of cal culation of the employees' contribution, no notification or order can be issued by the Central Government prescribing any other method on ad hoc basis which obviously becomes inconsistent with the other provisions of the Act, namely, section 45A.\n\nRemanding the matter to the Insurance Court, the Court,\n\nHELD:\n\n( 1) The nature of the proceedings under the Employees State Insurance Act 1948 was not properly understood either by the Employees Insurance Court or by the H'igh Court when the matter was taken before these authorities. [37D]\n\n(2) The scheme of the Act is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with s. 44 of the Act, determine the amount of contribution on the strength of such information as it may collect, make a demand and upon refusal come up before the Insurance Court under s. 75 of the Act. The Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Corporation. It cannot decline to per\n\nform its own duty because the Corporation has failed to discharge its function.\n\nThe Insurance _Court is under a duty to determine the basis of calculation itself.\n\n[36F-H]\n\n(3) The notification of the Central Govern1nent under s. 99A of the Act ff was intended to overcome difficulties in determining the wages of the employees.\n\nThis provision cannot be availed of for the purpose of supplying a defect or over\n\ncoming a difficulty in adjudication of a dispute for which the Emplovees Insu ranee Court is given ample powers under s. 75(1)(c) and 75(2). [37A-B]\n\nSUPREME COURT REPORTS\n\n[1977] 3 SC.R.\n\nCIVIL APPELLATE JURISDICTION Civil Appeals Nos. 325-329\n\nof 1977.\n\n(Appeals by special leave from the Judgment and Order dated l.12.1971 of the Madhya Pradesh High Court in LP.A. Nos. 13-17 of 1969).\n\nL. N. Sinha, Sol. Genl. and Girish Chandra for the appellant.\n\nJ. P. Go}al and Shreepal Singh, for the respondent.\n\nThe Juugment of the Court was delivered by\n\nBEG, C.J.-This appeal by special leave arises out of the proceedings initiated on 12.7.1961 by the appellant Corporation, under section 75 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act), claiming contributions from the respondents for various periods between, 27.9.1959 and 31.3.1965, which they are liable to pay under section 40 of the Act.\n\nIt appears that the respondents-employers failed to maintain the registers or records and to submit re_turns of wages paid as required under sectivn 44 of the Act.\n\nHence, the Insurance Court, which was called upon to adjudicate under Section 75 (I) ( c) of the Act, on the matter in dispute, found itself unable to decide the question in issue.\n\nIt dismissed the application on the ground that there was no provision for deciding such a dispute on an \"ad hoc basis.\"' We fail to ur.derstand what is precisely meant by \"ad hoc basis.\" We find that Section 75 (2) of the Act provides, inter alia, that a claim for the recovery of contributions shall be decided by the Employees' Insurance Court. i\\ot only as the mandatory dutycast upon it to decide such disputes, but it is armed with the powers of a Civil Court, including sununc, ning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, under section 78 of the Act.\n\nThe powers of the Corporation are given in Section 45A of the Act, infroduced by Act 44 of 1966, whereby the Corporation may, on the baoIS of the information available to it, determine the amount of contributions payable and make necessary demands. Apparently, the scheme of the Act, after the amendment, is that the Corporation itself should, in a case where there is omission on the part of the employer to maintain records in accordance with Section 44 of the Act,· determine the amount of contributions on the strength of such information as it may collect.\n\nIt can then make the demand.\n\nIf the employer refuses to comply with the demand so made, the matter can come up before the Employees' Jnsurance Court under ~, ection 75 of the Act.\n\nThe Court should give the Corporation a direction to perform its duty where it considers that this should be performed by the Curporation.\n\nIt cannot decline to perform its own duty because the Corporation has failed to discharge its function.\n\nThe. matter having come up before that Court, the claim by the Corporation was rejected erroneously merely on the ground that there\n\n, -----~\n\n___ .,.,\n\nE.S.I. CORP. V. CENTRAL PRESS (Beg, C.J.) 37\n\nwas difficulty in detennining .the basis of wages in a particular factory A so as tc c,,;, ble a calculation of the amount of contributions to be made by the employer.\n\nIt seems that the notification of the Central Government under section 99A of the Act, also introduced by Act 44 of 1966, was intended to overcome such a difficulty in determining the v:ages of the ePooloyces.\n\nAfter having considered the provisions oi section 99A of tho Act, we doubt whether this provision can be availed of for the 1mrpose of supplying a defect or overcoming a difficulty in B adjudication of a dispute for which the Employees' Insurance Court is given ample powers.\n\nMoreover, the Corporation has itself to collect the ; nformation initially and make a provisional demand on the basis of that information under section 45A in such a case.\n\nThe learned single Judge, before whom the matter went up in appeal, thought that the notification of the Central Government fixing c wages, presumably on the strength of some notion as to what prevailing wag>s i;; such cases arc, could be used for this purpose.\n\nThe Corporation. itself should have gathered information under section\n\n45A.\n\nT:1e Employees' Insurance Court should be apprised of this information and is under a duty to detennine the basis of calculation itself.\n\nIt cannot expect the Central Government to overcome such a diJ:icully by an order or direction under section 99A of the Act. We D think that the nature of the proceedings was not properly understood either by the Employees' Insurance Court or by the High Court when the matter was taken before these authorities.\n\nHence, the Division Bench, w;, ich accepted the appeal from the decision of the sii:igle Judge haJ, W'h1le invalidating the notification under section 99A of the Act, failed tL give a direction that the Employees' Insurance Court should itself perform its duties.\n\nIn the light of the foregoing statement of the legal position, we allow this appeal, set \"side the judgments of the Division Bench as well as of the learned single Judge and orders of the Employees Insurance Court. We remand the matter to the Employees' Insurance Court for determination in accordance with law as explained by us above.\n\nParties will bear their own costs.\n\nS.R.\n\nAppeal allowed and case remanded.", "total_entities": 46, "entities": [{"text": "EMPLOYEES STATE INSURANCE CORPORATION,\n\nBHOPAL", "label": "PETITIONER", "start_char": 5, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "EMPLOYEES STATE INSURANCE CORPORATION, BHOPAL", "offset_not_found": false}}, {"text": "CENTRAL PRESS & ANR", "label": "RESPONDENT", "start_char": 58, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "CENTRAL PRESS & ANR", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 100, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 118, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 134, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "P.S. 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notification\n\nSRO 224 dated 1'5·1·1957 issued in exercise of their pon>ers under s. 99A of the Act."}}, {"text": "s. 99A", "label": "PROVISION", "start_char": 1190, "end_char": 1196, "source": "regex", "metadata": {"linked_statute_text": "the Employees State Insurance Act 1948", "statute": "the Employees State Insurance Act 1948"}}, {"text": "Madhya Pradesh High Court (Jabalpur Bench", "label": "COURT", "start_char": 1396, "end_char": 1437, "source": "ner", "metadata": {"in_sentence": "The first appeals against that order V.'ere allowed by a single Judge of the Madhya Pradesh High Court (Jabalpur Bench) relying on s. 99A of the Act an<l on a further notification dated 16·1·1968\n\nissued by the Central Government under s. 99A.\n\nThe Letters Patent Appeals filed by the respondent were allo, .. ved by the Division Bench which held : ( 1) 'fhe power of the Central Government of issuing directions is not absolute and E the directions cannot be inconsistent with the Act (22)."}}, {"text": "s. 99A", "label": "PROVISION", "start_char": 1450, "end_char": 1456, "source": "regex", "metadata": {"statute": null}}, {"text": "16·1·1968", "label": "DATE", "start_char": 1505, "end_char": 1514, "source": "ner", "metadata": {"in_sentence": "The first appeals against that order V.'ere allowed by a single Judge of the Madhya Pradesh High Court (Jabalpur Bench) relying on s. 99A of the Act an<l on a further notification dated 16·1·1968\n\nissued by the Central Government under s. 99A.\n\nThe Letters Patent Appeals filed by the respondent were allo, .. ved by the Division Bench which held : ( 1) 'fhe power of the Central Government of issuing directions is not absolute and E the directions cannot be inconsistent with the Act (22)."}}, {"text": "s. 99A", "label": "PROVISION", "start_char": 1555, "end_char": 1561, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45A", "label": "PROVISION", "start_char": 1822, "end_char": 1833, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45A", "label": "PROVISION", "start_char": 2141, "end_char": 2152, "source": "regex", "metadata": {"statute": null}}, {"text": "nature of the proceedings under the Employees State Insurance Act 1948", "label": "STATUTE", "start_char": 2228, "end_char": 2298, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 44", "label": "PROVISION", "start_char": 2614, "end_char": 2619, "source": "regex", "metadata": {"linked_statute_text": "The nature of the proceedings under the Employees State Insurance Act 1948", "statute": "The nature of the proceedings under the Employees State Insurance Act 1948"}}, {"text": "s. 75", "label": "PROVISION", "start_char": 2796, "end_char": 2801, "source": "regex", "metadata": {"linked_statute_text": "The nature of the proceedings under the Employees State Insurance Act 1948", "statute": "The nature of the proceedings under the Employees State Insurance Act 1948"}}, {"text": "s. 99A", "label": "PROVISION", "start_char": 3207, "end_char": 3213, "source": "regex", "metadata": {"linked_statute_text": "The nature of the proceedings under the Employees State Insurance Act 1948", "statute": "The nature of the proceedings under the Employees State Insurance Act 1948"}}, {"text": "s. 75(1)(c) and 75(2)", "label": "PROVISION", "start_char": 3511, "end_char": 3532, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3582, "end_char": 3610, "source": "ner", "metadata": {"in_sentence": "37A-B]\n\nSUPREME COURT REPORTS\n\n[1977] 3 SC.R.\n\nCIVIL APPELLATE JURISDICTION Civil Appeals Nos."}}, {"text": "L. N. Sinha", "label": "OTHER_PERSON", "start_char": 3783, "end_char": 3794, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "Girish Chandra", "label": "OTHER_PERSON", "start_char": 3811, "end_char": 3825, "source": "ner", "metadata": {"in_sentence": "and Girish Chandra for the appellant."}}, {"text": "J. P. Go}al", "label": "OTHER_PERSON", "start_char": 3846, "end_char": 3857, "source": "ner", "metadata": {"in_sentence": "J. P. Go}al and Shreepal Singh, for the respondent."}}, {"text": "Shreepal Singh", "label": "OTHER_PERSON", "start_char": 3862, "end_char": 3876, "source": "ner", "metadata": {"in_sentence": "J. P. Go}al and Shreepal Singh, for the respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 3943, "end_char": 3946, "source": "ner", "metadata": {"in_sentence": "The Juugment of the Court was delivered by\n\nBEG, C.J.-This appeal by special leave arises out of the proceedings initiated on 12.7.1961 by the appellant Corporation, under section 75 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act), claiming contributions from the respondents for various periods between, 27.9.1959 and 31.3.1965, which they are liable to pay under section 40 of the Act."}}, {"text": "section 75", "label": "PROVISION", "start_char": 4071, "end_char": 4081, "source": "regex", "metadata": {"statute": null}}, {"text": "State Insurance Act, 1948", "label": "STATUTE", "start_char": 4100, "end_char": 4125, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 40", "label": "PROVISION", "start_char": 4297, "end_char": 4307, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "Section 75", "label": "PROVISION", "start_char": 4556, "end_char": 4566, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "Section 75", "label": "PROVISION", "start_char": 4869, "end_char": 4879, "source": "regex", "metadata": {"linked_statute_text": "State Insurance Act, 1948", "statute": "State Insurance Act, 1948"}}, {"text": "section 78", "label": "PROVISION", "start_char": 5282, "end_char": 5292, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 45A", "label": "PROVISION", "start_char": 5349, "end_char": 5360, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 5751, "end_char": 5761, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99A", "label": "PROVISION", "start_char": 6727, "end_char": 6738, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99A", "label": "PROVISION", "start_char": 6917, "end_char": 6928, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45A", "label": "PROVISION", "start_char": 7296, "end_char": 7307, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n45A", "label": "PROVISION", "start_char": 7651, "end_char": 7663, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99A", "label": "PROVISION", "start_char": 7905, "end_char": 7916, "source": "regex", "metadata": {"statute": null}}, {"text": "section 99A", "label": "PROVISION", "start_char": 8261, "end_char": 8272, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_365_368_EN", "year": 1977, "text": "TEG SINGH AND OTHERS\n\nCHARAN SINGH AND ANOTHER\n\nMarch 23, 1977\n\n[Y. V. CHANDRACl!UD, P. K. GOSWAMI AND P. N. StrJNGHAL JJ.J\n\n(i) Punjab Customs (Power tq contest) Act, 1920 S. 7 as amended by s. 3 B of the Punjab Custon1s (Power to contest) Anzendm-ent Act (Act 12) 1973- G'onstruction and effect of-(ii) Punjab Lin1itation (Custoni) Act, 1 of 1920, S.\n\n8 scope of.\n\nS. 7 of the Punjab Customs (Power to Contest) Act, 1920 provided that no person shall contest any alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom. S. 3 of the Amendment Act 12 of 1973 amended s. 7 with the result that no challenge could be made to the alienation of any immovable property, whether ancestral or non-ancestral, on the ground that it is contrary to custom.\n\nC A gift\"1.eed was executed by one Mula, in favour of appellant No. 13 Bhag- \\Vati Devi, on De<:ember 3, 1964. Appellants 1 to 12 claiming to 'be potential reversioners obtained a decree on May 31, 1966 in a suit filed against the donor and the donee for a declaration that under the Punjab Customs (Power lo Contest) Act z, of 1920 the gift-deed was not binding on .them and that decree was confirmed in appeal on October 16, !967. On July 10, 1966, Mula\n\nacto,, ted the respondent. On March 11, 1970 appellant No. 13 executed in favour of appellants 1 to 12,, a lease in respect of the property which was the D subject matter of the gift.\n\nMula died on August 23, 1971. On December 13, 1971, respondent filed a suit for possesion of certain propert.ies including the property which Mula had gifted to appellant No. 13. The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court; In appeal by special leave, the appellants contended (i) In decreeing the suit the Courts below had overlooked the, relevant provisions of the Punjab\n\nCustoms (Power to Contest) Amendment Act, 1973 by virtue of which the legality of the gift made by Mula to appellant No. 13 could not be contested E and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under s. 8 of the\n\nPun'jab Limitation (Custom) Act, of 1920.\n\nDismissing the appeal, the Court- HELD : ( 1) That a declaratory decree obtained under the Punjab C'ustoms (Power to Contest) Act by a reversioner to the effect that an alienation would not bind them after the alienor's death, had the effect of restoring the property F alienated to the estate of the aliener and therefore, all persons who are heirs to the dece\\sed were entitled to obtain possession of the alienated property.\n\n[367 E-FJ\n\n(ii) The decree obtained by appellants I to 12 on May 31, 1966 would enure for the benefit of all persons who are. entitled to a share i'n the property of the deceased as it existeQ at the_ moment of his death.\n\nSince Mula's property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entiled to the possession Of the gifted G properly.\n\n[367 H, 368-A] Giani Ram v. Ramii Lal (1969) 3 SCR 944, relied on to; Chand Singh v. lad Kanr (1974) I PLR 226 approved.\n\n(iii) It is true that, if it became necessary after the amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a contest.\n\nBut in the instant case, the basis on which the respondent has asked for the relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree pas<e.d\n\nin suit No. 14311965. He has not and indeed he need not have contested the va1iditv of the gift-deed since the question was decided finally in the aforesaid suit. [367 B-DJ ·\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 686 of 1976.\n\n(Appeal by Special leave from the Judgment and Order dated 13-2-1976 of the Punjab and Haryana High Court in R.S. A No. 249 of 1976).\n\nP. P. Juneja, for the appellants.\n\nS. K. Mehta, K. R. Nagaraja and P. N. Puri, for respondent No. 1\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J. (1) One Mula executed a registered gift deed in favour cif appellant No. 13, Bhagwati Devi, on December 3,\n\n1964. On April 29, 1965, appellants l to 12 claiming to be potential reversioners filed Suit No. 143 of 1965 against the donor and the donee for a declaration that under the Punjab Custom (Power to Contest) Act, 1920, the gift-deed was not binding on them.\n\nThe suit was decreed by the trial court on May 31, 1966 and that decree was confirmed in appeal on October 16, 1967.\n\n(2) In between, on July 10, 1966 Mula adopted the respondent.\n\nOn March 11, 1970, appellant No. 13 executed in favour of appellants 1 to 12 a lease in respect of the property which was the subject matter of the gift. Mula died on August 28, 1971.\n\n(3) On December 13, 1971 respondent filed the present suit against the appellants for possession of certain properties including the property which Mula had gifted to appellant No. 13.\n\nThe suit was decreed by the trial court on January 29, 1971 and the decree was confirmed in appeal by the District Court and the Higb Court.\n\n( 4) On June 3, 197 6 appellants Jilcd a special leave petition in this Court challenging the High Court judgment.\n\nThey raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the courts below had overlooked the relevant provisions of the Punjab Customs (Power to Contest).\n\nAmendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested.\n\nOn June 11., 1976 this Co'lrt granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition.\n\n(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted.\n\nThe contention, sought to be raiSed for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift-deed executed by Mula cannot be challenged by the respondent.\n\nThe assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to challenge the gift-deed executed by Mula in favour of Bhagwati Devi.\n\nThat gift. was challenged by appellants 1\n\n'\"I'\n\n• •\n\nTEG SINGH v. CHARAN SINGH (Chandrachud, J.) 367\n\nto 12 in Suit No. 143 of 1965, and they succeeded in obtaining a declaration in that suit that the gift was not binding on the reversioners.\n\nThat decree became final, with the result that as on August 28, 1971, when Mula died, the property which he had sought to gift away w\n\nBhagwati Devi, was free from the encumbrance of the purported gift..\n\nBy the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift. The basis on which he has asked for that relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965. It seems to us plain that he has not and he need not have contested the validity of the gift-deed since that question was decided finally in the aforesaid suit. ( 6) Section 7 of the Punjab Custom (Power to Contest) Act,\n\n1920 provided initially that no person shall contest any alienation of c non-ancestral immovable property on the ground that such alienation is contrary to custom.\n\nThis section was amended by s. 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non-ancestral, on the ground that it is contrary to custom. It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed D by Mula in favour of Bhagwati Devi, s. 7 of the Act of 1920 would operate as a bar to such a contest.\n\nHowever, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the validity of the gift.\n\n(7) The decision of this Court in Giani Ram v. Ramji Lal(') may, with advantage be referred to on this point.\n\nUnder the customary law of the Punjab, the wife and daughters of a holder ot ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to challenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor's death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the deceased,\n\nwere entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daughters, who also became heirs along with the sons under the Hindu Succession Act, 1956 were held entitled to obtain possession of the ancestral property.\n\nMr. JUneja attempted to get over the effect of thi's decision by invoking the provisions of s. 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.\n\nCounsel argnes that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit. The short answer\n\n(1) [1969] (3) S.C.R. 944.\n\n9-436 SCI/77\n\nto this contention is that the decree would ensure for the benefit of all persons who are enitled to a share in the property of the deceased as it existed at the moment of bis death.\n\nSince Mula's property stood freed from the encumbrance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property.\n\n( 8) Another facet of the same question can be seen in Chand Singh v. Ind Kaur.(') A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of .1973, a declaratory de.cree already obtained by a reversioner would continue to be operative !\\S the Amending Act does not render such a decree a nullity.\n\n(9) There is thus no substance in the contention raised by the appellants and their appeal must fail.\n\nAppellants 1 to 12 shall pay the respondent's costs of the appeal.\n\nS.R.\n\nAppeal dismissed.\n\nPl (1974) I P.L.R. 226.", "total_entities": 43, "entities": [{"text": "TEG SINGH AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "TEG SINGH AND OTHERS", "offset_not_found": false}}, {"text": "CHARAN SINGH AND ANOTHER", "label": "RESPONDENT", "start_char": 22, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "CHARAN SINGH AND ANOTHER", "offset_not_found": false}}, {"text": "March 23, 1977", "label": "DATE", "start_char": 48, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "TEG SINGH AND OTHERS\n\nCHARAN SINGH AND ANOTHER\n\nMarch 23, 1977\n\n[Y. V. CHANDRACl!UD, P. K. GOSWAMI AND P. N. StrJNGHAL JJ.J\n\n(i) Punjab Customs (Power tq contest) Act, 1920 S. 7 as amended by s. 3 B of the Punjab Custon1s (Power to contest) Anzendm-ent Act (Act 12) 1973- G'onstruction and effect of-(ii) Punjab Lin1itation (Custoni) Act, 1 of 1920, S.\n\n8 scope of."}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 85, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "S. 7", "label": "PROVISION", "start_char": 173, "end_char": 177, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 192, "end_char": 196, "source": "regex", "metadata": {"statute": null}}, {"text": "S.\n\n8", "label": "PROVISION", "start_char": 350, "end_char": 355, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 7", "label": "PROVISION", "start_char": 367, "end_char": 371, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 3", "label": "PROVISION", "start_char": 570, "end_char": 574, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 615, "end_char": 619, "source": "regex", "metadata": {"statute": null}}, {"text": "Mula", "label": "PETITIONER", "start_char": 830, "end_char": 834, "source": "ner", "metadata": {"in_sentence": "C A gift\"1.eed was executed by one Mula, in favour of appellant No.", "canonical_name": "Mula"}}, {"text": "May 31, 1966", "label": "DATE", "start_char": 985, "end_char": 997, "source": "ner", "metadata": {"in_sentence": "Appellants 1 to 12 claiming to 'be potential reversioners obtained a decree on May 31, 1966 in a suit filed against the donor and the donee for a declaration that under the Punjab Customs (Power lo Contest) Act z, of 1920 the gift-deed was not binding on .them and that decree was confirmed in appeal on October 16, !"}}, {"text": "October 16, !", "label": "DATE", "start_char": 1210, "end_char": 1223, "source": "ner", "metadata": {"in_sentence": "Appellants 1 to 12 claiming to 'be potential reversioners obtained a decree on May 31, 1966 in a suit filed against the donor and the donee for a declaration that under the Punjab Customs (Power lo Contest) Act z, of 1920 the gift-deed was not binding on .them and that decree was confirmed in appeal on October 16, !"}}, {"text": "July 10, 1966", "label": "DATE", "start_char": 1231, "end_char": 1244, "source": "ner", "metadata": {"in_sentence": "On July 10, 1966, Mula\n\nacto,, ted the respondent."}}, {"text": "March 11, 1970", "label": "DATE", "start_char": 1282, "end_char": 1296, "source": "ner", "metadata": {"in_sentence": "On March 11, 1970 appellant No."}}, {"text": "August 23, 1971", "label": "DATE", "start_char": 1450, "end_char": 1465, "source": "ner", "metadata": {"in_sentence": "Mula died on August 23, 1971."}}, {"text": "December 13, 1971", "label": "DATE", "start_char": 1470, "end_char": 1487, "source": "ner", "metadata": {"in_sentence": "On December 13, 1971, respondent filed a suit for possesion of certain propert.ies including the property which Mula had gifted to appellant No."}}, {"text": "January 20, 1971", "label": "DATE", "start_char": 1640, "end_char": 1656, "source": "ner", "metadata": {"in_sentence": "The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court; In appeal by special leave, the appellants contended (i) In decreeing the suit the Courts below had overlooked the, relevant provisions of the Punjab\n\nCustoms (Power to Contest) Amendment Act, 1973 by virtue of which the legality of the gift made by Mula to appellant No."}}, {"text": "Amendment Act, 1973", "label": "STATUTE", "start_char": 1917, "end_char": 1936, "source": "regex", "metadata": {}}, {"text": "Mula", "label": "PETITIONER", "start_char": 1989, "end_char": 1993, "source": "ner", "metadata": {"in_sentence": "The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court; In appeal by special leave, the appellants contended (i) In decreeing the suit the Courts below had overlooked the, relevant provisions of the Punjab\n\nCustoms (Power to Contest) Amendment Act, 1973 by virtue of which the legality of the gift made by Mula to appellant No.", "canonical_name": "Mula"}}, {"text": "Bhagwati Devi", "label": "OTHER_PERSON", "start_char": 2119, "end_char": 2132, "source": "ner", "metadata": {"in_sentence": "13 could not be contested E and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under s. 8 of the\n\nPun'jab Limitation (Custom) Act, of 1920."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 2260, "end_char": 2264, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1973", "statute": "Amendment Act, 1973"}}, {"text": "(1969) 3 SCR 944", "label": "CASE_CITATION", "start_char": 3193, "end_char": 3209, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3419, "end_char": 3423, "source": "regex", "metadata": {"statute": null}}, {"text": "P. P. Juneja", "label": "LAWYER", "start_char": 4050, "end_char": 4062, "source": "ner", "metadata": {"in_sentence": "P. P. Juneja, for the appellants."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 4085, "end_char": 4096, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri, for respondent No."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 4098, "end_char": 4112, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri, for respondent No."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 4117, "end_char": 4127, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri, for respondent No."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 4195, "end_char": 4206, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J. (1) One Mula executed a registered gift deed in favour cif appellant No."}}, {"text": "October 16, 1967", "label": "DATE", "start_char": 4676, "end_char": 4692, "source": "ner", "metadata": {"in_sentence": "The suit was decreed by the trial court on May 31, 1966 and that decree was confirmed in appeal on October 16, 1967."}}, {"text": "August 28, 1971", "label": "DATE", "start_char": 4925, "end_char": 4940, "source": "ner", "metadata": {"in_sentence": "Mula died on August 28, 1971."}}, {"text": "January 29, 1971", "label": "DATE", "start_char": 5172, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "The suit was decreed by the trial court on January 29, 1971 and the decree was confirmed in appeal by the District Court and the Higb Court."}}, {"text": "June 3, 197", "label": "DATE", "start_char": 5279, "end_char": 5290, "source": "ner", "metadata": {"in_sentence": "( 4) On June 3, 197 6 appellants Jilcd a special leave petition in this Court challenging the High Court judgment."}}, {"text": "Jilcd", "label": "PETITIONER", "start_char": 5304, "end_char": 5309, "source": "ner", "metadata": {"in_sentence": "( 4) On June 3, 197 6 appellants Jilcd a special leave petition in this Court challenging the High Court judgment."}}, {"text": "June 11., 1976", "label": "DATE", "start_char": 5706, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "On June 11.,"}}, {"text": "Juneja", "label": "OTHER_PERSON", "start_char": 5892, "end_char": 5898, "source": "ner", "metadata": {"in_sentence": "(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted.", "canonical_name": "Juneja"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 7525, "end_char": 7534, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7774, "end_char": 7778, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8169, "end_char": 8173, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 9377, "end_char": 9403, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "JUneja", "label": "OTHER_PERSON", "start_char": 9476, "end_char": 9482, "source": "ner", "metadata": {"in_sentence": "Mr. JUneja attempted to get over the effect of thi's decision by invoking the provisions of s. 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.", "canonical_name": "Juneja"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9564, "end_char": 9568, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Succession Act, 1956", "statute": "the Hindu Succession Act, 1956"}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 10636, "end_char": 10665, "source": "ner", "metadata": {"in_sentence": "A learned Single Judge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of .1973, a declaratory de.cree already obtained by a reversioner would continue to be operative !"}}]}
{"document_id": "1977_3_369_371_EN", "year": 1977, "text": "CHET SINGH\n\nSTATE OF PUNJAB & ORS.\n\nMarch 24, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nConstitution of India, Article 136-Powers to be exercised when-whether non-est orders can be ig11ored-East Puniab Holdings (Consolidation and Pre- 1-ention of Fragmentation) Act 1948-Section 42 .\n\nGurdev Singh had certain complaints about the Consolidation Scheme.\n\nHe \\Vas not present when his application was being considered. Therefore, the application was dismissed by the Additional Director, Consolidation. Thereafter, Gurdev Singh respondent No. 3 filed an application for restoration supported by an affidavit attributing his absence to his illness. The Additional Director C accepted the ground of resJ)ondent No. 3 about illness and granted necessary relief to him. The appellant filed a writ_petition in the High Court under Articles 226 and 227 of the Constitution. The High Court held that the assertion of rights by the appellant merely because of some report contained in the \"Fard Badar\" could not take away the effect of the entries in the revenue records. The High Court alsc held that no injustice was caused to the appellant and, therefore. there was no ground for interference under Article 226.\n\nD Jn an appeal by Special Leave, the appellant contended that the Additional Director had no power to review his previous order. The power to review CQn~\n\nferred by section 42 of the Act has to be exercised only after hearing the interested parties. Since respondent No. 3 was not given an opportunity of being heard on account of his illness, it shows that the 9rder passed was nonest and can be ignored at any stage. The court dismissed the appeal on the ground that this was not a fit case for interference under Article 136. rhe Court, how ever, observed that if the appellant has any right on account of long possession or otherv.:ise he can assert them by adopting proper proceedings and that his E rights would not be affected by \\vhatever is staled in the judgment of this court as well as the High Court.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2150 of 1968.\n\n(Appeal by Special Leave from the Judgment and Order dated. 5.9. J 968 of the Punjab & Haryana High Court in L.P.A. No. 458/68).\n\nV. C. Malwjan, Hardev Singh and R. S. Sodhi, for the appellant.\n\n0. P. Sharma, for the respondents 1 and 2.\n\nK. R. Nagaraja and P. N. Puri, for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThis appeal under Article 136 of the Constitution is directed against a very detailed Judgment of the Punjab & Haryana\n\nHigh Court on a Writ Petition No. 1875 of 1965 filed under Articles 226 and 227 of the Constitution, assailing an order of the Additional Director, Consolidation of Holdings, passed on 8 June,\n\n1965. A .perusal of that order, together with the earlier order of 4 May, 1965, H and the application for restoration dated 15 May, 1965, filed by Gurdev Singh, respondent No. 3, shows : Gurdev Singh, wl10 had\n\n37 0\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\nsome complaint against the Consolidation Scheme, was not present so that his petition was ordered to be filed by the Additional Director, Consolidation on 4 May, 1965.\n\nGurdev Singh, soon thereafter i.e. on 15 May, 1965, filed an application for restoration supported by an affidavit, attributing his absence on 4 May, 1965, to his illness. The order dated 8 June, 1965, of the Additional Director, shows that the applicant Gurdev Singh's assertion that he could not attend due to illness, over which he had no control, was accepted by the Additional Director, who proceeded to exercise his powers under ection 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) and to set right the grievance of the applicant, Gurdev Singh, alter going into all the relevant records.\n\nThe learned Judge of the High Court, who heard the petition also went through the records very carefully, came to the conclusion that an assertion of rights by the petitioner/ appellant, a member of the Sanjam Group, merely because of some report contained in the \"Fard Badar,\" could not take away the effect of entries in the revenue records.\n\nThe learned Judge held that no injustice was caused to the petitioner/appellant also, there was no ground for interference under Article 226 of the Constitution.\n\nThe learned counsel for the appellant has relied upon the case of Harbhajan Singh v. Karam Singh & Ors. reported in 1966 (I) S.C.R. 817, where thiB Court held that the Addi. Director exercising the powers of the State Government has no jurisdiction under section 42 of the Act to review his previous order.\n\nSection 42 of the Act runs as follows :\n\n\"The State Government may at any time for the purpose of satisfying i\\self as to the legality or propriety of any order passed, scheme prepared or confirmed or repartltlon made by any officer under this 'Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit :\n\nProvided that no order or scheme or repartition shall be varied or reserved without giving the parties interested notice to appear and opportunity to be beard excep! in case where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration.\"\n\nThe proviso to Section 42 lays down that notice to interested parties to appear and opportunity to e beard are conditions precedent . to passing of an order under Section 42.\n\nThe fact that the. Additional Director was satisfied that the respondent, Gurdev Smgh, did not have an opportunity of being hard due to his illness, s:ems o us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to 1Je au order duly passed under\n\nSection 42 of the Act. It could be ignored as \"non est.\" The view taken in Harbhajan Singh's case (supra) would not apply to the\n\nCHET SINGH v. PUNJAB (Beg, C.J.) 3 71\n\ninstant case although Section 42 of the Act does not contain a power A of review.\n\nOrders which are 'non est' can be ignored at any stage.\n\nOn the facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution.\n\nThe appellant, if he has acquired any rights by reason of long possession, can assert them whenever any proceedings are taken before a competent authority to dispossess him.\n\nWhat we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have acquired by reason of possession.\n\nWe do not know and refrain from deciding who is actually in possession and for how long and , in what capacity.\n\nThis appeal is dismissed.\n\nParties will bear their own costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 36, "entities": [{"text": "CHET SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "CHET SINGH", "offset_not_found": false}}, {"text": "STATE OF PUNJAB & ORS", "label": "RESPONDENT", "start_char": 12, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB & ORS", "offset_not_found": false}}, {"text": "March 24, 1977", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "March 24, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 53, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 70, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 86, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 108, "end_char": 129, "source": "regex", "metadata": {}}, {"text": "Article 136", "label": "PROVISION", "start_char": 131, "end_char": 142, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 42", "label": "PROVISION", "start_char": 291, "end_char": 301, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gurdev Singh", "label": "LAWYER", "start_char": 305, "end_char": 317, "source": "ner", "metadata": {"in_sentence": "Gurdev Singh had certain complaints about the Consolidation Scheme.", "canonical_name": "Gurdev Singh"}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 844, "end_char": 864, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 1212, "end_char": 1223, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 42", "label": "PROVISION", "start_char": 1391, "end_char": 1401, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 1742, "end_char": 1753, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "V. C. Malwjan", "label": "OTHER_PERSON", "start_char": 2234, "end_char": 2247, "source": "ner", "metadata": {"in_sentence": "V. C. Malwjan, Hardev Singh and R. S. Sodhi, for the appellant."}}, {"text": "Hardev Singh", "label": "OTHER_PERSON", "start_char": 2249, "end_char": 2261, "source": "ner", "metadata": {"in_sentence": "V. C. Malwjan, Hardev Singh and R. S. Sodhi, for the appellant."}}, {"text": "R. S. Sodhi", "label": "LAWYER", "start_char": 2266, "end_char": 2277, "source": "ner", "metadata": {"in_sentence": "V. C. Malwjan, Hardev Singh and R. S. Sodhi, for the appellant."}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 2302, "end_char": 2311, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the respondents 1 and 2."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 2343, "end_char": 2357, "source": "ner", "metadata": {"in_sentence": "K. R. Nagaraja and P. N. Puri, for respondent No."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 2362, "end_char": 2372, "source": "ner", "metadata": {"in_sentence": "K. R. Nagaraja and P. N. Puri, for respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2441, "end_char": 2444, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThis appeal under Article 136 of the Constitution is directed against a very detailed Judgment of the Punjab & Haryana\n\nHigh Court on a Writ Petition No."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 2470, "end_char": 2481, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 2631, "end_char": 2651, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gurdev Singh", "label": "LAWYER", "start_char": 2953, "end_char": 2965, "source": "ner", "metadata": {"in_sentence": "3, shows : Gurdev Singh, wl10 had\n\n37 0\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\nsome complaint against the Consolidation Scheme, was not present so that his petition was ordered to be filed by the Additional Director, Consolidation on 4 May, 1965.", "canonical_name": "Gurdev Singh"}}, {"text": "Gurdev Singh", "label": "PETITIONER", "start_char": 3192, "end_char": 3204, "source": "ner", "metadata": {"in_sentence": "Gurdev Singh, soon thereafter i.e. on 15 May, 1965, filed an application for restoration supported by an affidavit, attributing his absence on 4 May, 1965, to his illness.", "canonical_name": "Gurdev Singh"}}, {"text": "Sanjam Group", "label": "ORG", "start_char": 4070, "end_char": 4082, "source": "ner", "metadata": {"in_sentence": "The learned Judge of the High Court, who heard the petition also went through the records very carefully, came to the conclusion that an assertion of rights by the petitioner/ appellant, a member of the Sanjam Group, merely because of some report contained in the \"Fard Badar,\" could not take away the effect of entries in the revenue records."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 4341, "end_char": 4352, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 42", "label": "PROVISION", "start_char": 4630, "end_char": 4640, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 4683, "end_char": 4693, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 5386, "end_char": 5396, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 5534, "end_char": 5544, "source": "regex", "metadata": {"statute": null}}, {"text": "Gurdev Smgh", "label": "RESPONDENT", "start_char": 5621, "end_char": 5632, "source": "ner", "metadata": {"in_sentence": "Additional Director was satisfied that the respondent, Gurdev Smgh, did not have an opportunity of being hard due to his illness, s:ems o us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to 1Je au order duly passed under\n\nSection 42 of the Act.", "canonical_name": "Gurdev Singh"}}, {"text": "Section 42", "label": "PROVISION", "start_char": 5854, "end_char": 5864, "source": "regex", "metadata": {"statute": null}}, {"text": "Harbhajan Singh", "label": "OTHER_PERSON", "start_char": 5929, "end_char": 5944, "source": "ner", "metadata": {"in_sentence": "The view taken in Harbhajan Singh's case (supra) would not apply to the\n\nCHET SINGH v. PUNJAB (Beg, C.J.) 3 71\n\ninstant case although Section 42 of the Act does not contain a power A of review."}}, {"text": "Section 42", "label": "PROVISION", "start_char": 6045, "end_char": 6055, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 6268, "end_char": 6279, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1977_3_372_388_EN", "year": 1977, "text": "SUPREME COURT REPORTS\n\nPUSHPABAI PURSHOTTAM UDESHI & ORS. .. . v.\n\nRANJIT GINNING & PRESSING CO, (P) LTD. & ANR.\n\nMarch 25, 1977\n\n[M._ H. BEG, C.J. AND P. S. KAILASAM, J.]\n\n!.fotor Vechicles Act 1939-S. 95, 110-Liability of insurance con1pany- Death of passenger not for reward-Quantum of compensation-Annual income if on the basis of basic wa?es.\n\nTorts-Negligence-Ru ipso loquitur-Rash and negligent driving-Meaning of-Rationalae--course of employment-Scope of employment-If driler ghcs a lift without charging anything-If master liable-Vicario_us liability-Master and servant.\n\nPurshottam Udeshi was travelling in a car which was driven by 1..Janager of the first respondent company. The car was insured with the second respondent.\n\nThe car dashed against a tree while proceeding fro°' Nagpur to Pandurna.\n\nPurshottam, Viho was aged 58. years at that time, died in the accident. His annual income was about Rs. 9000/-. The widow and children of Purshottam fiied a claim for compensation for a sum of Rs. 1 1ac under section 110 of the\n\nfotor Vehicles Act, 1939, before the Claims Tribunal. The respondents denied that the vehicle was driven in a rash or negligent manner and contended that the vehicle at the time of accident was perfectly in sound condition. It \\\\as\n\nalso contended that Pursbottam was travelling in the said vehicle on his ov.n responsibility and for his own purpose absolutely gratis and not on behalf of or at the instance of respondent No. 1 or the driver of the vehicle and, therefore, the claimants were not entitled_ to any compensation. The respondent pleaded inevitable accident.\n\nThe Tribunal found that the accident was as a result of negligent driving of the vehicle by the lanager. It also. found that the first respondent the owner of the company was liable to pay compensation to the claimants on account of negligence of their employee. The Tribunal awarded Rs. 31,209 /- as general damages on the basis of 5 years' earning less the amount which the deceased might have spent on himself and Rs. 2,000/- as special damages for funeral\n\nand post-funeral expenses. The Tribunal took into account the pay, D.A., conveyance allowance etc. for the purpose of determining income of the deceased. Both the respondents filed appeals in the High Court. The IIigh Court did not decide the question as to whether the accident was due to rash and negligent driving or the quantum of compensation allowed by the Tribunal was -proper or not on the groundthat the respondent No. 1 cannot be held vicariously liable for the act of their tanager in taking Purshottam as a passenger as the said act was neither in the course of his employment nor under any authority whatsoever; that no evidence wa.9' led to show that the respondent No. 1 was aware that Purshottam was being taken in the car as a passenger by their 1-fanager. The High Court heldthat Purshottam was no better than a trespasser as far as respondent No. 1 is concerned and that, therefore, respondent No. 1 cannot be made vicariously Hable. .\n\nJn an appeal by certificate, the appellants claimants contended :\n\n(1) That the accident was due to the rash and negligent driving of the\n\ntanager of respondent No. 1.\n\n(2) The accident took place during the course of the employment of the driver. ff Allowing the appeal,\n\nlIELD : lll The car was being driven rashly and negligently. Although no eye \\\\itnes5 was examined P.W.I. the brother of the deceased \\\\rho went to the spot soon after the accident was examined.\n\nHe depcsed that the car dashed\n\n., J\n\n• k\n\nPUSHPABAI v. RANJIT GINNING co; (Kai/asam, 1.) 373\n\n•against a tree. The tree was on the right hand side of the road, 4 ft. away A from the right-hand side of the main metalled road. The road was 15_ft. wide '3.nd was a metalled road. On other side of the road there were fields at lower Jevel. The tree against vlhich the car dashed was uprooted about 9 to 10'' from the ground. The car dashed so violently that it was broken in the front $ide. The vehicle struck sO violently that the machine of the car went back about a foot from its original position~ The steering wheel o~ the engine of the car receded back on the driver's side and the said -impact on the driver's side and by the said impact the occupants died and front seat also moved back. u- \"'Ihe witness was not cross-examined on these facts; The maxim of \"Res i_P5a\n\nloquitur\" clearly applies in the present case~ In view of the proved facts tbl': burden was on the respondents to prove the inevitable accident. (376 B-H]\n\nEller v. Selfridge (1930) 46 T.L.R. 236, referred to.\n\nThe normal rule is that it is for the plaintiff to prove negligence but in some icases considerable hardship is caused to the plaintiff as the true -cause of the C -atcident is not known to him but is solely within the knowledge of the defendant Vlho caused it. The plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant.· Th.is hardship is sought to be avoided by applying the principle of res ipsa loquitur. It me.ans the accident \"'speaks for itself' or \"'tells its own story\". The car could not ha Ye gone to the right extremity and dashed with such' violence with the tree if the driver had exercised reasonable -care and caution. The Court did not 1hink it necessary to remand the matter to the High Court to consider the question of rash and negligent driving since the evidence \\\\'as convincing. [377 D\n\nDE, 378, A. EJ\n\n(2) It is an admitted fact that the -driver of the car, the tanager of respondent No. 1, was proceeding from Nagpur to Pandhuma for purpose of delivering an amount of Rs. 20,000 /-. He was driving the car in the course of , the employment of respondent No. 1. It is now firmly established that the 1master's liability is based on the ground that the act is done in the scope or sourse of his employment or authority. (379 A-G]\n\nYoung v. Edward Box and Co. Ltd. (1951) I T.L.R. 789 at 793, approved.\n\n• Sitaram MOtilal Kalal v. SantanupraSad ]aishankar Bhiitt (1966)3 SCR-.527; Conway v. George Wimpey & Co. Ltd. 1951 All E. R. 363 and 62 T.L.R. 458, distinguished.\n\nOrmrod and Another v. Crosvilli Motor Services IJtd. (1953)2 All E.R. 753 and Canadian Pacific Railway Co. v.· Lockhart 1942 A.C. 591, referred to.\n\n(3) The l\\Ianager permitted Purshottamto .have a ride in the car; Taking into account the-highposition of the driver\" who was the l\\fanager'of the com- -iPany it is reasonable to presume in the absence of any evidence to the contrary the l\\Ianager had authority to carry Purshottam or acting in .the course of his <>mployment. There is nothing to support the conclusion of the High Court that the driver _was no! acting in the course of his employment. (382 D-F]\n\nCox v. Midland Counties Ry. Co. (3 Ex. 268) and Honghton v. pi[kinRfon, {1912) 3 K.B. 308 distinguished. .\n\n_ Twine v. Bean's Express, Ltd. 62 T.L.R~ p. 155, yCar 1945~6 distinguished.\n\n. 4. RCcent trend in law is to make the master liabie' for acts which do not -strictly fall \\\\o'ithin the term \"'in \"the course of employment\" as ordinarily under\n\nstood. [3 83 Fl\n\n5. The Hig:h Court did not go into the question of quantum of compen.- sation. The Tribcna1, however, ought not to have taken D.A., Conveyance H\n\n• Allowance etc., into account for the purposes of detern1ining the income of the _ deceased.· Thus; the income of 5 \"years would stand reduced from Rs. 31,000/-\n\nto Rs. 25,500 /- over and above special damage of Rs. 2,000/-. [385 A, C-D]\n\nSUPREME cou:n REPORTS\n\n.[1977] 3 S.C.R.\n\n6. As far as respondent No. 2 Insurance Co. is concerned it contended that since the Company had scifically limited its liability in respect of injurY to passengers to Rs. 15,000/- ii cannot be made liable for anything in excess of\n\nRs~ 15,000/-; The respondent No. 1 contended _that the insurance cover under the Act extended to the injury to the passengers also and relied on Section 95(1) (b)(i) which provides against any libility to the owner which may be incurred by him in respect of death or bodily injury to any person or damage to any person of a third party caused by or arising out of the use of the vehicle in a public place. Section 9 5 of the ~Iotor Vehicles Act as amended by Act 56 of 1969, is based on the Road Traffic Act of 1960 or\n\nhe earlier Act of 1930 in England. Section 95(a) and 95(b)(i) of the Act adopts the provisions of the English Road Traffic Act, 196.P. and exclude5 the liability of the Insurance Co. regarding the risk to the passengers. Section 95 provides that a policy of insurance must b: a policy which insures the persons '1.gainst any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or. arising out of use of the vehicle in a public place. Proviso_ 2 to Section 95(b) makes it clear that it is not required that a policy of insurance should 'cover risk of the passengers :who are not carried for hire or reward. Under section 95, the risk to a passenger in a vehicle who _is not carried for hire or reward is not required to be insured. The Insurer can howevr alv,:ays take policies for a risk which is not covered by section 95. In the present case, the insurer had insured with the Insurance Co. the risk to the passenger to the .extent of. Rs. 15,000/-. Clause 1 of the section 2 to the. Insurance Policy •\"'hich requires the Insurance Co. to indemnify the insured in respect of , claimants' claim which becomes legally payable in respect of death of or bodily injury to any person is not happily worded.\n\nHowever, since the said clause .talks of .. except so far as necessary to meet the requirements of section 9 5 of the 11otor Vehicles Act, 1939\" would indicate that the liability is restricted .to the liability arising out of the statutory requirements under section 95. The policy read \"'ith the other clauses makes it clear that the respondent no. 2 would be liable to the extent of Rs. 15,0001-: (385 G-H, 386 A, F, 387 B, H,\n\n388 A-DJ .\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No: 2071 of\n\n1968. -·\n\n(From the Judgment and Order dated 20-4-1967 of the Madhya Pradesh High Court in Misc. First Appeal No. 104/66). ·\n\nRameshwar Nath, for the appellants\n\nF U. R. Lalit and A. G. Ratnaparkhi, for respondent No. 1.\n\nNau.nit Lal and Miss Lizlita Kohli, for.respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.-This is an appeal by certificate under Article 133 Cl )(a) of the Constitution granted by the High Court of Madhya Pradesh.\n\nThe appellants filed a claim for compensation of a sum of rupees one lakh under section 110 of the Motor Vehicles Act before the Claims Tribunal, Jabalpur. The first claimant is the wife and the claimants . 2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner. The car which was a Hindustan Ambassador Saloon was insured with second opponent, Union\n\n, 4\n\nFire Accident and General Insurance Co. Ltd.\n\nThe deceased was A aged 58 years at the time of his death and according .to the petitioners was earning annually about Rs. 9,000.\n\nThey claimed a compensation of rupe(,'S one lakh.\n\nThe opposite parties, the owner and the insurance company, opposed the claim.\n\nWhile admitting that the vehicle was proceeding from Nagpur on its way to Pandhurna for the purpose mentioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle B was at the time of accident in perfectly sound conition. It was submitted that the husband of the applicant No. 1 was travelling in the said vehicle on his own responsibility and for his own purpose and absolutely gratis and not on behalf of or at the instance of the opposite 'party No. 1, or 'the driver of the vehicle and therefore the claimants are not entitled to any compensation.\n\nThe opposite parties pleaded that the incident was as a result of inevitable accident and C not due to any act of rashness or negligence on the part of the driver.\n\nThey opposed the claim of the compensation as highly exaggerated.\n\nThe Motor Accidents Claims Tribunal, Jabalpur, found that the accident of the motor vehicle was as a result of negligent driving of the vehicle by the Manager, Madhavjibhai Mathuradas Ved, the driver of the vehicle, It also found that the first respondent, the owner of D the company, is liable to pay compensation to the claimants on account of the negligence of their employee Madhavjibhai which caused the death of Purshottam Tulsidas Udeshi.\n\nRegarding the compensation payable the Tribunal fixed Rs. 31,209.15 as general damages in addition to Rs. 2,000 as special damages for funeral and post-funeral ex, penses.\n\nThe owner, first opponent, preferred an appeal to the High Court impleading the claimants and the insurance com- E pany as respondents against the award passed by the Claims Tribunal.\n\nThe High Court did not decide the question as to whether the accident was due to the rash and negligent driving or the quantum of compensation to which the claimants were entitled to as it allowed the appeal by the owner on the ground that the owner cannot be held vicariously liable for the act of Madhavjibhai in taking Purshottam as a passenger as the said act was neither in the conrse of his F employment nor under any authority whatsoever and that there was no evidence that the owners of the vehicle were aware that Purshottam was being taken in the car as a passenger by their Manager, Madhavjibhai.\n\nHolding that so far as the owners are concerned Purshottam was no better than a trespasser the High Court held that the owners were not vicariously liable.\n\nOn an application by the claimants the High Court granted a certificate and thus this appeal G has come before this Court. \"'!\n\nThe qnestions that arise for consideration are whether on the facts of the case the claimants have established (1) that the accident was due to the rash and negligent driving of Madhaviibhai Mathuradas Ved, the Manaer of the company, and (2) whether the incident took place during the conrse of the employment of the driver.\n\nIn H the event the claimants succeed on these two points the amount of compensation to which they are entitled would have to be determined.\n\nt\\ The High Court relying on three decisions in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt('), Canadian Pacific Railway Company v. Leonard Lockhart(2), and Conway v. George Wimpey & Co. Ltd.(\"), came to the conclusion that the rash and negligent driving by the Manager was not in the course of his employment.\n\nThe learned counsel for the respondent relied on some other decisions which will be referred to in due course.\n\nThe High Court has not gone into the question as to whether the car was. being driven rashly and negligently by the owner's employee as it held that the act was not in the course of bis employment.\n\nWe feel that the question as to whether the car was being driven ra'shly and negligently would have to be decided on the facts of the case first for, if the claimants fail to establish rash and negligent act no other question would arise. We would therefore proceed to deal with this question first.\n\nThe claimants did not lead any' direct evidence as to how the accident occurred.\n\nNo eye-witness was examined.\n\nBut P.W. 1, the younger brother of the deceased Purshottam Udeshi, who went to the spot soon after the accident was examined.\n\nHe stated that he went with one of his relatives and an employee of his brother's employer and saw that the car had dashed against a tree while proceeding fr(lm Nagpur. to Pandurna.\n\nThe tree was on the right hand side of the road, fonr feet away from the right hand 'side of the main metalled road.\n\nThe vehicle will have to proceed on the left hand side of the road.\n\nThe road was 15 feet wide and was a straight metalled road.\n\nOn either side of the road there were fields.\n\nThe fields were of lower level.\n\nThe tree against which the car dashed was uprooted about 9 to 10 inches from the ground.\n\nThe car dashed so heavily that it was broken in the front side.\n\nA photograph taken at that time was also filed.\n\nAccording to the witness the vehicle struck so heavily that the machine of the car from its original position went back about a foot.\n\nThe steering wheel and the engine of ihe car receded back on driver's side and by the said impact the occupants died and front seat also moved back. The witness was not cross-examined on what he saw about the state of the car and the tree. It was not suggested to him that the car was not driven in a rash and negligent manner. In fact there is no cross-examination on the aspect of rash and negligent driving.\n\nThe Claims Tribunal on this evidence found that \"it was admittedly a mishap on the right side of the road wherein the vehicle had dashed against a tree beyond the pavement so violently as not only to damage the vehicle badly but also entailing death of its three occupa11ts, maxim 'res ipsa loquitur' applies (See Ellor v. Selfridge [1930], 46 T.L.R. 236)\". The Tribunal proceeded to discuss the evidence of P.W. 1 and found on the evidence that it cannot help concluding that the dashing of the car against the tree was most violent and that it was for the respondents to establish that it was a case of inevifable accident.\n\nThey have led no evidence. It may at once be stated that though the opposite parties had pleaded that this is a case of inevitable accident they have\n\n\n(2) A.LR. 1943 P.C. 63.\n\n(3) [19511 I A.E.R. 363.\n\n~ ..\n\nnot led any evidence to establish their plea. The burden resfs on the opposite party to prove the inevitable accident.\n\nTo succeed in such a defence the opposite party will have to establish that the cause of the accident could not have been avoided by exercise of ordinary care and caution. \"To establish a defence of inevitable accident the defendant must either show what caused the accident and that the result was inevitable, or he mu'st show all possible causes, one or more of which produced the effect, and with regard to each of such possible causes he must show that the result could not have been avoided.\" (Halsbury's Laws of England, Third Ed., Vol. 28, p. 81). No such attempt was made and before us the plea of inevitable accident was not raised.\n\nWe have therefore to con.sider whether the claimants have made out a case of rash and negligent driving.\n\nAs found by the Tiibunal there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act could be inferred.\n\nThe Tribunal has applied the doctrine of \"resipsa-loquitur\". It has to be ccins; dered whe:her under the circumstances the Tribunal was justified in applying the doctrine.\n\nThe normal rule is that it is for the plaintiff to prove negligence bu( as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is. solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant This hardship is sought to be avoided by µpplying. the principle of res ipsu luquitur.\n\nThe general purport of the words res ipsa loquitur is that the accident \"speaks for itself\" or tells its own story.\n\nThere are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more.\n\nIt will then be for the defendant to establish that the accident happened due to •ome other cause that his own negligence.\n\nSalmond on the Law of Torts (15th Ed.) at p. 306 states : \"The maxim res ipsa loquitur applies whenever it i's\n\nso improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused.\" In Halsbury's Laws of England, 3rd Ed., Vol. 28, at p. 77, the position is stated thus : \"An exception to the general rule that the burden of proof of the alleged negligence i's in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the\n\n<lefendant's negligence, or where the event charged as negligence \"tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous.\" Where the maxim is applied the burden Is on the defendant to show either that in fact ne was not negligent or that the accident might moreprobably have happened in a manner which did not connote negligence on his part.\n\nFor the application of the principle it must be shown that the car was under the management of tile defendant and ihat the accident is such as in ordinary course of things does not happen if those who had the management used proper care.\n\nApplying the principles stated above we have to see whether the requirements of the principle\n\nhave been sati'sfied.\n\nThere can be no dispute that the car was under the management of the company's manager and that from the facts. disclosed by P. W. 1 if the driver had used proper care in the ordinary course of things the car could not have gone to the right extreme of the road, dashed against a tree and moved it a few inches away. The learned counsel. for the respondents submitted that the road is a very narrow road of the width of about 15 feet on either side of which were fields and that it is quite probable that cattle might have strayed into the road suddenly causing the accident.\n\nWe are unable to accept the plea for in a country road with a width of about 15 feet with fields on either side ordinary care requires that the car should be driven at a speed in which it could be controlled if some stray cattle happened to come into the road.\n\nFrom the description of the accident given by P.W. 1 which stands unchallenged the car had proceeded to the right extremity of the road which is the wrong side and dashed against a tree uprooting it about 9 inches from the ground.\n\nThe car was broken on the front side and the vehicle struck the tree so heavily that the engine of the car was displaced from its original position one foot on the back and the steering wheel and the engine of the car had receded back on the driver's side.\n\nThe car could not have gone to the right extremity and dashed with such violence on the tree if the driver had exercised reasonable care and caution.\n\nOn the facts made out tlie doctrine is applicable and if is for the opponents to prove th:i\\ the incident did not take place due to their negligence.\n\nThis they have not even attempted to do.\n\nIn the circumstances we find that the Tribunal was justified in applying the doctrine.\n\nIt was submitted by the Learned counsel for the respondents that as the High Court did not consider the question this point may be remitted to the High Court.\n\nWe do not think it necessary to do so for the evidence on record is convicing to prove the case of rash and negligent driving set up by the claimants.\n\nThe 'second contention that was raised by the counsel for the appellants is that the High Court was in error in holding that the incident did not take pJa:ce in the course of the employment or under the authority of the company.\n\nThe High Court found that there is no evidence that the owner of the vehicle was aware that Purshottam was being taken in !lie car as a passenger by Madhavjibhai and in the circumstances the owner cannot be held liab1e for the tortious act of the servant.\n\nThe High Court found that the car was going from Nagpur to Pandhurna on the business of the company and it may also be that Madhavjibhai, the Manager of the owner's car, was also going on the business of the owner and it may also be that he had implied authority to drive the vehicle.\n\nHaving agreed with the contentions of the claimants so far the High Court came to the conclusion that there were no pleadings or material on record to establish that Purshottam was travelling in the vehicle either on some business of the owner of the vehicle or under any ostensible authority from them to their manager Madhavjibhai lo take Purshottam as a passenger in the vehicle.\n\nBefore dealing with the right of Purshottam as a passenger, we will consider the question whether the\n\naccident took r>lace during the course of the employmenf of Madhav- A jibhai by the company. It is admitted in the written statement by the owner that Madhavjibhai was the Manager of opposite party No. 1 and that the vehicle was proceeding from Nagpur on its way to Pandhuma for purpose of delivering an amonnt of Rs. 20,000 to the Ginning and Pressing factory at Pandhurna. The Tribunal found on the pleadings that Madhavjibhai was the emp!Oyee of the company and during the course of employment oy driving the motor car B he negligently caused the death of Purshottam.\n\nThe High Court also confirmed the findings and found that Madhavjibhai, the Mana- ., ger of the ownr of the car, was going on the business of the said owner and that it may be that the Manager had the implied authority to drive the vehicle.\n\nOn such a finding which is not disputed before us, it is difficult to resist the conclusion that the accident was due to the negligence of the servant in the course of his employment and C that the master is liable. On the facts found the law is very clear but as the question of the company's liability was argued at some length we will proceed to refer to the law on the subject.\n\nIt is now firmly established that the master's liability is based on the ground that the act is done in the scope or course of his employ- D ment or authority. The position was stated by Lord Justice Denning in Young v. Edward Box and Co. Ltd.(1). The plaintiff and fellow workmen were given a lift on one of the defendants' lorries with the consent of his foreman and of the driver of the lorry. On a Sunday evening the plaintiff, in the course of that journey, was injured by the negligence of the driver of the lorry and the plaintiff brought an action against the defendants claiming damages for his injuries. The defence E was \\hat the plaintiff, when on the lorry, was a trespasser. The traffic manager of the defendants pleaded that he had never given instructions to the foreman that he should arrange for lifts being given to the plaintiff and his fellow-workmen on Sundays and that the foreman had no authority to consent to the plaintiff's riding on the lorry.\n\nWhile two learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman, and F that the plaintiff was entitled to rely on that authority and in tha~ respect was a licensee, Lord Denning held that although the plaintiff, when on the lorry, was a trespasser, so far as the defendants were concerned, the driver was acting in the course of his employmen't in giving the plaintiff a lift and that was sufficient to make the defendants liable and that he did not base his judgment on the consent of \\he foreman. Lord Justice Denning stated the position thus : G\n\n\" .... the first question is to see whether the servant was liable. lf the answer is Yes, the second question is to see whether the employer must shoulder the servant's liability.\n\nSo fa~ as the driver is concerned, his liability depends on whether the plaintiff was on the lorry with his consent or not. XXXXX.\n\n(I) (1951) I T.L.R. 789 at 793.\n\nThe next question is how far the employers are liablo for their servant's conduct. In order to make the employers liable to the passenger it is not sufficient that they should be liable for their servant's negligence in driving.\n\nThey must also be responsible for his conduct in giving the man a lift.\n\nIf the servant has been forbidden, or is unauthorised, to give anyone a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned; but that is not of itself au 'answer to the claim. XX X X X In my opinion, when the owner of a lorry sends his servant on a journey with it, thereby putting the servant in a position, not only to drive it, but also be give people a lift in it, then he is answerable for the manner in which the servant conducts himself on the journey, not only in the driving of it, but also in giving lifts in it, provided, of course, that in so doing the servant is acting in the course of his employment.\"\n\nLord Justice Denning concluded by observing that the passenger was therefore a trespasser, so far as the employers were concerned; but nevertheless the driver was acting in the course of his employment, and that is sufficient to make the employers liable. It will thus be seen that while two of the learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman and the plaintiff was entitled to rely on that authority as a licensee, Lord Denning based it on the ground that even though the plaintiff was a trespasser so far as the defendants were concerned, as the driver was acting in the course of his employment in giving the plaintiff a lift, it was sufficient to make the defendants liable. Applying the test laid down there can be no difficulty in concluding tha; t the right to give leave to PurshoHam to ride in the car was within the ostensible authority of the Manager of the company who was driving the car and that the Manager was acting in the course of his employment in giving lift to Purshottam. Under both the tests the respondents would be liable.\n\nWe will now refer to the three cases relied on by the High Court for coming to the conclusion that the accident did not take place during the course of employment. The first ease referred to is Sitarani Motikil Kalal v. Santanuprasad Jaishankar Bhatt('). The owner of a vehicle entrusted it to A for plying it as a taxi. B who used to clean the taxi was either employed by the owner or on his behalf by A. A trained B to assist him in driving the taxi and took B for obtaining a licence for driving.\n\nWhile taking the test B caused bodily injury to the respondent. A was not present in the vehicle at the time of the accident. On the question whether the owner was liable the majority held the view that the owner was not liable. On the facts the court found that the person who had borrowed the taxi for taking out a licence and the driver who lent the same was not &Cling in the course of his business. The court on an application of the test laid down in various decisions held that there is no proof that the second defendant, the driver, was authorized o coach the cleaner so that the cleaner\n\n(1) (1966] 3 S.C.R. 527.\n\nPUSHPABAI v. RANJ!T GINNING co. (Kailasam, /.) 3 81\n\nmight become a driver and drive the taxi and that it appeared more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to shart< the ta.sk of driving.\n\nThe owner\"s plea that it had not given any such authority was accepted by the court. Holding that it had not been provecl that the act was impliedly authorized by the owner or to come within any of the extensions of the doctrine of scope of employment the court held that the owner is not liable. This Court has held that the test is whether the act was done on the owner's business or that il was proved to have been impliedly authorized by the owner. At page 537 it is stated that the law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment. Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorised by the master.\n\nThe extension of the doctrine of the scope of employment noticed in the judgment refers to the decision of Ormrod and Another v. Crosville Mawr Services Ltd., and Another( 1), where Lord Denning stated : \"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment.\n\nThis is not correct. The owner is also liable if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes.\" The Supreme Court accepted the test and to that extent this may be taken as an extension of the doctrine of scope of employment.\n\nThus, on the facts as we have found that the accident took place during the course of employment the decision in Sitaram Motilal Kalal is of no help to the respondents.\n\nThe next case which is referred to by the High Court is Canadian Pacific Railway Company v. Lockhart('). In that case one S was employed as a carpenter by the railway company. In the course of his employment he was required to make repairs of various kinds to employer's property. He made a key for use in a lock in the station at N far away from his headquarters at W.\n\nHe was paid per hour and the railway company kept vehicles to be used by S available for him.\n\nS, however, had a car of his own and without communicating his intention to anyone he used it on his way to N.\n\nAn accident happened on the way owing to S's negligence. It was also in evidence that the railway company had issued notice to its servants particularly to S warning him against using their private cars unless they had got their cars insured agains't third party risk.\n\nOn the facts, the Privy Council held that the means of transport used by the carpenter was clearly incidental to execution of that for which he was employed. As what was prohibited was not acting as a driver but using a non-insured car, the prohibition merely limited the way in which the servant was to execute the work which he was employed to do and that breach of the prohibition did not exclude the liability of the master to third party. We do not see how this case would help the respondents. On\n\n(I) (1953) 2 All. E.R. 753.\n\n(2) (1941) A.C. 591.\n\nA the other hand it supports the contention of the counsel for the appellants that when the Manager was driving the car for the purpITTeS of the company it was in the course of his employment.\n\nThe third case that is referred to by the High Court is Conway v.\n\nGeorge Wimpey & Co. Ltd.('). The defendants, a firm of contractors, were engaged in building work at an aerodrome, and they provided lorries to convey their employees to the various places of their work on the site.\n\nJn the cab of each lorry was a notice indicating that the driver was under strict orders not to carry passengers other than the employees of the defendants during the course of, and in connection with, their employment, and that any other person travelling on thEO, vehicle did so at hi~ own risk. Further the driver of the Jorry had received clear oral instructions prohibiting him from taking other persons.\n\nThe plaintiff who was employed as a labonrer by anothen firm of contractors at the aerodrome, while on his way to work, was permitted by the driver to ride on one of the defendants' lorries for some distance across the aerodrome and while dismounting the plaintiff was injured owing to driver's negligence. The court held that on the facts of the case the taking of the defendants' employees on the vehicle was not merely a wrongful mode of performing an act of the class which the driver in the prese1't case was employed to perform but was the performance of al\\ act of a class which he was not employed to perform at all.\n\nThe facts stated above are entirely different from those. which arise in the present case before us as in the case before the Court of Appeal(') there was a notice indicating that the driver was under strict orders not to carry passengers and the driver was instructed not to carry others while in the present case a responsible officer of the company, the Manager, had permitted Purshottam to have a ride in the car. Taking into account the high positiQn of the driver who was the Manager of the company, it is reasonable to presume, in the absence of any evidence to the contrary, that the Manager had authority to carry Purshotam and was acting in the course of his employment.\n\nWe do not see any support for the conclusion arrived at by the High Court that the driver was not acting in the course of his employment.\n\nWe will now procee<X to refer to some cases which were cited by the learned counsel for the respondents. The learned counsel placed reliance on the decision in Houghton v. Pilkington.(') In that case the plaintiff at the request nf a servant of the defendant got into the defendant's cart which was then in the chrage of 'the servant, in order to render assistance to another servant of the defendant who had been rendered unconscions by an accident. The plaintiff fell out of the cart and was in jnred through the negligence of the servant in charge of the cart in causing the horse to start.\n\nJn an action against the defendent for damages for the injnries sustained by the plaintiff it was held that the existence of an emergency gave no implied authority to the servant to invite the plaintiff into the cart and that the defendant was not liable\n\n(I) (1951) (!) All. E.R. 363.\n\n(2) 62 T.LR. 458.\n\n(3) (1912) 3 K.B. 308.\n\nto ihe plaintiff. Justice Bankes while agreeing with Justice Bray who A delivered the leading judgment expressed his view that the lower court had taken the view that an emergency had arisen which gave the defendant's servant implied authority to invite the plaintiff into the cart for the purpose of rendering assistance to the injured boy.\n\nThe learned Judge was first inclined to agree with that view but because of the case being governed by Cox v. Midland Counties Ry. Co. (3 Ex. 268) he felt he could not consistently with that decision hold that in the B circumstances the driver of the cart had any implied authority to invite the plaintiff to get into the car. The facts in Houghton v. Pilkington are entirely different and the decision was based on the ground that existence of the emergency did not confer on the driver of the cart authority to invite the plaintiff into the cart. ·\n\nThe next case thait was cited by the learned counsel for the respondents was Twine v. Bean's Express, Limited('). The defendants provided for the use of a bank a commerciail van and a driver on the terms that the driver remained the servant of the defendants and that the defendants accepted no responsibility for injury suffered by persons riding in the van who were not employed by them.\n\nThere were two notices on the van, one stating that no unauthorized person was allowed on the vehicle. and the other that driver had instructions not to a!low unauthorized travellers in the van, and that in no event would the de- . fendants be responsible for damage happening to them.\n\nOne T who \"!as not authorized to ride in the van got a, lift in the van with the consent of the driver. Owing to the negligence of the driver the accident occurred and T was killed.\n\nThe contention tha't the accident arose while the driver was engaged on a duly authorized journey was negatived and it was held that defendants owed no duty to T to take care. This case was taken up on appeal which confirmed the view of thel trial court holding that the driver in giving the lift to T was clearly not acting within the s_cope of his employment and his employers were consequently not liable. The facts are totally different. The learned counsel for the respondents was not able to produce any authority which. would support his contention that on the facts of the case found, the company should not be held liable.\n\nBefore we conclude, we would like to point out that the recent trend in law is to make the master liable for acts which do not strictly fall within the term \"in the course of the employment\" as ordinarily understood.\n\nWe have referred to Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhat (supra) where this Court accepted the law laid down by Lord Denning in Ormrod and Another vs. Crosville Motor Services Ltd. and Another (supra) that the owner is not only liable for the_ negligence of the driver if that driver is his servant acting in the course of his employment but also when the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. Ti1is extension has been accepted by this Court. The law as laid down by Lord Denning in Young v. Edward Box and Co. Ltd. already referred to i.e. the first question is to see whether the servant is liable\n\n(I) 62 T.L.R. p. 155, year 1945-56.\n\n!0-436SCI/77\n\nand if the answer is yes, the second question is to see whether the em- !oyer must shoulder th_e servant's liability, has been uniformally accepted as stated in Salmond Law of Torts, 15th Ed., p. 606, in Crown Proceedings Act, 194 7 and approved by the House of Lords in Staveley Iron & Chemical Co. Ltd. v. Jones(') and I.C.l. Ltd. v. Shatwell(').\n\nThe scope of the course of employment has been extended in Navarro\n\nv. Moregrand Ltd. & Anr(3 ) where the plaintiff who wanted to acquire the tenancy of a certain flat, applied to the second defendant, a person with ostensible authority to conduct the business of letting the particular flat for the first defendant, the landlord. The second defendant demanded from the plaintiff a payment of £225 if he wanted the flat and the plaintiff paid the amount. The plaintiff sought to recover the sum from the landlord underthe Landlord and Tenant (Rent Control) Act, 1949. The Court of Appeal held that the mere fact that the second defendent was making an illegal request did not constitute notice to the plaintiff that he was exceeding his authority and that, though the second defendant was not acting within his actual or ostensible authority in asking for the premium, as the landlord had entrusted him with the Jetting of the flat, and as it was in the very course of conducting that business that he committed the wrong complained of he was acting in the course of his employment. Lord Denning took the view that though the second defendant was acting illegally in asking for and receiving a premium and had no actual or ()Stensible authority to do an illegal act, nevertheless, he was plainly acting in the course of his employment, because his employers, the landlords, had entrusted him with the full business of letting the property, and it was in the very course of conducting that business that he did the wrong of which complaint is made.\n\nThis decision has extended the scope of acting in the course of employment to inc1ude an illegal act of asking for and receiving a premium though the receiving of the premium was not authorized. We do not feel called upon to consider whether this extended meaning should be accepted by this Court. It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson(<) and stated that \"the master is responsible for a criminal act of the servant if the ad is done within the general scope of the servant's employment.\" Lord Justice Denning would not go to this extent and felt relieved to find that in the autho-- rized Law Reports (1951) 1 K.B. 342, the passage quoted above was struck out. We respectfully agree with the view of Lord Denning that the passage attributed to Lord Chief Justice Goddard went a bit too far.\n\nOn a consideration of the cases, we confirm the law as laid down by this Court in Sitaram Motilal Kalal, v. Santanuprasad Jaishankar Bhatt (supra) and find that_in this case the driver was acting in the course of his employment and as such the owner is liable. We therefore set aside the finding of the High Court that the act was not committed in the course of employment or under the authority of the master, and allow the appeal.\n\n(1) (1956) A.C. 627.\n\n(2)(1965) A.C. 656.\n\n(3) (1951) 2 T.L.R. 674.\n\n(4) 66 The Times L.R. (Pt. 2) 717.\n\n' •\n\n. ~\n\nThe only point that remains is the determination of the quantum of compensation to which th~ appellan.ts ar~ entitled to.\n\nTe J; Iigh Com; t did not go into this question but tlie Tnbunal aer taking mto consideration the various facts fixed the compensatron at Rs. 33,209.15 with costs and directed that the insurance company shall fndemnify the owner to the extent of Rs. 15,000. The Tribunal fixed special damages for funeral and post-funeral expenses including transport charges at Rs. 2,000. This item is not disputed. The second item is a sum of Rs. 31,209.15 which according to the Tribunal would have been the amount which the deceased would have earned by continuing to work for a period of 5 years. The Tribunal accepted the documents produced by the claimants regarding the income of the deceased and fixed it at Rs. 9,316.83 per annum. Out of this amount the Tribunal rightly excluded a SUII! of Rs. 1,875 which is the bonus the deceased would have got as it cannot be taken into account and fixed the net amount of earning at Rs. 7,441.83 per year and Rs. 37,209.15 for 5 years.\n\nAfter deducting Rs. 6,000 which the deceased might have spent on himself the Tribunal arrived at a figure of Rs. 1,209 .15 under this head. The learned counsel for the respondents referring to item No. 27 pointed out that the pay of the deceased was only Rs. 425 per month and that the Tribunal was in error in including the dearness allowance, conveyance allowance and other expenses and that the income of the deceased should have been taken as only Rs. 425 per month.\n\nThe learned counsel for the appellants accepts this figure.\n\nTaking Rs. 425/- being the monthly income the annual income totals up to Rs. 5,100/- . and for 5 years to R, s. 25,500/-. Adding to this Rs. 2,000/- which was given as special damages the total amount will come to Rs. 27,500/-. We accept this calculation as correct and restore the award passed by the Claims Tribunal but restrict it to an amount of Rs. 27,500/-.\n\nAs the Union Fire Accident & General Insurance Co. Ltd., Paris, carrying on business at Nagpur bas been nationalised, though the second respondent before the Tribunal was represented by a counsel, we directed notice to the nationalised insurance company so that they would also be heard. ·\n\nThe nationalised insurance company has taken notice and appeared through Mr. Naunit Lal, advocate. The insurance company bad nothing further to add except as to the quantum of liability of the insurance company so far as injuries to the passengers are concerned.\n\nMr. Naunit Lal submitted that the scope of the statutory insurance does not cover the injury suffered by the passengers and as the owner has specifically insured under the insurance policy the risk to passengers to the extent of Rs. 15,000 only the liability of the insurance company should be limited to Rs. 15,000. On behalf of the owner it was submitted that the insurance cover under the Act extended to the injury to the pssengers also a; id soght to upport his contention y referrmg to sectron 95(1){b)(1) which proVIdes against any liability to the owner which may be incurred by him in respect of death of. or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.\n\nAs section 95 of the Motor Vehicles Act, 1935 as amended by Act 5 6 of 1969 is based on the English Act it is useful to refer to that.\n\nNeither the Road Traffic Act, 1960, or the earlier 1930 Act required users of motor vehicles to be insured in respect of liability for death or bodily injury to passengers in the vehicle being used except a vehicle in which passengers were carried for hire or reward or by reason of or in pursuance of a contract af employment. In fact, sub-section 203 ( 4) of the 1960 Act provided that the policy shall not be required to cover liability in respect of death of or bodily injury to persons being carried in or upon, or entering or getting on to or alighting from, the vehicle at the time of the occurrence of the event out of which the claims arise.\n\nThe provisions of the English Act being explicit the risk to passengers is not covered by the insurance policy.\n\nThe provisions under the English Road Traffic Act, 1960, were introduced by the amendment of section 95 of the Indian Motor Vehicles Act. The law as regards general exclusion of passengers is stated in Halsbury's Laws of England, Third Edition, Vol. 22, at p. 368, para 755 as follo\\'(S :-\n\n\"Subject to certain exceptions a policy is not required to cover liability in respect of the death of, or bodily injury to, a person being carried in or upon, or entering or getting into or alighting from, the vehicle at the time of the occurrence of the event out of which the claim arises.\"\n\nIt is unnecessary to refer to the subsequent development of the English law and as the subsequent changes have not been adopted in the Indian statute.\n\nSuffice it to say that the Motor Vehicle (Passenger Insurance) Act, 1971, made insurance cover for passenger liability compulsory by repealing paragraph (a) and the proviso of sub-section 203 ( 4). But this Act was repealed by Road Traffic Act, 1972 though under section 145 of 1972 Act the coming into force of the provisions of Act 1971 covering passenger liability was delayed under December 1, 1972. ( vide Bingham's Motor Claims Cases, 7th Ed., p. 704).\n\nSection 95(a) and 95(b)(i) of the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960, and excluded the liability of the insurance company regarding the risk to the passengers. Section 95 provides that a policy of insurance must be a policy which insures the persons against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The plea that the words \"third party\"\n\nare wide enough to cover all persons except the person and the insurer is negatived as the insurance cover is not available to the passengers made clear by the proviso to sub-section which provides that a policy shall not be required\n\n\"(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being\n\ncarried in or upon or entering or mounting or alighting from A the vehicle at the time of the occurrence of the event out of which a claim arises.\"\n\nTherefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the B counsel for the insurance company will have to be accepted and the insurance company held not liable nnder the requirements of the Motor Vehicles Act.\n\nThe insurer can always take policies covering risks which are not covered by the requirements of section 95. In this case the insurer had insured with the insurance company the risk to the passen- C gers.\n\nBy an endorsement to the policy the insurance company had insured the liability regarding the accidents to passengers in the following terms :\n\n\"In consideration of the payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below D for bodily injury as hereinafter defined sustained by any passenger ............ \"\n\nThe scale of compensation is fixed a( Rs. 15,000. The insurance company is ready and willing to pay compensation to the extent of Rs. 15,000 according to this endorsement bnt the learned counsel for the insured submitted that the liability of the insurance company is E unlimited with regard to risk to the passengers.\n\nThe counsel relied on Section II of the Policy which relates to liability to third parties.\n\nThe clause relied on is extracted in full :\n\n\"Section II-Liability to Third Parties.\n\n1. The Company will indemnify the isured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of\n\n(a) death of or bodily injury to any person but except so far as is necessary to meet tlie requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.\"\n\nIt was submitted that the wording of clause 1 is wide enough to cover\n\nall risks includwg injuries to passengers.\n\nThe clause provides that the Company will indemnify the insured against all sums including c_laimant's osts an~ expenses which the insured shall become legally H liable. This accordmg to the learned counsel would include legal liability to pay for risk to passengers. The legal liability is restricted to\n\nclause 1 (a) which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injnry to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act. The Company shall not be liable where such death or injury arises out of and in the conrse of the employment of such person by the insured. Clause 1 and 1 (a) is not very clearly worded but the words \"except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939,\" would indicate that the liability is restricted to the liability arising out of the statutory requirements under section ~5. The second part of clause 1 (a) refers to the non-liability for injuries arising in the conrse of employment of such person. The meaning of this sub-clause becomes clear when we look to the other clauses of the insurance policy.\n\nThe policy also provides for insurance of risks which are not covered under section 95 of the Act by stipulating payment of extra premium. These clauses would themselves indicate that what was intended to be covered under clause 1 and 1 (a) is the risk required to be covered under section 95 of the Motor Vehicles Act.\n\nOn a construction of the insurance policy we. accept the pfoa of the insurance company that the policy had insured the owner only to the extent of Rs. 15,000 regarding the injury to the passenger.\n\nIn the result we hold that the liability of the insurance company is restricted to Rs. 15,000. There shall be a. decree in favour of the claimants appellants to the extent of Rs. 27,500 against the respondents out of which the liability of the insurance company will be restricted to Rs. 15,000. The appeal is allowed with the costs of the appellant which will be paid by the respondents in eqnal share.\n\nP.H.P.\n\nAppeal allowed. 7", "total_entities": 103, "entities": [{"text": "PUSHPABAI PURSHOTTAM UDESHI & ORS", "label": "PETITIONER", "start_char": 23, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "PUSHPABAI PURSHOTTAM UDESHI & ORS", "offset_not_found": false}}, {"text": "RANJIT GINNING & PRESSING CO, (P) LTD. & ANR", "label": "RESPONDENT", "start_char": 67, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "RANJIT GINNING & PRESSING CO, (P) LTD. & ANR", "offset_not_found": false}}, {"text": "M._ H. BEG, C.J.", "label": "JUDGE", "start_char": 131, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, J.", "label": "JUDGE", "start_char": 152, "end_char": 170, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Vechicles Act 1939", "label": "STATUTE", "start_char": 181, "end_char": 199, "source": "regex", "metadata": {}}, {"text": "S. 95, 110", "label": "PROVISION", "start_char": 200, "end_char": 210, "source": "regex", "metadata": {"linked_statute_text": "Vechicles Act 1939", "statute": "Vechicles Act 1939"}}, {"text": "Purshottam Udeshi", "label": "OTHER_PERSON", "start_char": 581, "end_char": 598, "source": "ner", "metadata": {"in_sentence": "Purshottam Udeshi was travelling in a car which was driven by 1..Janager of the first respondent company.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "Janager", "label": "WITNESS", "start_char": 646, "end_char": 653, "source": "ner", "metadata": {"in_sentence": "Purshottam Udeshi was travelling in a car which was driven by 1..Janager of the first respondent company."}}, {"text": "Nagpur", "label": "GPE", "start_char": 789, "end_char": 795, "source": "ner", "metadata": {"in_sentence": "The car dashed against a tree while proceeding fro°' Nagpur to Pandurna."}}, {"text": "Pandurna", "label": "GPE", "start_char": 799, "end_char": 807, "source": "ner", "metadata": {"in_sentence": "The car dashed against a tree while proceeding fro°' Nagpur to Pandurna."}}, {"text": "Purshottam", "label": "OTHER_PERSON", "start_char": 948, "end_char": 958, "source": "ner", "metadata": {"in_sentence": "The widow and children of Purshottam fiied a claim for compensation for a sum of Rs.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "section 110", "label": "PROVISION", "start_char": 1019, "end_char": 1030, "source": "regex", "metadata": {"linked_statute_text": "Vechicles Act 1939", "statute": "Vechicles Act 1939"}}, {"text": "Vehicles Act, 1939", "label": "STATUTE", "start_char": 1045, "end_char": 1063, "source": "regex", "metadata": {}}, {"text": "Pursbottam", "label": "OTHER_PERSON", "start_char": 1292, "end_char": 1302, "source": "ner", "metadata": {"in_sentence": "It \\\\as\n\nalso contended that Pursbottam was travelling in the said vehicle on his ov.n responsibility and for his own purpose absolutely gratis and not on behalf of or at the instance of respondent No.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "IIigh Court", "label": "COURT", "start_char": 2284, "end_char": 2295, "source": "ner", "metadata": {"in_sentence": "The IIigh Court did not decide the question as to whether the accident was due to rash and negligent driving or the quantum of compensation allowed by the Tribunal was -proper or not on the groundthat the respondent No."}}, {"text": "Vlho", "label": "OTHER_PERSON", "start_char": 4829, "end_char": 4833, "source": "ner", "metadata": {"in_sentence": "The normal rule is that it is for the plaintiff to prove negligence but in some icases considerable hardship is caused to the plaintiff as the true -cause of the C -atcident is not known to him but is solely within the knowledge of the defendant Vlho caused it."}}, {"text": "Pandhuma", "label": "GPE", "start_char": 5594, "end_char": 5602, "source": "ner", "metadata": {"in_sentence": "1, was proceeding from Nagpur to Pandhuma for purpose of delivering an amount of Rs."}}, {"text": "Purshottamto", "label": "OTHER_PERSON", "start_char": 6318, "end_char": 6330, "source": "ner", "metadata": {"in_sentence": "(3) The l\\Ianager permitted Purshottamto .have a ride in the car; Taking into account the-highposition of the driver\" who was the l\\fanager'of the com- -iPany it is reasonable to presume in the absence of any evidence to the contrary the l\\Ianager had authority to carry Purshottam or acting in .the course of his <>mployment.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "[1977] 3 S.C.R.\n\n6", "label": "CASE_CITATION", "start_char": 7531, "end_char": 7549, "source": "regex", "metadata": {}}, {"text": "Section 95(1)", "label": "PROVISION", "start_char": 7926, "end_char": 7939, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 8187, "end_char": 8196, "source": "regex", "metadata": {"statute": null}}, {"text": "Iotor Vehicles Act as amended by Act", "label": "STATUTE", "start_char": 8207, "end_char": 8243, "source": "regex", "metadata": {}}, {"text": "England", "label": "GPE", "start_char": 8327, "end_char": 8334, "source": "ner", "metadata": {"in_sentence": "Section 9 5 of the ~Iotor Vehicles Act as amended by Act 56 of 1969, is based on the Road Traffic Act of 1960 or\n\nhe earlier Act of 1930 in England."}}, {"text": "Section 95(a) and 95(b)(i)", "label": "PROVISION", "start_char": 8336, "end_char": 8362, "source": "regex", "metadata": {"linked_statute_text": "Iotor Vehicles Act as amended by Act", "statute": "Iotor Vehicles Act as amended by Act"}}, {"text": "Section 95", "label": "PROVISION", "start_char": 8522, "end_char": 8532, "source": "regex", "metadata": {"linked_statute_text": "Iotor Vehicles Act as amended by Act", "statute": "Iotor Vehicles Act as amended by Act"}}, {"text": "Section 95(b)", "label": "PROVISION", "start_char": 8840, "end_char": 8853, "source": "regex", "metadata": {"linked_statute_text": "Iotor Vehicles Act as amended by Act", "statute": "Iotor Vehicles Act as amended by Act"}}, {"text": "section 95", "label": "PROVISION", "start_char": 9004, "end_char": 9014, "source": "regex", "metadata": {"linked_statute_text": "Iotor Vehicles Act as amended by Act", "statute": "Iotor Vehicles Act as amended by Act"}}, {"text": "section 95", "label": "PROVISION", "start_char": 9204, "end_char": 9214, "source": "regex", "metadata": {"linked_statute_text": "Iotor Vehicles Act as amended by Act", "statute": "Iotor Vehicles Act as amended by Act"}}, {"text": "Clause 1", "label": "PROVISION", "start_char": 9343, "end_char": 9351, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 9359, "end_char": 9368, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 9694, "end_char": 9703, "source": "regex", "metadata": {"statute": null}}, {"text": "Vehicles Act, 1939", "label": "STATUTE", "start_char": 9720, "end_char": 9738, "source": "regex", "metadata": {}}, {"text": "section 95", "label": "PROVISION", "start_char": 9854, "end_char": 9864, "source": "regex", "metadata": {"linked_statute_text": "Vehicles Act, 1939", "statute": "Vehicles Act, 1939"}}, {"text": "Rameshwar Nath", "label": "PETITIONER", "start_char": 10220, "end_char": 10234, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath, for the appellants\n\nF U. R. Lalit and A. G. Ratnaparkhi, for respondent No."}}, {"text": "U. R. Lalit", "label": "LAWYER", "start_char": 10258, "end_char": 10269, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath, for the appellants\n\nF U. R. Lalit and A. G. Ratnaparkhi, for respondent No."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 10274, "end_char": 10291, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath, for the appellants\n\nF U. R. Lalit and A. G. Ratnaparkhi, for respondent No."}}, {"text": "Nau.nit Lal", "label": "LAWYER", "start_char": 10316, "end_char": 10327, "source": "ner", "metadata": {"in_sentence": "Nau.nit Lal and Miss Lizlita Kohli, for.respondent No.", "canonical_name": "Nau.nit Lal"}}, {"text": "Lizlita Kohli", "label": "LAWYER", "start_char": 10337, "end_char": 10350, "source": "ner", "metadata": {"in_sentence": "Nau.nit Lal and Miss Lizlita Kohli, for.respondent No."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 10419, "end_char": 10427, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.-This is an appeal by certificate under Article 133 Cl )(a) of the Constitution granted by the High Court of Madhya Pradesh."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 10471, "end_char": 10482, "source": "regex", "metadata": {"linked_statute_text": "Vehicles Act, 1939", "statute": "Vehicles Act, 1939"}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 10526, "end_char": 10554, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J.-This is an appeal by certificate under Article 133 Cl )(a) of the Constitution granted by the High Court of Madhya Pradesh."}}, {"text": "section 110", "label": "PROVISION", "start_char": 10637, "end_char": 10648, "source": "regex", "metadata": {"linked_statute_text": "Vehicles Act, 1939", "statute": "Vehicles Act, 1939"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 10656, "end_char": 10674, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Claims Tribunal, Jabalpur", "label": "COURT", "start_char": 10686, "end_char": 10711, "source": "ner", "metadata": {"in_sentence": "The appellants filed a claim for compensation of a sum of rupees one lakh under section 110 of the Motor Vehicles Act before the Claims Tribunal, Jabalpur."}}, {"text": "Purshottam Tulsidas Udeshi", "label": "OTHER_PERSON", "start_char": 10795, "end_char": 10821, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "18th December, 1960", "label": "DATE", "start_char": 10872, "end_char": 10891, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner."}}, {"text": "Madhavjibhai Mathuradas Ved", "label": "OTHER_PERSON", "start_char": 10946, "end_char": 10973, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner.", "canonical_name": "Madhavjibhai Mathuradas Ved"}}, {"text": "Ranjit Ginning and Pressing Co. Private Ltd.", "label": "ORG", "start_char": 11023, "end_char": 11067, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner."}}, {"text": "Chincholi- Vad", "label": "GPE", "start_char": 11122, "end_char": 11136, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner."}}, {"text": "Saoner", "label": "GPE", "start_char": 11161, "end_char": 11167, "source": "ner", "metadata": {"in_sentence": "2 to 8 are the children of one Purshottam Tulsidas Udeshi who met with his death in a motor car accident on 18th December, 1960 when he was travelling in the car which was driven by Madhavjibhai Mathuradas Ved, the Manager of the first opponent company, M/s. Ranjit Ginning and Pressing Co. Private Ltd., in a rash and negligent manner near a village called Chincholi- Vad which was 16 miles from Saoner."}}, {"text": "Pandhurna", "label": "GPE", "start_char": 11644, "end_char": 11653, "source": "ner", "metadata": {"in_sentence": "While admitting that the vehicle was proceeding from Nagpur on its way to Pandhurna for the purpose mentioned by the applicants they denied that the vehicle was driven in a rash and negligent manner and pleaded that the vehicle B was at the time of accident in perfectly sound conition."}}, {"text": "Motor Accidents Claims Tribunal, Jabalpur", "label": "COURT", "start_char": 12424, "end_char": 12465, "source": "ner", "metadata": {"in_sentence": "The Motor Accidents Claims Tribunal, Jabalpur, found that the accident of the motor vehicle was as a result of negligent driving of the vehicle by the Manager, Madhavjibhai Mathuradas Ved, the driver of the vehicle, It also found that the first respondent, the owner of D the company, is liable to pay compensation to the claimants on account of the negligence of their employee Madhavjibhai which caused the death of Purshottam Tulsidas Udeshi."}}, {"text": "Madhavjibhai", "label": "OTHER_PERSON", "start_char": 13524, "end_char": 13536, "source": "ner", "metadata": {"in_sentence": "The High Court did not decide the question as to whether the accident was due to the rash and negligent driving or the quantum of compensation to which the claimants were entitled to as it allowed the appeal by the owner on the ground that the owner cannot be held vicariously liable for the act of Madhavjibhai in taking Purshottam as a passenger as the said act was neither in the conrse of his F employment nor under any authority whatsoever and that there was no evidence that the owners of the vehicle were aware that Purshottam was being taken in the car as a passenger by their Manager, Madhavjibhai.", "canonical_name": "Madhav- A jibhai"}}, {"text": "Madhaviibhai Mathuradas Ved", "label": "OTHER_PERSON", "start_char": 14297, "end_char": 14324, "source": "ner", "metadata": {"in_sentence": "The qnestions that arise for consideration are whether on the facts of the case the claimants have established (1) that the accident was due to the rash and negligent driving of Madhaviibhai Mathuradas Ved, the Manaer of the company, and (2) whether the incident took place during the conrse of the employment of the driver.", "canonical_name": "Madhavjibhai Mathuradas Ved"}}, {"text": "Salmond", "label": "OTHER_PERSON", "start_char": 19922, "end_char": 19929, "source": "ner", "metadata": {"in_sentence": "Salmond on the Law of Torts (15th Ed.)"}}, {"text": "Madhav- A jibhai", "label": "OTHER_PERSON", "start_char": 24743, "end_char": 24759, "source": "ner", "metadata": {"in_sentence": "Before dealing with the right of Purshottam as a passenger, we will consider the question whether the\n\naccident took r>lace during the course of the employmenf of Madhav- A jibhai by the company.", "canonical_name": "Madhav- A jibhai"}}, {"text": "Denning", "label": "JUDGE", "start_char": 26080, "end_char": 26087, "source": "ner", "metadata": {"in_sentence": "The position was stated by Lord Justice Denning in Young v. Edward Box and Co. Ltd.(1).", "canonical_name": "Denning"}}, {"text": "Denning", "label": "JUDGE", "start_char": 27104, "end_char": 27111, "source": "ner", "metadata": {"in_sentence": "While two learned Judges held that the right to give the plaintiff leave to ride on the lorry was within the ostensible authority of the foreman, and F that the plaintiff was entitled to rely on that authority and in tha~ respect was a licensee, Lord Denning held that although the plaintiff, when on the lorry, was a trespasser, so far as the defendants were concerned, the driver was acting in the course of his employmen't in giving the plaintiff a lift and that was sufficient to make the defendants liable and that he did not base his judgment on the consent of \\he foreman.", "canonical_name": "Denning"}}, {"text": "PurshoHam", "label": "OTHER_PERSON", "start_char": 29669, "end_char": 29678, "source": "ner", "metadata": {"in_sentence": "Applying the test laid down there can be no difficulty in concluding tha; t the right to give leave to PurshoHam to ride in the car was within the ostensible authority of the Manager of the company who was driving the car and that the Manager was acting in the course of his employment in giving lift to Purshottam.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "(1966] 3 S.C.R. 527", "label": "CASE_CITATION", "start_char": 31040, "end_char": 31059, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 32800, "end_char": 32813, "source": "ner", "metadata": {"in_sentence": "The Supreme Court accepted the test and to that extent this may be taken as an extension of the doctrine of scope of employment."}}, {"text": "Sitaram Motilal Kalal", "label": "OTHER_PERSON", "start_char": 33039, "end_char": 33060, "source": "ner", "metadata": {"in_sentence": "Thus, on the facts as we have found that the accident took place during the course of employment the decision in Sitaram Motilal Kalal is of no help to the respondents."}}, {"text": "Purshotam", "label": "OTHER_PERSON", "start_char": 36637, "end_char": 36646, "source": "ner", "metadata": {"in_sentence": "Taking into account the high positiQn of the driver who was the Manager of the company, it is reasonable to presume, in the absence of any evidence to the contrary, that the Manager had authority to carry Purshotam and was acting in the course of his employment.", "canonical_name": "Purshottam Tulsidas Udeshi"}}, {"text": "Bankes", "label": "JUDGE", "start_char": 37786, "end_char": 37792, "source": "ner", "metadata": {"in_sentence": "Justice Bankes while agreeing with Justice Bray who A delivered the leading judgment expressed his view that the lower court had taken the view that an emergency had arisen which gave the defendant's servant implied authority to invite the plaintiff into the cart for the purpose of rendering assistance to the injured boy."}}, {"text": "Bray", "label": "JUDGE", "start_char": 37821, "end_char": 37825, "source": "ner", "metadata": {"in_sentence": "Justice Bankes while agreeing with Justice Bray who A delivered the leading judgment expressed his view that the lower court had taken the view that an emergency had arisen which gave the defendant's servant implied authority to invite the plaintiff into the cart for the purpose of rendering assistance to the injured boy."}}, {"text": "Crown Proceedings Act", "label": "STATUTE", "start_char": 41309, "end_char": 41330, "source": "regex", "metadata": {}}, {"text": "Goddard", "label": "JUDGE", "start_char": 43318, "end_char": 43325, "source": "ner", "metadata": {"in_sentence": "It appears Lord Goddard, Chief Justice, had gone further in Barker v. Levinson(<) and stated that \"the master is responsible for a criminal act of the servant if the ad is done within the general scope of the servant's employment.\""}}, {"text": "s. 25", "label": "PROVISION", "start_char": 46121, "end_char": 46126, "source": "regex", "metadata": {"statute": null}}, {"text": "Union Fire Accident & General Insurance Co. Ltd., Paris", "label": "ORG", "start_char": 46384, "end_char": 46439, "source": "ner", "metadata": {"in_sentence": "As the Union Fire Accident & General Insurance Co. Ltd., Paris, carrying on business at Nagpur bas been nationalised, though the second respondent before the Tribunal was represented by a counsel, we directed notice to the nationalised insurance company so that they would also be heard. ·"}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 46745, "end_char": 46755, "source": "ner", "metadata": {"in_sentence": "The nationalised insurance company has taken notice and appeared through Mr. Naunit Lal, advocate.", "canonical_name": "Nau.nit Lal"}}, {"text": "section 95", "label": "PROVISION", "start_char": 47695, "end_char": 47705, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1935", "label": "STATUTE", "start_char": 47713, "end_char": 47737, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Neither the Road Traffic Act, 1960", "label": "STATUTE", "start_char": 47828, "end_char": 47862, "source": "regex", "metadata": {}}, {"text": "section 203", "label": "PROVISION", "start_char": 48169, "end_char": 48180, "source": "regex", "metadata": {"linked_statute_text": "Neither the Road Traffic Act, 1960", "statute": "Neither the Road Traffic Act, 1960"}}, {"text": "provisions under the English Road Traffic Act, 1960", "label": "STATUTE", "start_char": 48597, "end_char": 48648, "source": "regex", "metadata": {}}, {"text": "section 95", "label": "PROVISION", "start_char": 48686, "end_char": 48696, "source": "regex", "metadata": {"linked_statute_text": "The provisions under the English Road Traffic Act, 1960", "statute": "The provisions under the English Road Traffic Act, 1960"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 48711, "end_char": 48729, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 203", "label": "PROVISION", "start_char": 49510, "end_char": 49521, "source": "regex", "metadata": {"linked_statute_text": "The provisions under the English Road Traffic Act, 1960", "statute": "The provisions under the English Road Traffic Act, 1960"}}, {"text": "this Act was repealed by Road Traffic Act, 1972", "label": "STATUTE", "start_char": 49532, "end_char": 49579, "source": "regex", "metadata": {}}, {"text": "section 145", "label": "PROVISION", "start_char": 49593, "end_char": 49604, "source": "regex", "metadata": {"linked_statute_text": "But this Act was repealed by Road Traffic Act, 1972", "statute": "But this Act was repealed by Road Traffic Act, 1972"}}, {"text": "Act the coming into force of the provisions of Act 1971", "label": "STATUTE", "start_char": 49613, "end_char": 49668, "source": "regex", "metadata": {}}, {"text": "December 1, 1972", "label": "DATE", "start_char": 49716, "end_char": 49732, "source": "ner", "metadata": {"in_sentence": "But this Act was repealed by Road Traffic Act, 1972 though under section 145 of 1972 Act the coming into force of the provisions of Act 1971 covering passenger liability was delayed under December 1, 1972. ("}}, {"text": "Bingham", "label": "OTHER_PERSON", "start_char": 49741, "end_char": 49748, "source": "ner", "metadata": {"in_sentence": "vide Bingham's Motor Claims Cases, 7th Ed.,"}}, {"text": "Section 95(a) and 95(b)(i)", "label": "PROVISION", "start_char": 49790, "end_char": 49816, "source": "regex", "metadata": {"linked_statute_text": "Act the coming into force of the provisions of Act 1971", "statute": "Act the coming into force of the provisions of Act 1971"}}, {"text": "Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960", "label": "STATUTE", "start_char": 49824, "end_char": 49903, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 95", "label": "PROVISION", "start_char": 49995, "end_char": 50005, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960", "statute": "the Motor Vehicles Act adopted the provisions of the English Road Traffic Act, 1960"}}, {"text": "section 95", "label": "PROVISION", "start_char": 51101, "end_char": 51111, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 51366, "end_char": 51384, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 95", "label": "PROVISION", "start_char": 51484, "end_char": 51494, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 95", "label": "PROVISION", "start_char": 52842, "end_char": 52852, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 52860, "end_char": 52884, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "clause 1", "label": "PROVISION", "start_char": 53065, "end_char": 53073, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "clause 1", "label": "PROVISION", "start_char": 53449, "end_char": 53457, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "section 95", "label": "PROVISION", "start_char": 53655, "end_char": 53665, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 53673, "end_char": 53691, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Clause 1", "label": "PROVISION", "start_char": 53833, "end_char": 53841, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "Section 95", "label": "PROVISION", "start_char": 53952, "end_char": 53962, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 53970, "end_char": 53994, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "clause 1", "label": "PROVISION", "start_char": 54141, "end_char": 54149, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "section 95", "label": "PROVISION", "start_char": 54428, "end_char": 54438, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "clause 1", "label": "PROVISION", "start_char": 54574, "end_char": 54582, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "section 95", "label": "PROVISION", "start_char": 54634, "end_char": 54644, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 54652, "end_char": 54670, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1977_3_389_392_EN", "year": 1977, "text": "M. V. KURIAKOSE\n\nTHE STATE OF KERALA AND OTHERS\n\nMarch 25, 1977\n\n38 9\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nConstitution of India, Article 16(1), whether attracted by violauon of ights claimed under agreenient or award-Article 32, whether re1nedy extends to the violation of such righ!s.\n\nThe appellant was a mechanic in the service of the erstwhile Transport .Department of the Kerala State. He thereafter became an employee of the J(erala State Transport Corporation when the same was set up in 1-farch, 1965.\n\nJn 1968, there wa\" a settlement between the Corporation and its employees\n\nproviding that a 'trade test' would have to be passed for promotion to posts-in C the higher grade while \"grade promotions\" \\vould take place upto the post of Assistant Cbargeman.\n\nSubsequently, in a dispute referred to arbitration, the A\\vard provided that category-wise seniority, together with trade-test should .determine the promotions. The petitioner alleged that thereafter, the Corpora- , tion and the workmen agreed to promotions in his wing by seniority alone and consequently, the petitioner and some others were promoted. Their promotions 1Were assailed as violative of the award, and were set aside by the lligh Court.\n\nThe petitioner filed a writ petitiOn under Art. 32 of the Constitution clain1ing D that his fundamental right under Art. 16(,1) had been violated.\n\nDismissing the writ petition the Court,\n\n1 HELD : The rights of the petitioner under an agreement or an award, if he had any such right, could not be identified with rights under Article 16 (I) .of the Constitution. The result of the quashing of the promotion order relat- .ing to a whole category of employees in the position of the petitioner was that .all similarly situated shared the same fate .and alL those in the petitioner's cate- E .gory and with his qualifications had been pla<:ed on an equal footing.\n\nThe petitioner's remedy when he claims a benefit under an agreement or an award does not lie by means of a petition under Art. 32 of the Constitution. [391 G-H,\n\n392 A-C] -- , .\n\nORIGINAL JURISDICTION : Writ Petition No .. 90 of 1976.\n\n(Under Article 32 of the Constitution of India).\n\nM. K. Ramamurthi and J. Ramamurthi, for the appellant.\n\nT. S. Krishnamoorthy Iyer and N. Sudhakaran, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J. The petitioner alleges infringement of his rights under Articles 16 (1) and 31 ( 1) of the Constitution.\n\nHe joined the service of the erstwhile Transport Department of the State of Kerala as a Cleaner in the Mechanical Wing in 1949. He was promoted to the post of Helper and then Assistant Mechanic, and, finally, to that of a\n\nMechnic.\n\nOn 15th March, 1965, the Kerala State Transport Corporation was set_ up under s. 3 of the Road Transport Corporations Act, 1950 (hereinafter referred to as \"the Act\") so that he became a servant of the Corporation.\n\nHe alleges that, as the Kera!a State is admirJstering the Corporation and appoints its Chairman and Members under section 5 of the Act, he is entitled to the protection given\n\n• -)\n\nA by the State fo its servants.\n\nAccording to him, the Corporation i's really an arm or an agent of the State.\n\nWe need not, however, consider the .correctness of this proposition as the petitioner has not, in our opinion, succeeded in showing how any of his rights under Article 16 ( 1) of the Constitution, and, even less, how any right of his under Article 31 of the Constitution could have been infringed, assuming that he is a servant of the State.\n\nIt appears that on 10th July, 1968 there was a settlement in a dispute between the Corporation and its employees.\n\nUnder this settlement, a trade test was to be conducted after inviting applications from lower grades of what are known as the \"mechanical line\", that is to say, Assistant Electricians, Assistant Tyre Inspectors, Stitchers, Solutioners etc. for filling up posts in the higher grades.\n\nIt was mentioned there that \"grade promotions\" will take place up to the post of Assistant Chargeman, presumably without a \"trade test\" but, even under this settlement, appointment to the post of chargeman could only take place on the basis of results in \"Trade Test\" subject to seniority.\n\nIndeed, it was stated there that Assistant Chargeman of more than three years service will be entitled to take part in the trade test.\n\nThe \"Trade Test\" was apparently a test of competence in technical knowledge for the work to be done in the mechanical line.\n\nAccording to the petitioner, the settlement was operative until an industrial dispute arose.\n\nThat dispute was referred to arbitration under section IOA of the Industrial Disputes Act (14 of 1947) on 6th April 1971.\n\nThe subject matter of the dispute was widely stated so as to embrace \"all questions relating to\" wage structure, the ratio between the higher and lower grades, the nature of duties and responsibilities attached to each category, and methods to be adopted for increasing productivity so as to contribute to the maximum efficiency and economic advantages from the working of the Corporation.\n\nAmong the matters decided in the Award given was that categorywise seniority, together with Trade Test, should determine the promotions to higher grades.\n\nThe Award dated 31st December 1972 was duly notified.\n\nIt is true that conditions of service were not sepcifically mentioned among subjects referred to arbitration.\n\nBut, promotions based on passing appropriate tests would certainly affect productivity.\n\nMoreover, nobody took steps to assail the Award on any ground whatsoever.\n\nThe petitioner alleges that the Corporation and the Workmen subsequently agreed to promotions in the mechanical wing on the basis of seniority alone as had been done in the past under the settlement. To prove such an agreement, the following passage was relied upon from \"the minutes of discussion\" held in the presence of the Minister (Transport and Electricity) on 20th November, 1973, with the representatives of the Unions of the Mechanical Wing : \"It has, therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past.\n\nThe Minister, however, pointed out that comprehensive schemes of test, with due importance on the practical side, will be\n\nM. V. KURIAKOSE v. KERALA (Beg, C.J.) 391\n\nintroduced for all categories of employees soon.\n\nThe Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently.\" This document, signed by the General Manager of the Corporation., contains only minutes of a discussion between the Minister for Transport and Electricity and the. representatives of the Unions.\n\nIt is difficult to see bow it could modify the terms of the Award duly made which had become binding and enforceable under s. 17 A of the Industrial Disputes Ac; t.\n\nThe Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under s. 19 ( 1) of the Industrial Disputes Act.\n\nThe petitioner relies upon his promotion to the post of \"Leading Hand\" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement. But, on 4th December 197 5 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation. rt appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary.\n\nSection 18(3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute.\n\nIt is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the 'petitioner together with others on the ground that the Award had been violated by such promotions.\n\nNevertheless, the petitioner would be deemed to be duly represented by his Union on such a question.\n\nHe did not take any steps to assail or to get the judgment and order of the High Court set aside.\n\nThe grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him, so that he was reverted, are : firstly, that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement, but contained some observations which had been misinterpreted by the High Court; secondly, that the High Court had misunderstood the. Award inasmuch as it did not contain any direction that a \"Trade Test\" should be imposed upon those who belonged to the petitioner's category before their promotion; and, thirdly, that he was not a party to the proceedings in the High Court which resulted in the quashing of the document by which he was promoted so that the High Court's order is not binding upon him.\n\nWe are not able to agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Court's order shows that not even a counter-affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case, the rights of the petitioner under an agreement or an Award, if he had any such right, could not be identified with rights under Article 16 ( 1) of the Constitution.\n\nThe result of the quashing of the promotion order relating to a whole category of employees in the position of the petitioner was that all similarly situated shared the\n\nsame fate.\n\nAll of them had to pass the Trade Test to become entitled to promotion.\n\nIn this respect they were treated alike.\n\nIt could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the petitioner had.\n\nIt was immaterial that somebody else, in another category altogether, was not required to pass the trade test which was essential, on the view taken by the High Court, before those in the petitioner's category could claim promotion.\n\nAll those in the petitioner's category and with his qnalifications had been placed on an equal footing.\n\nHence, whatever else might have been contravened, it was certainly not a fundamental right under Article 16 (I) of the Constitution which could be held to have been violated. And, no attempt was even made to show how a right of the petitioner under Article 31 ( l) of the Constitution was affected.\n\nThe petitioner's remedy when he claims a benefit under an agreement or an Award does not lie by means of a petition under Article 32 of the Constitution.\n\nThis article is reserved exclusively for the enforcement of a fundamental right.\n\nAs the petitioner has been unable to disclose how a fnndamental right has been violated, this petition must be and is hereby dismissed.\n\nWe make no order as to costs.\n\nM. R.\n\nPetition dismissed.", "total_entities": 46, "entities": [{"text": "M. V. KURIAKOSE", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "M. V. KURIAKOSE", "offset_not_found": false}}, {"text": "THE STATE OF KERALA AND OTHERS", "label": "RESPONDENT", "start_char": 17, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF KERALA AND OTHERS", "offset_not_found": false}}, {"text": "March 25, 1977", "label": "DATE", "start_char": 49, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "M. V. KURIAKOSE\n\nTHE STATE OF KERALA AND OTHERS\n\nMarch 25, 1977\n\n38 9\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 89, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 127, "end_char": 148, "source": "regex", "metadata": {}}, {"text": "Article 16(1)", "label": "PROVISION", "start_char": 150, "end_char": 163, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 238, "end_char": 248, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1283, "end_char": 1290, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16(,1)", "label": "PROVISION", "start_char": 1356, "end_char": 1367, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 1567, "end_char": 1577, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2025, "end_char": 2032, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 2146, "end_char": 2156, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2164, "end_char": 2185, "source": "regex", "metadata": {}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 2189, "end_char": 2205, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and J. Ramamurthi, for the appellant."}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 2210, "end_char": 2223, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and J. Ramamurthi, for the appellant."}}, {"text": "T. S. Krishnamoorthy Iyer", "label": "LAWYER", "start_char": 2245, "end_char": 2270, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer and N. Sudhakaran, for respondent No."}}, {"text": "N. Sudhakaran", "label": "LAWYER", "start_char": 2275, "end_char": 2288, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer and N. Sudhakaran, for respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2357, "end_char": 2360, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J. The petitioner alleges infringement of his rights under Articles 16 (1) and 31 ( 1) of the Constitution."}}, {"text": "Articles 16", "label": "PROVISION", "start_char": 2423, "end_char": 2434, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "15th March, 1965", "label": "DATE", "start_char": 2709, "end_char": 2725, "source": "ner", "metadata": {"in_sentence": "On 15th March, 1965, the Kerala State Transport Corporation was set_ up under s. 3 of the Road Transport Corporations Act, 1950 (hereinafter referred to as \"the Act\") so that he became a servant of the Corporation."}}, {"text": "Kerala State Transport Corporation", "label": "ORG", "start_char": 2731, "end_char": 2765, "source": "ner", "metadata": {"in_sentence": "On 15th March, 1965, the Kerala State Transport Corporation was set_ up under s. 3 of the Road Transport Corporations Act, 1950 (hereinafter referred to as \"the Act\") so that he became a servant of the Corporation."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2784, "end_char": 2788, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Road Transport Corporations Act, 1950", "label": "STATUTE", "start_char": 2796, "end_char": 2833, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 3036, "end_char": 3045, "source": "regex", "metadata": {"linked_statute_text": "the Road Transport Corporations Act, 1950", "statute": "the Road Transport Corporations Act, 1950"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 3376, "end_char": 3386, "source": "regex", "metadata": {"linked_statute_text": "the Road Transport Corporations Act, 1950", "statute": "the Road Transport Corporations Act, 1950"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 3456, "end_char": 3466, "source": "regex", "metadata": {"linked_statute_text": "the Road Transport Corporations Act, 1950", "statute": "the Road Transport Corporations Act, 1950"}}, {"text": "10th July, 1968", "label": "DATE", "start_char": 3578, "end_char": 3593, "source": "ner", "metadata": {"in_sentence": "It appears that on 10th July, 1968 there was a settlement in a dispute between the Corporation and its employees."}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 4671, "end_char": 4694, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "6th April 1971", "label": "DATE", "start_char": 4711, "end_char": 4725, "source": "ner", "metadata": {"in_sentence": "That dispute was referred to arbitration under section IOA of the Industrial Disputes Act (14 of 1947) on 6th April 1971."}}, {"text": "31st December 1972", "label": "DATE", "start_char": 5290, "end_char": 5308, "source": "ner", "metadata": {"in_sentence": "The Award dated 31st December 1972 was duly notified."}}, {"text": "20th November, 1973", "label": "DATE", "start_char": 5971, "end_char": 5990, "source": "ner", "metadata": {"in_sentence": "To prove such an agreement, the following passage was relied upon from \"the minutes of discussion\" held in the presence of the Minister (Transport and Electricity) on 20th November, 1973, with the representatives of the Unions of the Mechanical Wing : \"It has, therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 6909, "end_char": 6914, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 7107, "end_char": 7112, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 7125, "end_char": 7148, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "30th November, 1973", "label": "DATE", "start_char": 7244, "end_char": 7263, "source": "ner", "metadata": {"in_sentence": "The petitioner relies upon his promotion to the post of \"Leading Hand\" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement."}}, {"text": "4th December 197", "label": "DATE", "start_char": 7317, "end_char": 7333, "source": "ner", "metadata": {"in_sentence": "But, on 4th December 197 5 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation."}}, {"text": "Krishna Kutty", "label": "OTHER_PERSON", "start_char": 7540, "end_char": 7553, "source": "ner", "metadata": {"in_sentence": "But, on 4th December 197 5 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation."}}, {"text": "Kerala State Transport Mechanical Workers Union", "label": "ORG", "start_char": 7638, "end_char": 7685, "source": "ner", "metadata": {"in_sentence": "rt appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary."}}, {"text": "Section 18(3)", "label": "PROVISION", "start_char": 7725, "end_char": 7738, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 7746, "end_char": 7769, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 16", "label": "PROVISION", "start_char": 9524, "end_char": 9534, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 10472, "end_char": 10482, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 10624, "end_char": 10634, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 10797, "end_char": 10807, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1977_3_38_42_EN", "year": 1977, "text": "CHANDER BHAN HARBHAJAN LAL\n\nSTATE OF PUNJAB\n\nFebruary 22, 1977\n\n[M. H. BEG, C.J. AND P. S. KAILASAM, J.]\n\nArbitration Act, s. 8, lvhether applicable when arbitration agrcernent stipulates appointment of Settlen1ent Con1n1ittee by 011e of the parties-On unilateral abolition of Settle111ent Conin1ittee. whether s. S t'JlJJlicahle.\n\nThe parties entered into an agreement for the 'execution of son1e construction work. An arbitration clause in the agreelnent stipulated that if disputes arose, the matter would be referred to a Settlen1ent Committee to be :1ppointed by the State Government.\n\nA dispute arose, and a Settlen1cnt Con1mittee \\\\'as duly constituted, but was unilaterally abolished by the respondent before it concluded its work, Subsequently the respondent appointed another Settlement Committee whose award was set aside by the Civil Court on the ground that it was made even before the expiry of tlte time given by the Co.mmitte~ to the appellant.\n\nThe Committee thereafter ceased to exist, an<l the respondent applied to the trial court for appointing an arbitrator u/s. 8(2) of the Arbitrrition Act.\n\nThe appellant opposed the same on two grounds.\n\nFirstly that by unilaterally abolishing the first Settlement Committee, the State Government had put an end to the arbitration clause, and no other committee could be appointed nnd secondly, that s. 8 was not applica-ble. The appellants' objections were rejected by the trial court: and later by the High Court in revision.\n\nIn appeal before this Court, the respondent also argued that s. 8 would not apply when one riarty could appoint a Settlement Committee without reference to the other party. ·\n\nDismissing the appeal, the Court,\n\nHELD : ( 1) The \\Vording of s. 8, that any party may serve the other parties with a written notice to concur in the a_ppointn1cnt or appointments, or in supplying the vacancy, will include not o; erving other parties in cases in \\\\'hich the service on the other partv is not conten1plated.\n\nThe ection cannct be read as not being applicable where the agreen1ent provides or the nomi:-iation of the Committee by one of the parties, for the section itself says that the party may serve the other parties. [41F-G]\n\n(2) The Government could have appointed a Comn1ittee by itself \\vithout coming to court. There is no indication in the cJausc that when once the Committee was unilaterally dissolved no new Committee could be formed.\n\nVVhen the second Committee ceased to function, it became \"incapable of acting'' and, therefore, it was within the competency of the Court to proceed to appoint a new Committee. [41E, F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2070/68.\n\nG Appeal i:, y Special Leave from the Judgment and Order dated 16-2-1968 of the Punjab & Haryana High Court in Civil Revision Case No. 107 /66 and\n\nCivil Appeal No. 1784/69.\n\nAppeal by Special Leave from the Judgment and Order dated 25-11-1968 of the Punjab & Haryana High Court in Civil Revision H No. 339 of 1967.\n\nG. L. Sanghi and K. J. John for the Appellants.\n\nS. N. Anand and R. N. Sachthey for the Respondents.\n\n•.'\"'\n\n• '\n\nCHANDER BHAN v. PUNJAB (Kai/asam, J.) 39\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.-Civil Appeal No. 2070 of 1963 is by special leave by the appellants against the judgment of the Punjab and Haryana High Court dismissing the appellant's petition for revising an order passed by the Subordinate Judge, Ambala City, allowing an application by the State, respondent, and appointing the Arbitration Committee. '!he appellants entered into an agreement with the Public W crks Department, Punjab State, for execution of certain constniction works in August, 1952. They entered into an agreement, Ex.\n\nA-l.\n\nThe agreement provided an arbitration clause in the following ter1ns :-\n\n111 the matt.er of dispute, the case shall be referred to the cilicment Committee consisting of a Superintending Engineer, an officer of the Finance Department of the rank of at least Deputy Secretary and an Accounts Officer, all to be nominated by the Government for arbitration whose decision w1it be final.\" Disputes arose between the parties and the State of Punjab appointed a Settler,, ent Committee by notification dated 31st January, 1958.\n\nThe Settlement Committee. entered upon the arbitration but before the Arbitration Committee concluded its work the State Government unilaterally abclished the Committee by an order dated 27th March, 1962.\n\nSubsequently by a notification dated 18th May, 1962, the State Ciovernn1ent constiuted a Com1nittee giving the nan1es of three officers with headquarters at Nangal.\n\nThe new Committee took up the dispute as well as a claim made by the Government and issued notice to the parties.\n\nThe new Settlement Committee passed an award on 25th July, 1962.\n\nThe appellants challenged the v; i!idity of the award in the Civil Court.\n\nThe Civil Court set aside the second Settlement Committee's award Oil the ground that it was made by the Committee even before the expiry of thc'time given by it to the appellants.\n\nThereafter, the second Settlement Committee also ceased to function.\n\nTbc State Government gave notice to the appellant umjcr section 8(1) of the Arbitration Act to concur in the appointment of a fresh Settlement Committee to arbitrate the matter between the parties.\n\nThe appellants did not respond to the notice.\n\nThe State Government made an application to the trial court for appointment of an arbitrator under section 3(2) of the Arbitration Act.\n\nThe appellants ntised two objections, -namely that section 8 was not applicable to the case and that by abolition of the first Settlement Committee the .Stale Government had put an end. to the arbitration clause agreed to between the parties by the agreement at Ex. A-1.\n\nThe learned Judge rejected both the grounds and held that after the State Government withdrew the personnel of the first Settlement Committee they became incapable of acting and therefore the court was entitled to :1ct under section 8(1) (b) of the Act.\n\nOn the second point it held that the terms of the arbitration clause in the agreement Ex. A-1 diLi not justify reading into it the condition that the intention of the parties was that the vacancies in the Setth<ment Committee for arbitration were not to be filled.\n\n4-240SCI/77\n\nIn the Revision Application before the High Court the appellants in effect raised the, same contentions though in a slightly different form.\n\nThe High Court agreed with the view of the trial Judge that when once the Government abolished the first Settlement Committee it became incapable of acting and section 8 (1) (b) became applicable. It also agreed with the trial court and found that there was nothing in the terms of the arbitration clause in Ex. A-1 to justify the contention that when once a Settlement Committee was appointed the power under the clause is exhausted.\n\nThe High Court held that the trial court was ji..stified in proceeding under sub-section (1) of section 8 in asking the appellant to give the names for consideration of the court for the reconstitution of the Committee and as the appe.Jlants did not give the names the trial court was justified in accepting the names given by the State Government.\n\nIn the <lppeal before us the same contentions were raised.\n\nIt was submitted that when one of the parties to the arbitration agreement unilaterally disabled the Settlement Committee from functioning the court wiu not assist that party by holding that the Committee became incapable of acting.\n\nIt was contended that the provisions of section 8 of the Arbitration Act will not be applicable when one of the parties could appoint a Settlement Committee by itself without reference to the other party.\n\nThe learned counsel for the appellant also contended that when the first Settlement Committee ceased to exist by the government unilaterally pntting an end to it, the arbitration clause worked itself out and no other conunittce could be appointed The relevant clause in the agreement though given earlier is again extracted.\n\n\"In the matter of dispute, the case shall be referred to the Seltlement Committee consisting of a Superintending Engineer, an officer of the Finance Department of the rank of at least Deputy Secretary and an Accounts Officer, all to be F noillinalecl by the Government for arbitration whose decision will be final\"\n\nThe clause is an amendment to the original condition No. 5. The clause furtl1er provided tltat the agreement is supplemental to the original agreement and save as varied as hereinbefore provided the said agreement and all the terms and conditions thereof shall contimre to be binding and in full force and effect. The submission of the learned counsel for the appellant is that the clause referred only to the matter already in dispute and to a settlement committee which had been alrea'lY appointed.\n\nReliance was placed on tJte words underlined in the clause \"Ill the matter of dispute\", and \"referred to the Settlement Committee\".\n\nThis plea cannot be accepted for in the Ja:ter part of the condition it is made clear by the words \"all to be nominated by the Government for arbitration whose decision will be fin;; I.\" \"To be nominated\" contemplates a future appointment. But we do not think that this makes any difference for there could be no doubt that the condition enables the Government to appoint three persons holding the ranks specified in the condition as the Settlement\n\n-'~·\n\nCHANDER BHAN v. PUNJAB (Kailasam, !.) 41\n\nCommittee.\n\nThere is no indication at all that when once the Com- A mittee was dissolved no new committee could be appointed.\n\nIn fact it has to be noted that after the first Settlement Committee was dissolved by the unilateral act of the Government a second Committee came into existence and gave an award which was set aside by the Civil Court.\n\nAfter the award was set aside the second Committee also ceased to function.\n\nThere is no material on record to show that the appellants objected to the constitution of the second Committee B on the ground that the condition did not provide for the, appointment of a second Settlement Committee.\n\nThere is no reason alleged as to why the second Settlement Committee ceased to function.\n\nIf the second Committee was also not terminated by the action of the Government the contention of the appellants that a unilateral act would put the case outside the purview of section 8 of the Arbitration Act would not be available.\n\nOn a careful reading of the condition relating to arbitration, we agree with the High Court as well as the trial court that there is no bar to the Government appointing a fresh Committee. for going into the dispute consisting of three officers as stipulated in the condition.\n\nAs the appellant would not reply to the letter of the Government seek- D ing to nominate a Settlement Committee the Government moved the court for ai; pointment of the Committee.\n\nThe trial court gave an option to the appellant to furnish names but as he did not furnish the names trial court accepted the names suggested by the Government.\n\nOn our finding that the Government was entitled to appoint a Committee under the new agreement the Government could have very well appointed a committee by itself without coming to court.\n\nE But may be by way of abundant caution the Government came to court and tile court has appointed a committee as suggested by the State.\n\nWe are equally clear that under section 8, the Court is entitled to act and appoint a committee.\n\nAs already found by us when the second Settlement Committee ceased to function the Committee\n\nbeame \"incapable of acting\" and therefore it was within the competency of the court to proceed to appoint a new committee.\n\nEqually F ,; ntenable is the contention that section 8 is not applicable to cases where the condition stipulates the appointment of a Settlement Committee by o,1c of the parties.\n\nThis submission was made relying on the wording of the section that any party may serve the other parties •• or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy. ,:.. .\n\nThis part of the section no doubt contemplates two parties but the G section cannot be read as not being applicable where the agreement\n\n~ provides for the nomination of the committee by one of the pames for the section itself says that the party may serve the other parties, \"May serve the other parties\" will include not serving other parties in cases in which the service on the other party is not contemplated.\n\nIn the circumstances we are satisfied that t'1e order of the High Court is prcper and cannot be interfered with.\n\nThe appeal is dismissed.\n\nIhe parties will bear their own costs.\n\nCivil Appeal No. 1734 of 1969\n\nThis appeal is similar to the one which we have just now disposed of i.e. C.A.No. 2070 of 1968.\n\nThe High Court also dismissed the {>etition .under appeal on the ground that the facts of the case. are similar to the one in Civil Revision Petition No. 107 of 1966 out of which C.A. No. J:J70 of 1968 arose and dismissed the petition on the same grounds.\n\nIn this appeal before. us the learned counsel for the appellant adopted the arguments advanced by the counsel in C.A. No. 2070 of 1968 and did not wish to add anything further.\n\nFor the reasons stated in C.A.No. 2070 of 1968 we dismiss this appeal also.\n\nNo order as to costs.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 29, "entities": [{"text": "CHANDER BHAN HARBHAJAN LAL", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "CHANDER BHAN HARBHAJAN LAL", "offset_not_found": false}}, {"text": "February 22, 1977", "label": "DATE", "start_char": 45, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "CHANDER BHAN HARBHAJAN LAL\n\nSTATE OF PUNJAB\n\nFebruary 22, 1977\n\n[M. H. BEG, C.J. AND P. S. KAILASAM, J.]\n\nArbitration Act, s. 8, lvhether applicable when arbitration agrcernent stipulates appointment of Settlen1ent Con1n1ittee by 011e of the parties-On unilateral abolition of Settle111ent Conin1ittee."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 65, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, J.", "label": "JUDGE", "start_char": 85, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "s. 8", "label": "PROVISION", "start_char": 123, "end_char": 127, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 1082, "end_char": 1089, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1360, "end_char": 1364, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1550, "end_char": 1554, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1728, "end_char": 1732, "source": "regex", "metadata": {"statute": null}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 2991, "end_char": 3003, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and K. J. John for the Appellants."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 3008, "end_char": 3018, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and K. J. John for the Appellants."}}, {"text": "S. N. Anand", "label": "LAWYER", "start_char": 3040, "end_char": 3051, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and R. N. Sachthey for the Respondents."}}, {"text": "N. Sachthey", "label": "LAWYER", "start_char": 3059, "end_char": 3070, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and R. N. Sachthey for the Respondents."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 3191, "end_char": 3199, "source": "ner", "metadata": {"in_sentence": "•.'\"'\n\n• '\n\nCHANDER BHAN v. PUNJAB (Kai/asam, J.) 39\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.-Civil Appeal No."}}, {"text": "Public W crks Department, Punjab State", "label": "ORG", "start_char": 3577, "end_char": 3615, "source": "ner", "metadata": {"in_sentence": "he appellants entered into an agreement with the Public W crks Department, Punjab State, for execution of certain constniction works in August, 1952."}}, {"text": "State of Punjab", "label": "ORG", "start_char": 4148, "end_char": 4163, "source": "ner", "metadata": {"in_sentence": "Disputes arose between the parties and the State of Punjab appointed a Settler,, ent Committee by notification dated 31st January, 1958."}}, {"text": "27th March, 1962", "label": "DATE", "start_char": 4430, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "entered upon the arbitration but before the Arbitration Committee concluded its work the State Government unilaterally abclished the Committee by an order dated 27th March, 1962."}}, {"text": "Nangal", "label": "GPE", "start_char": 4606, "end_char": 4612, "source": "ner", "metadata": {"in_sentence": "Subsequently by a notification dated 18th May, 1962, the State Ciovernn1ent constiuted a Com1nittee giving the nan1es of three officers with headquarters at Nangal."}}, {"text": "25th July, 1962", "label": "DATE", "start_char": 4778, "end_char": 4793, "source": "ner", "metadata": {"in_sentence": "The new Settlement Committee passed an award on 25th July, 1962."}}, {"text": "section 8(1)", "label": "PROVISION", "start_char": 5179, "end_char": 5191, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 5468, "end_char": 5480, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 5557, "end_char": 5566, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8(1)", "label": "PROVISION", "start_char": 6003, "end_char": 6015, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 6614, "end_char": 6623, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 6986, "end_char": 6995, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 7574, "end_char": 7583, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 10426, "end_char": 10435, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 11462, "end_char": 11471, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 11791, "end_char": 11800, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_393_399_EN", "year": 1977, "text": "SHAIK ABDUL AZEEZ\n\nSTATE OF KARNATAKA\n\nMarch 28, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.]\n\nPencd Code (Act 45 of 1860), 1860, section 303-Death Sentence for murder by life convici-Whether a person sent, enced to imprisonment for life and later released by the Government by remission of sentence uls. 401 of the Cr. P.C., .1898 (1973 Code, s. 432) continues to \"being under sentence of ifnprisonnient jor life\" for the purpose of s. 303 I. P. C.-Cri1ninal Procedure Code, 1898, sec. 401 (1973 Code, section 432)-Scope of.\n\nSection 303 I.P.C. lays down that \"whoever being under sentence of im- , prisonment for life commits murder shall be punislied with death\". The C appellant, for the offence of murder committed on December 3, 1959, had been convicted on July 26, 1961, by the High Court of Mysore under s. 302 I.P.C. and sentenced to imprisonment for life in appeal by the State against his acquittal . . The State Government, in exercise of its power under s. 402 Cr. P. C. condi- .tionally remitted his sentence on February 8, 1972 and he was, therefore, con- .ditionally released from jail on February 8, 1972. The two conditions of the .remission were that during the unexpired period of his sentence conditionally .remitted (i) he will not commit any offence punishable by any law in Mysore D .and (ii) he will not in any way associate with persons known to be of bad .character or_ lead a dissolute or immoral life. Even before the expiry of the .first year of his release, the appellant got himself involved on January 27, 1973~ .in another murder charge. He was convicted under s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302\n\nJ. P. C. was confirmed on November 19, 1975.\n\nIt held that s. 303 I. P. C. .was applicable as this was,'a case of conditional remission under s. 401 Cr P. c..\n\nE .and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. This Court while granting the ;:; pecial leave- Jimited it to the question of applicability of s. 303 I. P. C. and the sentence.\n\nAliowing the appeal parly and modifying the sentence of death to that of .life imprisonment. the Court,\n\n, HELD : (1) An accused cannot be urider a sentence of imprisonment for life at the time of commission of the second murder unlesshe is actually under- F .going such a sentence or there is legally extant judicially a final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under s. 401 Cr. P.C. [398 H, 399-AJ\n\n(2) The earlier sentence of imprisonment for life became final and inexorable so far as the judicial process was concerned. It is only when such a sentence is \"operative and executable\" that s. 303 I.P.C. a attracted. [395-C]\n\nDi/ip Kumar Sharma & Ors. State of Madhya Prades_h [1976] (2) SCR 289, referred to.\n\n(3 ection 303 J.P.C. is applicable only to an accused who on the date of .comm1ss1on of the second offence of murder had earlier committed a murder\n\n.or. hich his conviction and sentence of imprisonment for life were beyond 1ud1c1al controversy and operative.\n\n[399-A]\n\n(4) Unlike in the. case of s. 75. I.P.~., s. 303 I.P.C. does not ccnternplate a mere onhanced pumshment for a convict with a past criminal history for the same offenc~ Section 303 I.P.C. creates a most aggregated form of offence whe:n commttted~ by a person undet sentence of in1prisonment for life to be punished only with death, the maximum penalty under the law.\n\nThe tn1e effec~\n\nSUPREME COURT REPORTS .\n\n[1977] 3 S.C.R.\n\n. of s. 303, I.P.C. is that if the accused was continuing to be under the sentence of imprisonment for life on the day of the second murder the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative , sentence. The only sentence the court has power and is obliged to impose and no other is the senence of death.\n\n[399 B~C]\n\n(5) A person must be actually and irrevocably the lifer beyond the pale of , judicial controversy at the. time of commission of the second offence of murder .to be vitiated with a penalty of death under s. 303 J.P.C.\n\nIf the sentence of a convict had already been remitted at the time of commission of the second murder, he would cease to be an actual lifer to come within the lethal clamp of s. 303 I.P.C. [399-C]\n\n(6) For the purpose of s. 303 l.P.C. there can be no warrant for introducjng a legal fiction of being deemed to be under a sentence of imprisonment for .life.\n\nIn the instant case the appellant is not liable for conviction under s. 303\n\nI.P.C. [399-D]\n\nSohan Singh v. State [1965] (1) !LR 181 Punjab 201, over-ruled.\n\n(7) Section 401 (3) makes it clear that for the purpose of s. 303 J.P.C., it does not make any difference whether the remission under s. 401 Cr. P.C. is witp_ or \\Yithout conditions. [396-F]\n\nPo Kun v. King AIR 1939 Rangoon 124; Sagan Singh v. State [196.l] !LR 181 Punjab 201; Gulam Mohan1mad Wali Mohamn1ad v. E1nperor AIR 1943 Sind 114 and Sarai Chandra Rabha & Ors. v. Kagendranath & Ors. [1961](2) SCR 133, referred to.\n\n(8) Section 401(3) leaves it to the option of the Government to take the penal action and there is no automatic return of the prisoner tu the jail on breach of any condition of the remission. It will certainly be open to the Government in a particular case to cancel the remission but it may not.\n\nThe Government is not under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order o.f cancellation of the remission bf sentence that the convict is arrested and is required to serve the unexpired portion of the sentence. During the interval the: accused who is released cannot be said to be under a sentence of imprisonment for life while he is in enjoyment of the freedom on account of remission. That period is not even reckoned under s. 401 Cr. P.C. for the purpose of calculation of the sentence to be served in the eventuality. [397 B-C, E]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 592/ 1976.\n\n(Appeal by S.Eecial Leave from the Judgment and Order dated 19.11.1975 of the Karnataka High Court in Cr!. A. No. 551 of 1974 and Reference Case No. 56/74) R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent.\n\nThe Judgement of the Court was delivered by\n\nGOSWAMI, J. The short question in this appeal by special leave is whether a person sentenced to imprisonment for life and later released 4 by the Government by remission o~ the sentence under section 401, Criminal Procedure Code, 1898, continues to \"being under sentence of imprisonment for life\" for the purpose of section 303, Indian Penal Code.\n\nThe appellant had earlier been .convicted on July 26, 1961, by .the High Court of Mysore under sechon 302 IPC and sentenced to imprisonment for life in an appeal by the State against his acquittal.\n\n, The earliermurder was on December 3, 1959. The State Govern- A ment in exercise of its power nnder section 401 Cr. P.C. condition- ; ally remitted his sentence on Feburary 8, 1972. Thns he was cond1Uonally released from jail on Feburary 8, 1972.\n\nTragically enough, on January 27, 1973, the appellant got himself involved in the present murder charge even before the expiry of the first Year of his release.\n\nHe was convicted nnder section 302 and section 303 . IPC by the Sessions Judge, Kolar, on November 7, 1974 and sentenced to death B under section 303 IPC.\n\nOn an appeal to the High Court by ths appellant which was heard along with the reference for confirmation, the sentence of death under section 303 IPC was confirmed on November 19, 1976.\n\nHence this appeal by special leave limited to the question of applicability of section 303 IPC and the sentence.\n\nThe earlier sentence of imprisonment for life became final and C inexorable so far as the judicial process was concerned. It is only when such a sentence is \"operative and executable\" that section 303 IPC is attracted. (See Dilip Kumar Sharma & Ors. v. State of Madhya Pradesh (1) .\n\nThe remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under section 401 Cr. P.C.\n\nThe power has been exercised, in the instant case, laying down certain conditions which the convict had accepted.\n\nThe two conditions were\n\nhat, during the unexpired period of his sentence conditionally remitted,\n\n(1) he will not commit any offence punishable by any law in Mysore and (2) he will not in any way associate with persons known to be of bad character or lead a dissolute or evil life.\n\nThe portion of the remitted sentence, in this case, was a period of four years and four months after the appellant had nndergone over 15t years' oi his sentence including a little over five years' remission earned by him in jail. In the normal course, in absence of the order of remission, the appellant would have been released from jail on June\n\n19, 1976.\n\nF Shortly stated, was the appellant under sentence of imprisonment for life on the date of occurrence of the second murder on January 27, 1973? If he was continuing to be under the sentence of imprisonment for life on that day the court cannot come to his rescue by exer- .!Cising discretionary clemency in favour of the alternative sentence.\n\nIThen the only sentence the court has power and is obliged to impose, land no other, is the sentence of death.\n\nThat is the true effect of sec- G It.ion 303 IPC.\n\nThe fact that the accused is of the age of 73 years ,'will be of no consequence once he is found guilty under section 303\n\nffPC.\n\nThe court will be helpless in snch an event.\n\nThe Sessions Judge as well as the High Conrt held that section 303 IPC was applicable as this was a case of conditional remission nnder section 401 Cr. P.C. and the second murder was committed n during the unexpired portion of the sentence of imprisonment for life.\n\n\n396 SUPREME couu REPORTS\n\n\nIt is the correctness of the above view of the law that falls for !consideration before us.\n\nThat view receives support from the followring decisions cited at the bar.\n\nThe first decision is from the Rangoon High Court in Po Kun v .. The King(1). It was held in that case that-\n\n\"if the sentence of transportation for life passed on a person is conditionally remitted by the Government under s. 403? Criminal P.C., and the person is released, such person must still be deemed to be undet sentence of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement\".\n\nThe next decision is from the Punjab High Court in Sohan Singh\n\nv. The State(2 ). It was held in that case that-\n\n\"it is not essential for the application of the section (303 IPC) that a person should be ctnally undergoing the sentence of imprisonment for life when he commits murder\".\n\nx x x x\n\n\" ...... the effect of a conditional order of remission is not to altogether wipe ont or efface the remitted portion of the sentence, but to keep it in abeyance. As soon as there . is breach of the conditions of the remission, the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence.\n\nIn the circumstances the accused should be deemed to be under sentence of imprisonment for life when the present occurrence took place\".\n\nOur attention was drawn to a decision of the Sind Court in Ghulam Muhammad Wali Muhammad v. Emperor(') which was a case of .\"unconditional remission of the sentence under section 401 Cr. P.C. !It was held in that decision that since the Provincial Government had Temitted the sentence without condition under section 401 Cr. P.C. 'the accused committing the second murder after the remission would 1110 longer be said to be \"under a sentence of transportation for life, 'that sentence having in effect been served\".\n\nWe are, however, clearly of opinion that fov the purpose of section 303 IPC it does not make any difference whether the remission under section 401 Cr. P:C. with or without conditions. This is clear from 'a perusal of sub-section (3) of section 401 Cr. P.C. which reads as follows :-\n\n401 (3) \"If any condition on which a sentence has been suspended or remitted, is in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission and thereupon the person\n\n(!)A.LR. 1939 Rangoon 124.\n\n(2) [1965] I.L.R. 18 (!) Punjab 201.\n\n(3) A.I.R. 1943 Sind 114.\n\nIn whose favour the sentence has been suspended or remit- A ted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence\".\n\nIt is manifest from the above provision that on breach of any condition of the remission there is not an automatic revival of the senltem; e. It will certainly be open to the, Government in a, particular B .case to cancel the remission but it may not.\n\nThe Government is not , under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order of cancellation of .the remission , of sentence that the convict is arrested and is required to serve the !unexpired portion of the sentence. During the interregnum the accusled who is rele;.ised cannot be said to be under a sentence of imprisonment for life.\n\nWhile he is in enjoyment of the freedom on account c .of remission, that period is not even reckoned under section 401 Cr.\n\nIP.C. for the purpose of calculation of the sentence to be served in the !eventuality.\n\nTake the present case.\n\nSupp.ose dnring the unexpired period of fuis sentence, which would had normally ended on January 9, 1976, lthe accused made breach of the fust condition of the remission giving D a slap to a person an offence punishable under section 358 IPC. !Clearly there is a breach of one of the conditions laid down, namely, tihat \"he will not commit any offence punishable by any law in Mysore\".\n\nCan it be conceived that in such a case the Government will immediately cancel the remission and remand him to serve the remaining period of his sentence of imprisonment for life ? That is why section\n\n401 (3) Cr. P.C. advisedly leaves it to the option of the Government E to take the• penal action and there is no antomatia return of the prisoner to the jail.\n\nCounsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and\n\nOthers v.\n\nKhagendranath Nath and Others(!). In Sarai Chandra Rabha case (supra) the question of remission under section 401 Cr.\n\nF P.C. came up for consideration in the context of a disqualification clause under section 7 (b) of the Representation of the People Act,\n\n1951. In that case the appellant's nomination paper was rejected by the Returning Officer for incurring disqualification under section 7 (b) of the Representation of the People Act. According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release.\n\nIt was admitted in that case that the appellant was convicted under section 4(b) of the Explosive Snbstaiices Act, (VI of 1908) and sentenced fo three years' rigorous imprison- H ment on July 10, 1953 and the nomination paper was filed\n\n\nSUPREME COUTS REPORTS\n\n\nin January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since his release by the State under section 401 Cr. P.C. on November 14, 1954.\n\nThis Court held in that case that section 401 Cr. P.C., unlike the grant of a free tpardon, cannot wipe out eithe_r the conviction or the sentence and affirmed the order of rejection of the nomination paper on the ground of disqualification incurred under section 7(b) of the Representation of the People Act.\n\nMr. Nettar for the State emphasises upon the observation of this Court in Sarat Chandra Rabha case (supra) that there is no wiping icmt of the conviction and sentence under section 401 Cr. P.C. in the 'Present case and, therefore, the present appellant's conviction and rsentence subsisted on the date of the second murder.\n\nIn Sarat Chandra Rabha case (supra), this Court had to consider the effect of remission vis-a-vis a disqualification clause under an Act !which even provides for removal of disqualification by the Electiqn\n\nCommission and which was not actually done.\n\nThere is a complete !purging process provided in the Representation of the People Act itself by an efflux of a period of five years from release on expiry of !the sentence.\n\nConviction and sentence recorded by a judicial court cannot be wiped , out by executive remission under section 401 Cr. P.C. in order to set at naught the penitentiary period provided for in the Act, in absence of removal of the disqualification by the Election Commission under the Act.\n\nThose were the considerations which weighed with this, Court when it refused to do away with the effect of the judicial conviction and sentence merely on the basis of executive remission.\n\nEven if the sentence were run through without remission, the five yearn' period had to elapse for commencement of new electoral 1ifo.\n\nThll factum of conviction and the sentence is sufficient and it 'does not matter whether it has been served out wholly or a portion of\n\nt has been remitted.\n\nThe person remains convicted and sentenced for :the purpose of the Representation of the People Act notwithstanding the remission.\n\nThe decision in Sarai Chandra Rabha case (supra)\n\nloes not at all support the submission that even after remission of the 'sentence the convict therein was under a sentence of imprisonment.\n\nNo such corollary follows from the above decision of this Court.\n\nThe observations of this Court in Sarat Chandra Rabha case (supra)\n\nith regard to wiping out of conviction and sentence cannot be press- '!'d too far in a criminal trial where the provisions of the penal section ':have to be very strictly construed and in case of ambiguity or passii!ity of two views the benefit of construction must be in favour of '.the accused.\n\nTo revert, at the end, to the only question with which we started. <was the appellant under sentence Of imprisonment for life during the 1mexpired period of his imprisonment conditionally remitted under isection 401 Cr. P.C.?\n\nWe are clearly of opinion that an accused cannot be under a sentence of imprisonment for life at the time of commiSsion of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence\n\n. I\n\nwhich he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr.P.C. Section 303 IPC is applicable only to an accused who, on the date of commission of the second offence of murder, had earlier committed a\n\nurder for which his conviction and sentence of imprisonment for life 'were beyond judicial controversy and were operative.\n\nUnlike in the case of section 75, Indian Penal Code, section 303 IPC does not contemplate a mere enhanced punishment for a convict with a past criminal history for the same offence.\n\nSection 303 IPC creates a most aggravated form of offence when committed by a person under sentence of imprisonment for life to be punished only with death, the maximum penalty under the law.\n\nA person must be actually and irrevocably a lifer beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with the penalty of death under section 303 IPC. If the sentence of a convict had already been remitted at the time of commission of the second murder he wo11Jd cease to be an actual lifer to come within the lethal clamp of section 303 IPC.\n\nFor the purpose of section 303 IPC there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life.\n\nThe decision of the Punjab High Court in Sohan Singh case (supra); with respect, is not correct. We are also, with respect, unable to agree. with the view of the Rangoon High Court in Po Kun case (supra).\n\nWe find from the judgement of the trial court as well as that of the High Court that if the appellant were not convicted under section 303 IPC, a sentence of death would not have been imposed on him. For the reasons set out earlier we are clearly of opinion that the appellant is not liable for conviction under section 303 IPC and his sentence of death is, therefore, set aside.\n\nThe judgment and order of the High Court are set aside to that extent.\n\nThe appellant, however, stands convicted under section 302 IPC and is sentenced to imprisonment for life. The appeal is partly allowed with the above modification of the sentence.\n\nS.R.\n\nAppeal allowed in part.\n\n11-436SCI/77", "total_entities": 147, "entities": [{"text": "SHAIK ABDUL AZEEZ", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "SHAIK ABDUL AZEEZ", "offset_not_found": false}}, {"text": "STATE OF KARNATAKA", "label": "RESPONDENT", "start_char": 19, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF KARNATAKA", "offset_not_found": false}}, {"text": "March 28, 1977", "label": "DATE", "start_char": 39, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "SHAIK ABDUL AZEEZ\n\nSTATE OF KARNATAKA\n\nMarch 28, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 56, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. 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C. condi- .tionally remitted his sentence on February 8, 1972 and he was, therefore, con- .ditionally released from jail on February 8, 1972."}}, {"text": "January 27, 1973~", "label": "DATE", "start_char": 1547, "end_char": 1564, "source": "ner", "metadata": {"in_sentence": "Even before the expiry of the .first year of his release, the appellant got himself involved on January 27, 1973~ .in another murder charge."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1615, "end_char": 1621, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 303", "label": "PROVISION", "start_char": 1632, "end_char": 1638, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "November 7, 1974", "label": "DATE", "start_char": 1680, "end_char": 1696, "source": "ner", "metadata": {"in_sentence": "He was convicted under s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302\n\nJ. P. C. was confirmed on November 19, 1975."}}, {"text": "s. 303", "label": "PROVISION", "start_char": 1728, "end_char": 1734, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 1862, "end_char": 1868, "source": "regex", "metadata": {"statute": null}}, {"text": "November 19, 1975", "label": "DATE", "start_char": 1896, "end_char": 1913, "source": "ner", "metadata": {"in_sentence": "He was convicted under s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302\n\nJ. P. C. was confirmed on November 19, 1975."}}, {"text": "s. 303", "label": "PROVISION", "start_char": 1929, "end_char": 1935, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 401", "label": "PROVISION", "start_char": 2012, "end_char": 2018, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 303", "label": "PROVISION", "start_char": 2235, "end_char": 2241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 401", "label": "PROVISION", "start_char": 2767, "end_char": 2773, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 303", "label": "PROVISION", "start_char": 2990, "end_char": 2996, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2997, "end_char": 3002, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ip Kumar Sharma", "label": "OTHER_PERSON", "start_char": 3029, "end_char": 3044, "source": "ner", "metadata": {"in_sentence": "395-C]\n\nDi/ip Kumar Sharma & Ors."}}, {"text": "s. 75", "label": "PROVISION", "start_char": 3408, "end_char": 3413, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 303", "label": "PROVISION", "start_char": 3423, "end_char": 3429, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3430, "end_char": 3435, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 303", "label": "PROVISION", "start_char": 3549, "end_char": 3560, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3561, "end_char": 3566, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 303", "label": "PROVISION", "start_char": 3812, "end_char": 3818, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3820, "end_char": 3825, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 303", "label": "PROVISION", "start_char": 4377, "end_char": 4383, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 303", "label": "PROVISION", "start_char": 4567, "end_char": 4573, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4574, "end_char": 4579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 303", "label": "PROVISION", "start_char": 4613, "end_char": 4619, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 303", "label": "PROVISION", "start_char": 4819, "end_char": 4825, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4827, "end_char": 4832, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 401", "label": "PROVISION", "start_char": 4912, "end_char": 4923, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 303", "label": "PROVISION", "start_char": 4967, "end_char": 4973, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 401", "label": "PROVISION", "start_char": 5042, "end_char": 5048, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 401(3)", "label": "PROVISION", "start_char": 5338, "end_char": 5352, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 401", "label": "PROVISION", "start_char": 6115, "end_char": 6121, "source": "regex", "metadata": {"statute": null}}, {"text": "R. B. Datar", "label": "OTHER_PERSON", "start_char": 6446, "end_char": 6457, "source": "ner", "metadata": {"in_sentence": "56/74) R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent."}}, {"text": "Narayan Nettar", "label": "PETITIONER", "start_char": 6477, "end_char": 6491, "source": "ner", "metadata": {"in_sentence": "56/74) R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent."}}, {"text": "R. C. Kaushik", "label": "LAWYER", "start_char": 6496, "end_char": 6509, "source": "ner", "metadata": {"in_sentence": "56/74) R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 6577, "end_char": 6584, "source": "ner", "metadata": {"in_sentence": "The Judgement of the Court was delivered by\n\nGOSWAMI, J. The short question in this appeal by special leave is whether a person sentenced to imprisonment for life and later released 4 by the Government by remission o~ the sentence under section 401, Criminal Procedure Code, 1898, continues to \"being under sentence of imprisonment for life\" for the purpose of section 303, Indian Penal Code."}}, {"text": "section 401", "label": "PROVISION", "start_char": 6769, "end_char": 6780, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code, 1898", "label": "STATUTE", "start_char": 6782, "end_char": 6811, "source": "regex", "metadata": {}}, {"text": "section 303", "label": "PROVISION", "start_char": 6893, "end_char": 6904, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code, 1898", "statute": "Criminal Procedure Code, 1898"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6906, "end_char": 6923, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "IPC", "label": "STATUTE", "start_char": 7032, "end_char": 7035, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 401", "label": "PROVISION", "start_char": 7226, "end_char": 7237, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 302", "label": "PROVISION", "start_char": 7559, "end_char": 7570, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 303", "label": "PROVISION", "start_char": 7575, "end_char": 7586, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 7589, "end_char": 7592, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 303", "label": "PROVISION", "start_char": 7674, "end_char": 7685, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", 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were\n\nhat, during the unexpired period of his sentence conditionally remitted,\n\n(1) he will not commit any offence punishable by any law in Mysore and (2) he will not in any way associate with persons known to be of bad character or lead a dissolute or evil life."}}, {"text": "June\n\n19, 1976", "label": "DATE", "start_char": 9154, "end_char": 9168, "source": "ner", "metadata": {"in_sentence": "In the normal course, in absence of the order of remission, the appellant would have been released from jail on June\n\n19, 1976."}}, {"text": "January 27, 1973", "label": "DATE", "start_char": 9297, "end_char": 9313, "source": "ner", "metadata": {"in_sentence": "F Shortly stated, was the appellant under sentence of imprisonment for life on the date of occurrence of the second murder on January 27, 1973?"}}, {"text": "IPC", "label": "STATUTE", "start_char": 9672, "end_char": 9675, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 303", "label": "PROVISION", "start_char": 9788, "end_char": 9799, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 303", "label": "PROVISION", "start_char": 9909, "end_char": 9920, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 9921, "end_char": 9924, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 401", "label": "PROVISION", "start_char": 9990, "end_char": 10001, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Rangoon High Court", "label": "COURT", "start_char": 10349, "end_char": 10367, "source": "ner", "metadata": {"in_sentence": "The first decision is from the Rangoon High Court in Po Kun v .. The King(1)."}}, {"text": "s. 403", "label": "PROVISION", "start_char": 10541, "end_char": 10547, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 10791, "end_char": 10808, "source": "ner", "metadata": {"in_sentence": "The next decision is from the Punjab High Court in Sohan Singh\n\nv. The State(2 )."}}, {"text": "IPC", "label": "STATUTE", "start_char": 10936, "end_char": 10939, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 401", "label": "PROVISION", "start_char": 11713, "end_char": 11724, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 401", "label": "PROVISION", "start_char": 11851, "end_char": 11862, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 303", "label": "PROVISION", "start_char": 12119, "end_char": 12130, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 12131, "end_char": 12134, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 401", "label": "PROVISION", "start_char": 12195, "end_char": 12206, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 401", "label": "PROVISION", "start_char": 12296, "end_char": 12307, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 401", "label": "PROVISION", "start_char": 13620, "end_char": 13631, "source": "regex", "metadata": {"statute": null}}, {"text": "IP.C", "label": "STATUTE", "start_char": 13637, "end_char": 13641, "source": "regex", "metadata": {}}, {"text": "section 358", "label": "PROVISION", "start_char": 13975, "end_char": 13986, "source": "regex", "metadata": {"linked_statute_text": "IP.C", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 13987, "end_char": 13990, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section\n\n401", "label": "PROVISION", "start_char": 14329, "end_char": 14341, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Sarat Chandra Rabha", "label": "OTHER_PERSON", "start_char": 14609, "end_char": 14628, "source": "ner", "metadata": {"in_sentence": "Counsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and\n\nOthers v.\n\nKhagendranath Nath and Others(!).", "canonical_name": "Sarat Chandra Rabha"}}, {"text": "Khagendranath Nath", "label": "RESPONDENT", "start_char": 14645, "end_char": 14663, "source": "ner", "metadata": {"in_sentence": "Counsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and\n\nOthers v.\n\nKhagendranath Nath and Others(!)."}}, {"text": "Sarai Chandra Rabha", "label": "OTHER_PERSON", "start_char": 14682, "end_char": 14701, "source": "ner", "metadata": {"in_sentence": "In Sarai Chandra Rabha case (supra) the question of remission under section 401 Cr.", "canonical_name": "Sarat Chandra Rabha"}}, {"text": "section 401", "label": "PROVISION", "start_char": 14747, "end_char": 14758, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 7", "label": "PROVISION", "start_char": 14847, "end_char": 14856, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 14868, "end_char": 14900, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 7", "label": "PROVISION", "start_char": 15030, "end_char": 15039, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act,\n\n1951", "statute": "the Representation of the People Act,\n\n1951"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 15051, "end_char": 15083, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 7", "label": "PROVISION", "start_char": 15098, "end_char": 15107, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act,\n\n1951", "statute": "the Representation of the People Act,\n\n1951"}}, {"text": "Parliament", "label": "ORG", "start_char": 15203, "end_char": 15213, "source": "ner", "metadata": {"in_sentence": "According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release."}}, {"text": "India", "label": "GPE", "start_char": 15314, "end_char": 15319, "source": "ner", "metadata": {"in_sentence": "According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release."}}, {"text": "Election Commission", "label": "ORG", "start_char": 15452, "end_char": 15471, "source": "ner", "metadata": {"in_sentence": "According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release."}}, {"text": "section 4(b)", "label": "PROVISION", "start_char": 15606, "end_char": 15618, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act,\n\n1951", "statute": "the Representation of the People Act,\n\n1951"}}, {"text": "SUPREME COUTS REPORTS", "label": "ORG", "start_char": 15776, "end_char": 15797, "source": "ner", "metadata": {"in_sentence": "It was admitted in that case that the appellant was convicted under section 4(b) of the Explosive Snbstaiices Act, (VI of 1908) and sentenced fo three years' rigorous imprison- H ment on July 10, 1953 and the nomination paper was filed\n\nSUPREME COUTS REPORTS\n\nin January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since his release by the State under section 401 Cr."}}, {"text": "section 401", "label": "PROVISION", "start_char": 15942, "end_char": 15953, "source": "regex", "metadata": {"statute": null}}, {"text": "November 14, 1954", "label": "DATE", "start_char": 15966, "end_char": 15983, "source": "ner", "metadata": {"in_sentence": 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{"document_id": "1977_3_400_407_EN", "year": 1977, "text": "LAKSHMI CHAND KHAJURIA & ORS.\n\nSMT. ISHROO DEVI\n\nMarch 31, 1977\n\n[A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nTe1tan1e1!tary Will disposing of the ancestral property to a far relation, whether valid under s. 27 of the J'!mmu & Kashmir Hindu Succe.rsion Act, 19~6-Scope o~ s. 27 and explanation thereto-Whether income of a hereditary priest, !'l hereditary prperty-Mitakshara law as applicable to Jammu & Ka.shm1r-Though a wife cannot demand a partition she is entitled to receive a share equal to that of a son and to hold and en; oy that share .separately even from her husband.\n\nOn the. strenh of a Will dated 25th May 1959, executed in her favour by one Purohxt Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully dispossed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testator and that he was entitled to dispose them under the Will.\n\nThe appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were men1bers and as the properties were joint family properties, they cannot be disposed of by Will. It was further aUeged that the Will was a forged one and is fictitious.\n\nThe trial court, accepting the evidence of PWl, an advocate, who advised in the preparation of the Will and also an attesting witness, PW2 the scribe and PW3 who deposed the fact that the properties were self-acquired ones of late Purohit Mani Ram. decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items 1 (b) and 2 holding that they were ancestral ones.\n\nOn appeal, the High Court accepted the findings of the trial court and confirmed the decree as regards item 1 (a) of the property but modified the order as regards item 1 (b) and 2 by allowing the claim of the respondent to the extent of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act 1'1ani Ram was entitled to dispose of his interest in the joint family property by Will.\n\nJn appeal by certificate to this Court, the appellant contended : (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohibition against alienation introduced by Ordinance \\Vhich caII)e\n\ninto force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of\n\nth~ Will.\n\n(ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property.\n\n(iii) In view of the Mitakshara law apnlicable to the estate when partition of the joint family property takes place during the father's life time at the instance of the son, the mother also has a share equal to him.\n\nThe Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in re.spec! of items l(b) and 2 of the schedule property as I/3rd. in favour of appellant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd 1n favour of respondent as entitled by the Will.\n\nThe Court,\n\nHELD: (!) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre-dated and not executed\n\nL. c. KHAJURIA v. ISHROO DEVI (Kaifasam, J.)\n\n40 I\n\non the day on which it purports to be is without any 15ubstance and against the A evidence on record. [403 H, 404 A]\n\n(2) The contention that the Will is an unnatural one is also without substance. The non-disclosure of the execution of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about rus iispossessing of the property by Will. [404 B, DJ\n\n(3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, B there was no challenge to the gist of the Will noted by PW2, the scribe, in one of his tegularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of bis advising in the preparation of the Will having seen the execu tant sign the Will in his presence be not accepted. [405 A-Cl\n\n( 4) The income from the practice of a hereditary profession will not be a joint family property. Item I (a) of the Property is the self-acquisition of Mani C Ram and the decree of the appe1late court so far as item No. 1 (a) is concerned must be confirmed.\n\n[406 A, DJ\n\nHanso Pathak v. Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved.\n\nChalab!iai Gaurishankat v. Hargowan Rantji & Ors. I.L.R. 36 Born. 94, over ruled.\n\n(5) Under the Mitaksbara Jaw excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the iru; tant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him be claimed 1 /3rd share conceding that his father and mother are entitled to the other 2/jrd share.\n\nAs no decision in respect of the interest of the male Hindu in Jammn\n\n& Kashmir was cited the question is remitted to the High Court for decision as E to what is the extent of the interest as regards items 1 (b) & 2 of the plaint Schedule properties. [406 E-F, 407 B-E]\n\nDular Koeri v. Dwarkanatl1 Misser ILR 32 Cal. 234; Sumrun Thakoor v.\n\nChunder Mun Misser & Ors., ILR 8 Cal. 17; Hosbanna Devanna Naik v.\n\nDevanna Sannappa Naik and Ors. JLR 48 Born. 468 and Pratap Singh v. Dalip Singh ILR 52 All. 596, approved.\n\n(6) In view of s. 27 of the Jammu & Kashmir Hindu Succession Act, 1956 which provides that any Hindu male may dispose of by Will any property which F is capable of being disposed of by him in law and also explanation to that sec tion which makes it clear that the interest of a male Hindu in a Mitakshara coparcenary property be deemed to be property capable of being di5posed of l:>y him within the meaning of the sub-section, in the instant case Mani Ram can dispose of his share µoder a Will. Admittedly the respondent, will be entitled to 1 /3rd share in respect of item 1 (b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a)~ [406 D-E, 407 E-F]\n\n[The Court remitted the case back for the determination of the interest which G Mani Ram had in the joint family property at the time of his death which he could dispose of by his 'Will and grant a decree accordingly.]\n\nCIVIL APPELLATE JURISDICTION : C.A. No. 2330 of 1968.\n\n(From the Judgment and Order dated the 12th March, 1968 of the Jammu & Kashmir High Court in Civil First Appeal No. 9 of H 1966.)\n\nG. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants.\n\n0. P. Malhotra, K. J. John and Shri Narain for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J .-This appeal is preferred by the defendant in the suit on a certificate of fitness granted by the High Conrt of Jammu & Kashmir under Article 133 of the Constitution.\n\nThe respondent, Ishroo Devi, filed a suit for a decree for possession of all the three items of property mentioned in the plaint and for future mesne profits.\n\nIt was alleged that the three items of property mentioned in the plaint. were the self-acquired properties of one Purohit Mani Ram.\n\nHe executed a will on 25th May, 1959, out of his own free will in favour of the respondent.\n\nThe original will was attached to the plaint.\n\nPurohit Mani Ram died on 24th March, 1960, at Jammu and the resoondent claimed to be the sole owner of the properties. -\n\nThe first appellant is the son, the second appellant is the wife and the third appellant is the grand-daughter of Purohit Mani Ram.\n\nIn the plaint it is alleged tjmt the first appellant after the death of Purohit Mani Ram got rent deed executed in his favour and also recorded mutations in his name and dispossessed the respondent.\n\nThe respondent also claimed that the three items of property were the separate properties of Purohit Mani Ram and that he was entitled to dispose of them under a will.\n\nIn the written statement the appellants averred that the properties belonged to the joint family of which the first appellant and his father, Purohit Mani Ram, were members and as the properties were joint family properties, they cannot be disposed of by will.\n\nIt was further alleged that the will was a forged one and is fictitions.\n\nThe respondent examined Janak Lal Sehgal, an advocate of the Supreme Court, and the scribe of the will one Bodh Raj.\n\nP.W. 1, the advocate, stated that Mani Ram executed the will on 25th May, 1959, in favour of the respondent.\n\nHe saw Mani Ram affix his sig- F nature on the will the words (in vernacular) under which Janak Lal had signed as witness, were under the words (in vernacular) where Purohit Mani Ram had signed.\n\nJanak Lal had given the date with his own hand where he had signed as witness. The witness also testified that the mental condition of Purohit Mani Ram was good and he executed the will of his own free will and no pressure or fraud was played on him.\n\nP.W. 2 Bodh Raj, is the scribe of the will. He G stated that he wrote the will at the instance of Mani Ram and after reading the will and explaining it to the testator, the testator affixed his signature and admitted it to be correct.\n\nAccording to the witness the will was executed on 25th May, 1959, and on the same date the signature of the testator and those of the witnesses were affixed. At the time of the examination the witness stated that the physical and the mental condition of the testator was good and he read out the H will at the house of Janak Lal Sehgal and obtained the signatures of Mani Ram and that of P.W. 1, the advocate.\n\nP.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja, and that the Maharaja was giving\n\nL. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.) 403\n\nlot of money to Purohit Mani Ram as present.\n\nThe witness also A stated that item 1 of the properties was constructed by Mani Ram with his own income.\n\nOn behalf of the appellants a handwriting expert, Philip Hardless, and three witnesses were examined in addition to the first appellant.\n\nThe trial court accepted the evidence of P. W. 1, the advocate, and P.\\V. 2, the scribe and held that the will was proved.\n\nHolding that items 1 (b) and 2 of the plaint schedule properties were ancestral properties found that Mani Ram had no authority to dispose of these two items of properties by will.\n\nTherefore while decreeing the suit as regards item No. (1) (a) of the plaint schedule properties dismissed the claim as regards items 1 (b) and 2.\n\nOn appeal by the appellants a Bench of the Jammu & Kashmir High Court agreeing with the finding of the trial court and accepting the testimony of P. W. 1, the advocate, and P.W. 2, the scribe of the will, found it to be genuine and executed by Mani Ram.\n\nThe appellate court also confirmed the finding of the trial court that the item 1 (a) of the property is self-acquired property of Mani Ram while items 1 (b) and 2 are the ancestral properties.\n\nWhile confirming the decree of the trial court as regards item 1 (a) it allowed the respondent's claim regarding items 1 (b) and 2 to the extent of one.- half share holding that under section 27 of the Jammu & Kashmir Hindu Succession Act, Mani Ram was entitled to dispose of his interest in the joint family property by will.\n\nAggrieved by the decision of the Bench of the Jammu & Kashmir High Court the appellants have preferred this appeal.\n\nThough the concurrent finding of both the courts below is that the will was a valid one and was executed by Mani Ram of his own free will and when possessed of aU his faculties Mr. Pai, the counsel for the appellants, strenously contended that the finding should not be accepted.\n\nHe submitted that a look at the signature of Mani Ram in the will and his signatures in admitted documents would prove that the signature in the will is not that of Mani Ram.\n\nHe next contended that the will was antedated in order to escape the prohibition against alienation introduced by an Ordinance which came into force in July, 1959, Thirdly, he submitted that the will is a most unnatural one as it had not provided for the son, or the wife or near relatives but had given the entire property to a distant relation.\n\nFourthly, he submitted that in a suit which was filed by the son for partition against Mani Ram, the latter gave an undertaking not to alienate his properties and taking into account the proceedings it is most unlikely that he would have executed the will at time which it purports to be as he wonld have mentioned about his execution of the will in the proceedings.\n\nWe have examined all these points very carefully and we find that there is no substance in any one of them.\n\nThe plea that the will was executed after July, 1959, when there was a prohibition against the alienation and it was pre-dated is without any substance.\n\nThe will is dated 25th May, 1959, and a contemporaneous record of the substance of the will is made by P.W. 2\n\nA in one of his regularly keet books.\n\nWe see no need for predating of the will and the basis of the argument that the will was not executed on the day on which it purports to be is without substance.\n\nRegarding the next contention that the will is an unnatural one it has to be seen that the son had filed a suit for partition and in the B written statement the father had gone so far as to disown his paternity.\n\nIt is common ground that the relationship between Mani Ram and his son was greatly strained and it is not surprising that he has disowned him, in unmistakable terms in the will.\n\nThe submission that the will would not have been executed in mid 1959 is based on the plea that he had made a statement in December, 1959, that he had not alienated any property.\n\nThe son in the suit prayed for an C order against Mani Ram restraining him from alienating the joint family properties except with the permission of the court.\n\nA consent order was passed directing Mani Ram not to alienate joint family properties.\n\nThere was no need for Mani Ram to mention about the will for it is not an alienation and in any event the will according to Mani Ram did not relate to joint family properties.\n\nThe nondisclosure of the execntion of the will is understandable because Mani D Ram did not want anyone particularly his son to know about his dispossessing of the property by will.\n\nThis ground also is without substance.\n\nthe main ground of attack was that on the face of it, it is apparent that the signature is not that of Mani Ram.\n\nThe appellate court E has found that Mani Ram was an illiterate person and that he had no standard signature.\n\nHis signature is not well formed, but his signature in the Vakalatnama and in the will bear striking, resemblance as found by the Bench of the High Court.\n\nThough there are certain dissimilarities between the signature in the will and in those of admitted documents we are unable to say that the signature in the will is not that of Mani Ram.\n\nIn this connection we have examined the F evidence of the handwriting expert who gave evidence on behalf of the appellants.\n\nWe feel that .his qualifications are not such as to accept him as a handwriting expert.\n\nHe has hardly done any work as an expert after 1950 and we find in his deposition that he has exceeded the limits as an expert and supported the appellants in matters which were not within his province.\n\nWe have no hesitation in agreeing with the High Court and rejecting his testimony.\n\nA com- G ment was made on the fact that the date and endorsement in the will is in a different ink and probably was not written at the same time.\n\nJn this connection a discrepancy in the evidence of the scribe, P.W. 2,\n\nas to where actually the date was moted whether it was in his house or that of the lawyer's was made much of.\n\nWe do not think that this discrcpncy would affect the truth of the matter.\n\nIt is seen that P.W. 2 in his record entered summary of the will on the same H day.\n\nIt is significant that in the cross examination no question was asked challenging the genuineness.\n\nThe entry with regard to the will was made by P.W. 2 in the Register which is a publid register and on examination we find there is nothing suspicious about it.\n\nmay also be noted that the first appellant, the son of Mani Ram, has not stated that the signaure found in the will is not that of his father.\n\nApart from all these circumstances we find the evidence of P.W. l a respectable advocate, who speaks of his advising in the preparation of the will, his seeing the executant sign the will in his presence can be safely accepted.\n\nExcepting that a statement which he made as a witness was rebutted by a District Judge nothing else bas been suggested against him.\n\nWe have no.hesitation in accepting the evidence of these two witnesses, as the two lower courts have done. There is no ground at all for rejecting the evidence of P.W. 2, the scribe, whose evidence has been accepted by both the courts. . The scribe had immediately noted the gist of the will in one of his regularly kept records which has not been challenged.\n\nWe have, therefore, no hesitation in accepting the finding of the two lower courts that the will is a genuine one and was executed by Mani Ram of his own free will.\n\nMr. Pai, counsel for the appellants, submitted that the High Court was in error in holding that item 1 (a) of the properties is the selfacquired property of Mani Ram.\n\nAccording to the learned counsel the hereditary profession of Mani Ram was that of a priest and whatever he earned while practising that profession and all his acquisisions should be held to be jQint family property.\n\nThe evidence is that Mani Ram was not only a priest but worked in three posts.\n\nHe was a priest and at the same time was in the private office of the Maharaja and was also an A.D.C. of the Mabaraja and the Maharaja used to give presents to him.\n\nIt is in e; idence that the Mabaraja had given the land and himself constructed the Kothi before giving it to Mani Ram.\n\nIn support of the contention that the income derived from practice of a hereditary profession should be construed as ancestral property, the learned counsel referred us to two decisions in Ghelabhai Gavrishankar v. Hargowa11 Ramjl & Others('), and Hanso Pathak v. Harmandil Pathak and Another.( 2 ).\n\nNeither of the cases support the contention of the learned counsel.\n\nIn the first case the question that arose for consideration was about the nature of the office of a hereditary priest.\n\nIt was held that the hereditary right of the priest is immovable property.\n\nChandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded\n\nns vritti or immoveable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property.\n\nIn fact in Hanso Pathak v. Harmandil Pathak and Anr. (supra) it has been made clear that in the United Provinces the income received as amounts paid by Yajamans at their discretion either by way of charity or by way of remuneration for personal services rendered by the priest, cannot be claimed as of right, and cannot amount to a family property. Chief Justice Sulaiman expressed his view that the income received as amounts paid by people at their discretion eiher by way of charity or by way of remuneration for personal services rendered cannot be claimed as of right amount to family property.\n\nMukerji, J. in a concurring judgment after distinguishing\n\nI. I.LR. 36 Born. 94.\n\n2. A.LR. 1934. All. 351.\n\nGhelabhai Gavrishankar v. Hargowan Ramji & Others (supra) held that the income is \"Vidyadhana\" which is the same thing as \"gains of science\" or what has been acquired by exercise of learning cannot be divided by partition.\n\nWe agree with the view thus expressed by the Allahabad High Court and find that the income from the practice of a hereditary profession will not be joint family property.\n\nMani Ram was getting Rs. 100 as A.D.C. and was in addition drawing a salary of Rs. 140 a month as an employee in the private Department of the Maharaja.\n\nThus he had ample means to acquire item 1 (a) of the property from his self-acquisition.\n\nOn the other hand there is hardly any evidence to prove that he had any ancestral nucleus.\n\nIt is stated that the family had some jewels and cash which were kept in the safe of the Maharaja and there is nothing to indicate that anything out of the cash or jewellery was used in purchasing item 1 (a) of the property.\n\nI was also contended that the property that belonged to Mani Ram was only the house and not the land attached to the house.\n\nWe have no hesitation in rejecting this desperate plea. The result is we confirm the findings of the courts below that item 1 (a) of the property is the self-acquisition and the decree of the appellate court so far as item 1 (a) is concerned is confirmed.\n\nRegarding items 1 (b) and 2 the, appellate court has found that they are joint family properties.\n\nIt is admitted by both the parties that under section 27 of the Jammu & Kashmir Hindu Succession Act, 1956, the interest of the coparacener in a joint Hindu family property can be disposed of by will.\n\nSection 27 provides that any Hindu may dispose of by will any property which is capable of being disposed by him in law.\n\nThe Explanation to the section makes it clear that the interest of a male Hindu in a Mitakshara coparacenary property be deemed to be property capable of being disposed of by him within\n\nthe meaning of the sub-section. As the joint family consisted of Mani Ram and his son, the first appellant, the appellate court gave a decree in favour of the respondent so far as one-half share of items 1 (b) and 2 of the properties are concerned. The counsel for the appellant submitted that the appellate court was in error in determining the interest of the testator as one-half share in the two items of joint family property.\n\nHe submitted that 'according to Mitakshara law except in Madras when there is a partition between the son and his father, mother is entitled to a share equal to that of the son. In support of his contention the learned counsel referred to Mulla's Hindu Law, 14th Ed., p.403, paragraph 315, where it is stated that while the wife cannot demand a partition, bu if a parti.tion does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. To the same effect is the passage in Mayne's Hindu Law, 11th Ed., p. 534, paragraph 434, where it is stated\n\n\"According to the Mitakshara law, the mother or the gradmother is entitled to a share when sons or grandsons divide the family estate between themselves, but she cannot be recognised as the owner of such share until the division is actually made, as sbe has no pre-exis ting right in the estate except a right of maintenance.\" Reference\n\nwas also made to the decisions reported in Dular Koeri v. Dwarkanath Misser(1 ), where it was held that under the Mitakshara law when partition of joint family property takes place during the father's life.- time at the instance of the son, the mother of the son is entitled to a share equal to that of her husband and her son; and she is entitled to have the share separately allotted, and to enjoy that share when so allotted.\n\nIn Sumrun Thakoor v. Chunder Mun Misser & Others, (') it was held that under the Mitakshara law where a paration takes place between a father and a son, the wife of the lather is entitled to a share.\n\nIn Hosbanna Devanna Naik v. Devenna Sannappa Naik and Others('), it was held that a step-mother is entitled to a share on partition beween the father and his sons. In Partap Singh v. Dalip Singh, (4) in a partition between a Hindu father and his son it was held that the wife of the father has a right to a share equal to that of the father or the sons.\n\nIn Madras, tl1ough Mitakshara law is applicable it has been held that on a partition between the sons and the father, the mother is not entitled to any share. (Mulla's Hindu Law, 14th Ed., p. 403-\"Madras State.-ln Southern India the practice of allotting shares upon partition to females has long since become obsolete.\").\n\nSo far as Jammu & Kashmir is concerned there is no decisions regarding the interest of a male Hindu in property. This question as to what is the interest of Mani Ram in the joint family property at the time of his death was not, raised before the High Court. In fact, the case, of first appellant was that the joint family consisted of himself and his father alone, though in the partition suit filed by him he claimed one.- third share conceding that his father and mother are entitled to the other two-third share.\n\nThough the question was not rnised in any of the courts below, we feel that being a pure question of law, interests of justice require that the question be decided.\n\nThe High Court will decide the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his will. In remitting this question to the High Court, we decree he suit of the respondent in respect of item I (a) one-third share in items 1 (b) and 2 of the plaint schudule properties as to that extent her share is not questioned.\n\nThe question as to what is the extent of the interest as regards items 1 (b) and 2 of the plaint schedule properties which can be bequeathed by Mani Ram in favour of the respondent is remitted to the High Court for its determination.\n\nIf the High Court finds that the respondent is entitled to one-third share it will decide accordingly.\n\nIf it comes to the conclusion that Mani Ram was entitled to bequeath a greater share it will grant a decree accordingly.\n\nThere will be no order as to costs-appeal disposed of accordingly.\n\nS.R.\n\n(I) I.L.R. 31 Cal. 234.\n\n(2) I.L.R. 8 Cal. 17.\n\n(3) I.L.R. 48 Bom. 468.\n\n(4) I.L.R. 52 All. 596.\n\nDecree granted.", "total_entities": 57, "entities": [{"text": "LAKSHMI CHAND KHAJURIA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "LAKSHMI CHAND KHAJURIA & ORS", "offset_not_found": false}}, {"text": "ISHROO DEVI", "label": "RESPONDENT", "start_char": 36, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "ISHROO DEVI", "offset_not_found": false}}, {"text": "March 31, 1977", "label": "DATE", "start_char": 49, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "ISHROO DEVI\n\nMarch 31, 1977\n\n[A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 66, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 82, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "s. 27", "label": "PROVISION", "start_char": 199, "end_char": 204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 266, "end_char": 271, "source": "regex", "metadata": {"statute": null}}, {"text": "25th May 1959", "label": "DATE", "start_char": 606, "end_char": 619, "source": "ner", "metadata": {"in_sentence": "strenh of a Will dated 25th May 1959, executed in her favour by one Purohxt Mani Ram, the respondent Smt."}}, {"text": "Purohxt Mani Ram", "label": "OTHER_PERSON", "start_char": 651, "end_char": 667, "source": "ner", "metadata": {"in_sentence": "strenh of a Will dated 25th May 1959, executed in her favour by one Purohxt Mani Ram, the respondent Smt.", "canonical_name": "Purohxt Mani Ram"}}, {"text": "Purohit Mani Ram", "label": "OTHER_PERSON", "start_char": 865, "end_char": 881, "source": "ner", "metadata": {"in_sentence": "It was alleged in the plaint that the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully dispossed her after getting the name of appellant No.", "canonical_name": "Purohxt Mani Ram"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2163, "end_char": 2168, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Hindu Succession Act", "label": "STATUTE", "start_char": 2184, "end_char": 2212, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1'1ani Ram", "label": "OTHER_PERSON", "start_char": 2213, "end_char": 2223, "source": "ner", "metadata": {"in_sentence": "On appeal, the High Court accepted the findings of the trial court and confirmed the decree as regards item 1 (a) of the property but modified the order as regards item 1 (b) and 2 by allowing the claim of the respondent to the extent of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act 1'1ani Ram was entitled to dispose of his interest in the joint family property by Will."}}, {"text": "Mani Ram", "label": "OTHER_PERSON", "start_char": 2810, "end_char": 2818, "source": "ner", "metadata": {"in_sentence": "Jn appeal by certificate to this Court, the appellant contended : (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohibition against alienation introduced by Ordinance \\Vhich caII)e\n\ninto force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of\n\nth~ Will.", "canonical_name": "Mani C Ram"}}, {"text": "Mani C Ram", "label": "OTHER_PERSON", "start_char": 5072, "end_char": 5082, "source": "ner", "metadata": {"in_sentence": "Item I (a) of the Property is the self-acquisition of Mani C Ram and the decree of the appe1late court so far as item No.", "canonical_name": "Mani C Ram"}}, {"text": "Madras", "label": "GPE", "start_char": 5391, "end_char": 5397, "source": "ner", "metadata": {"in_sentence": "(5) Under the Mitaksbara Jaw excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son."}}, {"text": "Jammn\n\n& Kashmir", "label": "ORG", "start_char": 5908, "end_char": 5924, "source": "ner", "metadata": {"in_sentence": "As no decision in respect of the interest of the male Hindu in Jammn\n\n& Kashmir was cited the question is remitted to the High Court for decision as E to what is the extent of the interest as regards items 1 (b) & 2 of the plaint Schedule properties. ["}}, {"text": "s. 27", "label": "PROVISION", "start_char": 6377, "end_char": 6382, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 6398, "end_char": 6432, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "G Mani Ram", "label": "OTHER_PERSON", "start_char": 7136, "end_char": 7146, "source": "ner", "metadata": {"in_sentence": "Admittedly the respondent, will be entitled to 1 /3rd share in respect of item 1 (b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a)~ [406 D-E, 407 E-F]\n\n[The Court remitted the case back for the determination of the interest which G Mani Ram had in the joint family property at the time of his death which he could dispose of by his 'Will and grant a decree accordingly.]"}}, {"text": "Jammu & Kashmir High Court", "label": "COURT", "start_char": 7396, "end_char": 7422, "source": "ner", "metadata": {"in_sentence": "(From the Judgment and Order dated the 12th March, 1968 of the Jammu & Kashmir High Court in Civil First Appeal No."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 7464, "end_char": 7473, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 7475, "end_char": 7486, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants.", "canonical_name": "S. K. Bagga"}}, {"text": "S. Bagga", "label": "LAWYER", "start_char": 7496, "end_char": 7504, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants.", "canonical_name": "S. K. Bagga"}}, {"text": "P. Malhotra", "label": "LAWYER", "start_char": 7530, "end_char": 7541, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, K. J. John and Shri Narain for the respondent."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 7543, "end_char": 7553, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, K. J. John and Shri Narain for the respondent."}}, {"text": "Narain", "label": "OTHER_PERSON", "start_char": 7563, "end_char": 7569, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, K. J. John and Shri Narain for the respondent."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 7635, "end_char": 7643, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKAILASAM, J .-This appeal is preferred by the defendant in the suit on a certificate of fitness granted by the High Conrt of Jammu & Kashmir under Article 133 of the Constitution."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 7782, "end_char": 7793, "source": "regex", "metadata": {"statute": null}}, {"text": "25th May, 1959", "label": "DATE", "start_char": 8131, "end_char": 8145, "source": "ner", "metadata": {"in_sentence": "He executed a will on 25th May, 1959, out of his own free will in favour of the respondent."}}, {"text": "Jammu", "label": "GPE", "start_char": 8295, "end_char": 8300, "source": "ner", "metadata": {"in_sentence": "Purohit Mani Ram died on 24th March, 1960, at Jammu and the resoondent claimed to be the sole owner of the properties. -"}}, {"text": "Janak Lal Sehgal", "label": "OTHER_PERSON", "start_char": 9233, "end_char": 9249, "source": "ner", "metadata": {"in_sentence": "The respondent examined Janak Lal Sehgal, an advocate of the Supreme Court, and the scribe of the will one Bodh Raj.", "canonical_name": "Janak Lal Sehgal"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 9270, "end_char": 9283, "source": "ner", "metadata": {"in_sentence": "The respondent examined Janak Lal Sehgal, an advocate of the Supreme Court, and the scribe of the will one Bodh Raj."}}, {"text": "Bodh Raj", "label": "OTHER_PERSON", "start_char": 9316, "end_char": 9324, "source": "ner", "metadata": {"in_sentence": "The respondent examined Janak Lal Sehgal, an advocate of the Supreme Court, and the scribe of the will one Bodh Raj."}}, {"text": "Janak Lal", "label": "OTHER_PERSON", "start_char": 9527, "end_char": 9536, "source": "ner", "metadata": {"in_sentence": "He saw Mani Ram affix his sig- F nature on the will the words (in vernacular) under which Janak Lal had signed as witness, were under the words (in vernacular) where Purohit Mani Ram had signed.", "canonical_name": "Janak Lal Sehgal"}}, {"text": "Janak Lal", "label": "WITNESS", "start_char": 9633, "end_char": 9642, "source": "ner", "metadata": {"in_sentence": "Janak Lal had given the date with his own hand where he had signed as witness."}}, {"text": "Bodh Raj", "label": "WITNESS", "start_char": 9892, "end_char": 9900, "source": "ner", "metadata": {"in_sentence": "P.W. 2 Bodh Raj, is the scribe of the will."}}, {"text": "Lodra Mani", "label": "WITNESS", "start_char": 10540, "end_char": 10550, "source": "ner", "metadata": {"in_sentence": "P.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja, and that the Maharaja was giving\n\nL. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.) 403\n\nlot of money to Purohit Mani Ram as present."}}, {"text": "Maharaja Pratap Singh", "label": "OTHER_PERSON", "start_char": 10591, "end_char": 10612, "source": "ner", "metadata": {"in_sentence": "P.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja, and that the Maharaja was giving\n\nL. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.) 403\n\nlot of money to Purohit Mani Ram as present."}}, {"text": "Maharaja's Puja", "label": "OTHER_PERSON", "start_char": 10636, "end_char": 10651, "source": "ner", "metadata": {"in_sentence": "P.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja, and that the Maharaja was giving\n\nL. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.) 403\n\nlot of money to Purohit Mani Ram as present."}}, {"text": "Philip Hardless", "label": "WITNESS", "start_char": 10939, "end_char": 10954, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellants a handwriting expert, Philip Hardless, and three witnesses were examined in addition to the first appellant."}}, {"text": "section 27", "label": "PROVISION", "start_char": 12115, "end_char": 12125, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Hindu Succession Act", "label": "STATUTE", "start_char": 12141, "end_char": 12169, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Pai", "label": "OTHER_PERSON", "start_char": 12557, "end_char": 12560, "source": "ner", "metadata": {"in_sentence": "Though the concurrent finding of both the courts below is that the will was a valid one and was executed by Mani Ram of his own free will and when possessed of aU his faculties Mr. Pai, the counsel for the appellants, strenously contended that the finding should not be accepted."}}, {"text": "Mani D Ram", "label": "OTHER_PERSON", "start_char": 15196, "end_char": 15206, "source": "ner", "metadata": {"in_sentence": "The nondisclosure of the execntion of the will is understandable because Mani D Ram did not want anyone particularly his son to know about his dispossessing of the property by will.", "canonical_name": "Mani C Ram"}}, {"text": "Chandavarkar", "label": "JUDGE", "start_char": 19523, "end_char": 19535, "source": "ner", "metadata": {"in_sentence": "Chandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded\n\nns vritti or immoveable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property."}}, {"text": "United Provinces", "label": "GPE", "start_char": 19876, "end_char": 19892, "source": "ner", "metadata": {"in_sentence": "supra) it has been made clear that in the United Provinces the income received as amounts paid by Yajamans at their discretion either by way of charity or by way of remuneration for personal services rendered by the priest, cannot be claimed as of right, and cannot amount to a family property."}}, {"text": "Sulaiman", "label": "JUDGE", "start_char": 20143, "end_char": 20151, "source": "ner", "metadata": {"in_sentence": "Chief Justice Sulaiman expressed his view that the income received as amounts paid by people at their discretion eiher by way of charity or by way of remuneration for personal services rendered cannot be claimed as of right amount to family property."}}, {"text": "Mukerji", "label": "JUDGE", "start_char": 20381, "end_char": 20388, "source": "ner", "metadata": {"in_sentence": "Mukerji, J. in a concurring judgment after distinguishing\n\nI. I.LR."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 20758, "end_char": 20778, "source": "ner", "metadata": {"in_sentence": "We agree with the view thus expressed by the Allahabad High Court and find that the income from the practice of a hereditary profession will not be joint family property."}}, {"text": "section 27", "label": "PROVISION", "start_char": 21974, "end_char": 21984, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 22000, "end_char": 22034, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 27", "label": "PROVISION", "start_char": 22130, "end_char": 22140, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Hindu Succession Act, 1956", "statute": "Kashmir Hindu Succession Act, 1956"}}, {"text": "Mitakshara", "label": "OTHER_PERSON", "start_char": 22904, "end_char": 22914, "source": "ner", "metadata": {"in_sentence": "He submitted that 'according to Mitakshara law except in Madras when there is a partition between the son and his father, mother is entitled to a share equal to that of the son."}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 23111, "end_char": 23116, "source": "ner", "metadata": {"in_sentence": "In support of his contention the learned counsel referred to Mulla's Hindu Law, 14th Ed.,"}}, {"text": "Mayne", "label": "OTHER_PERSON", "start_char": 23459, "end_char": 23464, "source": "ner", "metadata": {"in_sentence": "To the same effect is the passage in Mayne's Hindu Law, 11th Ed.,"}}, {"text": "Jammu & Kashmir", "label": "GPE", "start_char": 25189, "end_char": 25204, "source": "ner", "metadata": {"in_sentence": "So far as Jammu & Kashmir is concerned there is no decisions regarding the interest of a male Hindu in property."}}]}
{"document_id": "1977_3_408_411_EN", "year": 1977, "text": "• A\n\nSTATE OF PUNJAB & ANR. v.\n\nPREM SUKHDAS & ORS.\n\nApril 1, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA AND P. S. K.AILASAM, JJ.]\n\nPunjab Professions. Trades, Callines &:: Employnrents Taxation Act, 1956- SS. 2(b) and 3-Scope of. ,\n\nSection 3 of the Punjab Professions, Trades, Callings and Employment& Taxation Act, 1956, imposes a tax in respect of a profession, trade, calling or employment carried on or followed within the State. Section 5 lays down the manner of determination of tax. on the gross income. The term \"total gros&- income\" is defined by s. 2 of the Act as \"aggregate gross income derived from various professions, trades, callings and employments\". The words \"whether such profession or calling is followed, trade is carried on or employment iswithin or outside the State\" were added to the section by an amendment of 1962.\n\nBefore the amendment of s. 2 (b), the High Court had taken the view th•t in determining the aggregate gross income, only the income derived within tire State by a calling, occupation, trade or profession must be taken into account for the purposes of taxation.\n\nOn the question whether the Act restricts taxation of income made within the State.\n\nAllowing the State's appeal and remitting the case to tho High Court\n\nHELD : By reading the provisions of s. 5 and s. 2 together, it is clear that the determination in accordance with the scale laid down in the Schedule, of the aggregate gross income on which tax is assessed, will have to take into account the income of the individual concerned earned both inside and outside. the S1aie.\n\n[409 GJ\n\n1 (a) The High Court has clearly erred in interpreting s. 3 in such a manner as to make s. 2(b) read with s. 5 of the Act, useless in determining the tax in accordance with the gradation laid down in the Schedule to the Act. This amounts nothing short of legislation.\n\n[410 E-F]\n\n(b) The only condition for making a person taxable under the Act is that he must also have some profession, trade, calling or occupation which is to be taxed, which he carries on within the State. It does not matter whethet the person is employed or carries on the same or other profession, trade, or calling outside the State also. Section 3 is only meant to indicate that the person who is to be made liable had carried on some profession, calling, trade, or occupation within the State and it has nothing to do with the calculation of the aggregate amount of the tax to be levied. That is dealt with by s. 5 read with\n\ns. 2(b) as amended. Io determining the amount of tax, the amount an assessee\n\nmakes outside must also be added to what he makes inside the State. His total gross income determines only his grade or amount of tax he has to pay. His subjection to a profession or cal1ing tax depends only on the fact that he carriei on some business or has some trade or calling within the State. [410- A-CJ\n\n2. The principle that v.here a provision is capable of one of two interpretations, the interpretation which validates rather the one which may invalidate a provision applies only where two views are possible. It cannot be pushed so far as to alter the meaning of the clear words used in an enactment and to repeal statutory provisions by making them useless without holding them to be void. [ 410 Fl\n\n[The case was remanded to the High Court for deciding the validity of the amendment made to s. 2(b) of the Act]\n\nCIVIL APPELLATE JuRISDICTmN : Civil Appeal Nos. 2152-2153 A. of 1968\n\n(From the Judgments and Orders dated the 25.2.1966 of the Punjab andi Haryana High Coun in Civil Writ Nos. 2588 and 2392/ 1964)\n\nV. C. Mahajan for the appellants (in CA 2152).\n\nK. S. Suri and 0. P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153.\n\nThe Judgment of the Court was delivered by\n\nBEG, C. J.-The only question decided by the High Court of Punjab\n\n& Haryana in the cases now before us by special leave was whether section 3 of the Punjab Professions, Trades, Callings andi Employments Taxation Act, 1956 (hereinafter referred to as 'the Act') restricts taxation upon persons in Punjab to the income made within the State Dof Punjab.\n\nThis section reads as follows :-\n\n\"3. Levy of tax-Every person who carried on trade either by himself or by an agent or representative, or who follows a profession or calling, or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a part thereof a tax in respect of such profession, trade, calling or employment :\n\nProvided that for the purpose of this section a person on leave shall be deemed to be a person in employment\".\n\nSection 4 of the Act provides for taxation in accordance with a schedule annexed to it.\n\nSection 5 lays down the manner of determi- F nation of the tax which is to be assessed on the total \"gross income\".\n\nTh~ term \"total gross income\" is defined by s. 2 of the Act as \"aggregate gross income derived from various professions, trades, callings and employment\".\n\nThe Legislature amended this provision by adding in 1962, \"Whether such profession or calling is followed, trade is carried on or employment is, within or outside the State of Punjab\" to the deifinition.\n\nThe annexed schedule, conformably with the pro- G visions of Article 276 of the Constitution does not tax any person, under the scale laid down in the schedule, to an extent more than Rs. 250/- per annum.\n\nNevertheless, it is clear, by reading the provisions of s. 5 and s. 2 together, that the determination in accordance with the scale laid down in this schedule of the aggregate gross income on which tax is assessed, will have to take into account the income of the individual concerned earned both inside and outside Punjab.\n\nThe result is that the only condition for making a person, taxable under the Act is that he must also have some profession, trade, calling\n\nSUPREME COURT REPORTS\n\n(1977] 3 S.C.R.\n\nor occupation which is to be taxed, which he carries on within the State of Punjab. It does not matter whether that person is employed or carries on the same or some other profession trade, or calling outside Punjab also.\n\nSection 3 is only meant to indicate that the person who is to be made liable has carried on some profession, calling, trade, or occupation within Punjab. It does nothing more. It has nothing to do with the calculation of the aggregate amount of the tax to be levied.\n\nThat is dealt with by s. 5 read with s. 2 (b) of the Act as amended.\n\nAnd, in determining the amount of tax which .an assessee has to pay or the grade in which he falls, the amount he makes outside must also be added to what he makes inside Punjab.\n\nHis total gross income detrmines only his grade or amount of tax he has to pay.\n\nHis subjection to a profession or calling tax depends only on the fact that he carries on some business or has some trade or calling \"within the State of Punjab\". The words qualifying the whole or a part of the calling which determines only the taxability of the person cannot possibly, on the language used, fix also the grade of taxation in which the individual falls.\n\nWe, however, find that the Punjab High Court, in accordance with a view it had been consistently taking even before the amendment of s. 2(b) of the Act, has held that, in determining the aggregate gross income, only the income made within Punjab by the calling, occupation, trade, or profession carried on mu's! be taken into account.\n\nWe think that this view of the Punjab High Court is based on a very forced interpretation given to the clear words of s. 3 of the Act, probably because it thought it necessary to do so to make the effect of the section correspond to provisions of Article 245 (1) of the Constitution.\n\nWe think that the Punjab High Court has clearly erred in interpreting s. 3 in such a way as to make s. 2(b), read with s. 5 of the Act, useless in determining the tax in accordance with the gradation laid down in the schedule 2 of the Act.\n\nThis amounts to nothing short of legislation.\n\nWe think that the view is an impossible one.\n\nThe principle that, where a provision is capable of one of two interpretations, the interpretation which validates rather than one which may invalidate a provision applies only where two views are possible.\n\nIt cannot be pushed so far as to alter the meanings of the clear words used in an enactment and to, in effect, repeal statutory provisions by making them useless without holding them to be void.\n\nIt is true that the question of the validity of the provisions of the Act on the ground that they contravene Article 245 ( 1) of the Constitution was also raised in the High Court, but, the High Court left this question open as it held in favour of the assessee on the first question.\n\nAs the first question was decided by clearly misinterpreting the provisions of the Act as they stand, we have to allow these appeals.\n\nA Division Bench of the High Court, in the judgment under, appeal, had purported to follow an earlier Division Bench decision of the High Court in Beli Ram v. The Assessing Authority('), which had interpreted the provisions of s. 3 of the Act as the Act stood before 1he amendment of s. 2 in the manner indicated above.\n\nAs the High\n\n(I) 1960 P.L.R. 846.\n\nCourt had not decided the question of validity of the amendment these A cases cannot be disposed of without deciding that question.\n\nWe do not propose to express any opinion on this question as we do not have the benefit of the High Court's views on it.\n\nIn the circumstances mentioned above, we set aside the judgments and orders of the High Court on these cases. We send the cases back to the High Court for deciding the question of validity of the amend- B ment to s. 2 of the Act.\n\nThe parties will bear their own costs.\n\nP.B.R.\n\nAppeals allowed.", "total_entities": 60, "entities": [{"text": "A\n\nSTATE OF PUNJAB & ANR", "label": "PETITIONER", "start_char": 2, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB & ANR", "offset_not_found": false}}, {"text": "PREM SUKHDAS & ORS", "label": "RESPONDENT", "start_char": 32, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "PREM SUKHDAS & ORS", "offset_not_found": false}}, {"text": "April 1, 1977", "label": "DATE", "start_char": 53, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "April 1, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA AND P. S. K.AILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Employnrents Taxation Act, 1956", "label": "STATUTE", "start_char": 166, "end_char": 197, "source": "regex", "metadata": {}}, {"text": "SS. 2(b) and 3", "label": "PROVISION", "start_char": 199, "end_char": 213, "source": "regex", "metadata": {"linked_statute_text": "Employnrents Taxation Act, 1956", "statute": "Employnrents Taxation Act, 1956"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 227, "end_char": 236, "source": "regex", "metadata": {"linked_statute_text": "Employnrents Taxation Act, 1956", "statute": "Employnrents Taxation Act, 1956"}}, {"text": "Taxation Act, 1956", "label": "STATUTE", "start_char": 297, "end_char": 315, "source": "regex", "metadata": {}}, {"text": "Section 5", "label": "PROVISION", "start_char": 429, "end_char": 438, "source": "regex", "metadata": {"linked_statute_text": "Taxation Act, 1956", "statute": "Taxation Act, 1956"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 551, "end_char": 555, "source": "regex", "metadata": {"linked_statute_text": "Taxation Act, 1956", "statute": "Taxation Act, 1956"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 863, "end_char": 867, "source": "regex", "metadata": {"linked_statute_text": "Taxation Act, 1956", "statute": "Taxation Act, 1956"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1292, "end_char": 1296, "source": "regex", "metadata": {"linked_statute_text": "Taxation Act, 1956", "statute": "Taxation Act, 1956"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 1301, "end_char": 1305, "source": "regex", "metadata": {"linked_statute_text": "Taxation Act, 1956", "statute": "Taxation Act, 1956"}}, {"text": "S1", "label": "PROVISION", "start_char": 1569, "end_char": 1571, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1641, "end_char": 1645, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 1674, "end_char": 1681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1692, "end_char": 1696, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 2199, "end_char": 2208, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2472, "end_char": 2476, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 2488, "end_char": 2495, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 3371, "end_char": 3378, "source": "regex", "metadata": {"statute": null}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 3591, "end_char": 3604, "source": "ner", "metadata": {"in_sentence": "2588 and 2392/ 1964)\n\nV. C. Mahajan for the appellants (in CA 2152)."}}, {"text": "K. S. Suri", "label": "LAWYER", "start_char": 3639, "end_char": 3649, "source": "ner", "metadata": {"in_sentence": "K. S. Suri and 0."}}, {"text": "0. P. Sharma", "label": "LAWYER", "start_char": 3654, "end_char": 3666, "source": "ner", "metadata": {"in_sentence": "K. S. Suri and 0."}}, {"text": "E. C. Agrawa", "label": "LAWYER", "start_char": 3704, "end_char": 3716, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "Hardev Singh", "label": "LAWYER", "start_char": 3746, "end_char": 3758, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "R. S. Sodhi", "label": "LAWYER", "start_char": 3763, "end_char": 3774, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "R. K. Mathur", "label": "LAWYER", "start_char": 3802, "end_char": 3814, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "V. Goswami", "label": "LAWYER", "start_char": 3819, "end_char": 3829, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "N. N. Goswarny", "label": "LAWYER", "start_char": 3857, "end_char": 3871, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "A. Minocha", "label": "LAWYER", "start_char": 3876, "end_char": 3886, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153."}}, {"text": "BEG", "label": "JUDGE", "start_char": 3960, "end_char": 3963, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C. J.-The only question decided by the High Court of Punjab\n\n& Haryana in the cases now before us by special leave was whether section 3 of the Punjab Professions, Trades, Callings andi Employments Taxation Act, 1956 (hereinafter referred to as 'the Act') restricts taxation upon persons in Punjab to the income made within the State Dof Punjab."}}, {"text": "High Court of Punjab\n\n& Haryana", "label": "COURT", "start_char": 4004, "end_char": 4035, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C. J.-The only question decided by the High Court of Punjab\n\n& Haryana in the cases now before us by special leave was whether section 3 of the Punjab Professions, Trades, Callings andi Employments Taxation Act, 1956 (hereinafter referred to as 'the Act') restricts taxation upon persons in Punjab to the income made within the State Dof Punjab."}}, {"text": "section 3", "label": "PROVISION", "start_char": 4092, "end_char": 4101, "source": "regex", "metadata": {"statute": null}}, {"text": "Callings andi Employments Taxation Act, 1956", "label": "STATUTE", "start_char": 4137, "end_char": 4181, "source": "regex", "metadata": {}}, {"text": "Punjab", "label": "GPE", "start_char": 4256, "end_char": 4262, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C. J.-The only question decided by the High Court of Punjab\n\n& Haryana in the cases now before us by special leave was whether section 3 of the Punjab Professions, Trades, Callings andi Employments Taxation Act, 1956 (hereinafter referred to as 'the Act') restricts taxation upon persons in Punjab to the income made within the State Dof Punjab."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 4813, "end_char": 4822, "source": "regex", "metadata": {"linked_statute_text": "Callings andi Employments Taxation Act, 1956", "statute": "Callings andi Employments Taxation Act, 1956"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 4902, "end_char": 4911, "source": "regex", "metadata": {"linked_statute_text": "Callings andi Employments Taxation Act, 1956", "statute": "Callings andi Employments Taxation Act, 1956"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5063, "end_char": 5067, "source": "regex", "metadata": {"linked_statute_text": "Callings andi Employments Taxation Act, 1956", "statute": "Callings andi Employments Taxation Act, 1956"}}, {"text": "State of Punjab", "label": "GPE", "start_char": 5342, "end_char": 5357, "source": "ner", "metadata": {"in_sentence": "The Legislature amended this provision by adding in 1962, \"Whether such profession or calling is followed, trade is carried on or employment is, within or outside the State of Punjab\" to the deifinition."}}, {"text": "Article 276", "label": "PROVISION", "start_char": 5441, "end_char": 5452, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5642, "end_char": 5646, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5651, "end_char": 5655, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6314, "end_char": 6323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 6604, "end_char": 6608, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6619, "end_char": 6623, "source": "regex", "metadata": {"statute": null}}, {"text": "State of", "label": "GPE", "start_char": 7058, "end_char": 7066, "source": "ner", "metadata": {"in_sentence": "His subjection to a profession or calling tax depends only on the fact that he carries on some business or has some trade or calling \"within the State of Punjab\"."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 7312, "end_char": 7329, "source": "ner", "metadata": {"in_sentence": "We, however, find that the Punjab High Court, in accordance with a view it had been consistently taking even before the amendment of s. 2(b) of the Act, has held that, in determining the aggregate gross income, only the income made within Punjab by the calling, occupation, trade, or profession carried on mu's!"}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 7418, "end_char": 7425, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7739, "end_char": 7743, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 245", "label": "PROVISION", "start_char": 7868, "end_char": 7879, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7976, "end_char": 7980, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(b)", "label": "PROVISION", "start_char": 8006, "end_char": 8013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8025, "end_char": 8029, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 245", "label": "PROVISION", "start_char": 8753, "end_char": 8764, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9292, "end_char": 9296, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9349, "end_char": 9353, "source": "regex", "metadata": {"statute": null}}, {"text": "High\n\n(I) 1960 P.L.R. 846", "label": "COURT", "start_char": 9393, "end_char": 9418, "source": "ner", "metadata": {"in_sentence": "As the High\n\n(I) 1960 P.L.R. 846."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9889, "end_char": 9893, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_412_417_EN", "year": 1977, "text": "KANTA GOEL\n\nB. P. PATHAK & ORS.\n\nApril 1, 1977\n\n(V. R. KRISHNA IYER, R. S. SARKARJA AND JASWANT SINGH, JJ.)\n\nDelhi Rent Control A.ct 19.58-Sec. 2(c)(l)-14--Go.,..1rnment officer required to vacate Government premistJ--Whether can obtain possession of two dwelling house3 let out to 1wo different tenant:r-Whether a co-owner can file a suit to evict a tenant-Definition of a landlord.\n\nThe respondent no. 1 is an Under Secretary in the Central Government. He WM in occupation of residential premises allotted to him by the Central Government and was required by the Government order to vacate such residential accommodation on the ground that he owned in Delhi a residential accommodation in his own name at Shakti Nagar. The Shakti Nagar House is a two storeyed house. 'fhe first floor was let out to the appel1ant-tenant and the ground floor to another tenant.\n\nRelying on section 14A of the Delhi Rent Control Act, 1958, the respondent evicted the tenant on the ground floor. Thereafter, the re8pondent sought eviction of the appellant on the same ground. 'fhe Controller directed eviction refusing leave to the tenant to contest the application for eviction.\n\nThe Revision Application filed by the appellant before the High Court failed.\n\nIn appeal by special leave the appellant contended :\n\n(1) In view of the eviction of the tenant on the ground floor the right of the respondent to evict the tenant under s. 14A was exhausted.\n\n(2) The respondent no. l claims to be a legatee of the deceased landlord uuder a Wi11.\n\nHe has not got the \\Vill probated.\n\n(3) Respondent no. 1 is only one of the co-o, vners and, therefore, cannot file the application for eviction. ( 4) The respondent no. 1 has not let out the premises to the appellant and the premises does not stand in the name of the respondent no. 1.\n\nAt the hearing, the parties settled their dispute by agreeing that the appellant would vacate the first floor premises consisting of 4 rooms and shift to the ground floor and respondent no. 1 would be handed over the possession of the first :floor. The parties also agreed to certain adjustment in the rent.\n\nDisposing of the appeal in terms of the compromise the Court observed :\n\n(1) The landlord cannot use the same weapon of s. 14A in getting two dwelling houses vacated. It is contrary to the intendment of ~. 14A. The object of s. 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him.\n\nThis is made clear by the proviso to s. 14A(l) which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course, it gives choice to the landlord to indicate the particular house among a plurality ov.rncd by him, the possession of which he intends to recover. [417 A-D]\n\n(2) A co-owner is as much an owner of the entire property as any sole owner of the property. He owns every part of the composite property along with others and it cannot be said that he is only a part owner. The absence of other co-owners on record cannot disentitle the first respondent from suing for eviction. From the definitien of landlord in s. 2(c) and tenant in s. 2(1) when read in the context of the Rent Control Law is the simple sense of the situation is that there should be a building which is let. There must be a landlord who\n\ncollects rent and a tenant \\\\tho pays it to the one whom he recognises land- A lord.\n\nThe complications of estoppel or the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported in the proceedings under the Rent Control Law, tried by special Tribunals under a special statute.\n\nThe Court left open the question if some co-owner seek eviction of a tenant and others i _ oppose it whether such application would be maintainable.\n\n(416 C-E)\n\nClvIL APPELLATE JURISDICTION : Civil Appeal No. 764 of 1977.\n\n(Appeal by Special Leave from the Judgment and Order dated the 21st January 1977 of the Delhi High Court in Civil Revision No. 654 of 1976).\n\nF. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant\n\nPrem Malhotra, for respondent No. 1\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-So heartening to the judges' bosom is the happy ending of a bitterly fought litigation where the law is declarecl\n\nby the Court and justice is accomplished by the parties settling the differences, assisted by activist judicial suggestions and promoted by constructive counselling by advocates.\n\nSuch is the pleasing culmina- 0 tion cl this case which relates to an ejectment proceeding under section 14A of the Delhi Rent Control Act, 1958 (Act 59 of 1958).\n\nThe Controller directed eviction refusing leave to the tenant to contest the application for eviction.\n\nThe High Court, in the revision filed\n\nb) the tenant, went into an elaborate discussion on many matters but somehow missed a plea fatal to the landlord's claim and affirmed the relief of eviction although on different grounds. The aggrieved tenant E sought special leave to. appeal which was granted and, thanks to tho landlord appearing by caveat even at the preliminary hearing, leave was granted and the appeal itself was heard the very next day. This at the Supreme Court level quick justice has been meted out and fortunately our judgment has resulted in a re-adjustment between the parties and, hopefully, the healing of the wounds of litigation.\n\nA pro tracted forensic proceeding makes foes of friends, but a settlement ofl F the dispute in accordance with law and justice makes friends of foes.\n\nSome facts need to be narrated for getting the hang of the case and the issues of law raised.\n\nThe respondent is an Under Secretary to Government in the Housing Ministry. He was in occupation of residential premises allotted to him by the Central Government and was required by government order to vacate such residential accommoda- G tion on the ground that he owned in Delhi a residential accommodation in his own name.\n\nThe building we are concerned with i~ 23/6, Shakti Nagar. It is a two-storeyed house but the litigation centres round part of the first-floor.\n\nThe whole building belonged to ono Pandit Saraswati Das who let out a portion of the first floor consisting of 4 rooms and a small enclosure somewhere in August 1968 to the appellant.\n\nShri Das died in 1972 leaving behind the 1 sf respon- H dilnt, two other sons (respondents 2 & 3) and a daughter (respondent\n\n4). It may be stated even here that the proceeding before the Controller was started by the 1st respondent and an objection was raised\n\nby the appellant that the other heirs of the late Das were necessary parties they were not impleaded at this stage although the Controller orderl'<l eviction over-ruling the objection.\n\nThe High Court however, irupleaded the other two sons and the only daughter (respondents 2 to 4) aud taking the view that their presence was necessary for the maintainability of the action, the learned Judge decreed eviction.\n\nA crucial objection, lethal to the case of the landlord, considered by the Controller but negatived by him, was raised in the revision petition but was not adverted to or adjudicated upon by the High Court.\n\nBefore us Shri Nariman has pressed it again and the fate of this case, so far as we are concerned, rests on the validity of that point. The landlord-1st respondent, after receiving the order from government to vacate, as contemplated in section 14A of the Act, applied for eviction of another tenant who was occupying a three-room tenement on the first floor of the same building.\n\nIn fact, the first floor of the house consists of two dwelling apartments as it were, one consisting of three rooms and the other of 4 rooms.\n\nBy definition, 'premises means auy part of a building which is, or is intended to be, let separately for use as a residence ........ In the present case the three room tenement being part of a building and let separately to a tenant, fell within the definition of 'permises'.\n\nAdmittedly, the landlord exercise his right \\Jnder section 14A to recover immediately passession of those premises.\n\nHe succeeded, secured possession and kept it vacant.\n\nEven at the present time those premises which are adjacent to the suit premises are in his vacant possession.\n\nShri Narimau's argument is that while it is open to a landlord who is a government servant directed to vacate allotted premises, and clothed with a new right to recover possession of any premises let out by him, to exercise it once, he cannot repeat the exercise ad libitem and go on evicting every tenant of his by using the weapon of section 14A.\n\nHe relies on the proviso to section 14A(l) to reinforce his submission and we will deal with it presently.\n\nTwo other contentions urged by the appellant are t11at the first respondent is not his landlord and therefore is disentitled to evict him, under the Act, and secondly, the premises are not in his name and have not been let out by Jum.\n\nIn any case, the claim of the first respondent that the building in its entirety had been allotted by the late Shri Das by his will to the 1st respondent and his brother the 3rd respondent and that, subsequently, there had been an oral partition between the two whereunder the first floor was allotted in toto to the 1st respondent making him the sole owner and therefore the exclusive landlord, was contested by the appellant-tenant and this nlea should have been allowed to be raised by grant of leave under section 25B by the Controller.\n\nThe presence of the co-heirs at the High Court le\"el was inconsequential. according to the appellant, and their absence at the trial stage vitiated the order of the Controller.\n\nWe will examine t11ese contentions briefly.\n\nThe scheme of the statute is plain and has been earlier explained b_y this Court with special reference to sections 14A and 25B.\n\nThe government servant who owns his house, lets it out profitably. and\n\noccupies at lesser rent official quarters has to quit but, for that very purpose to be fulfilled, must be put in quick possession of his premises.\n\nThe legislative project and purpose turn not on niceties of llttle ver• balism but on the actualities of rugged realism, and so, the construction of section 14A(l) must be illumined by the goal, though guided by the word. We have, therefore, no hesitation in holding that section 14A(l) is available as a ground, if the premises are owned by him as inherited from propositus in whose name the property stood. 'In his name, and \"let out by him', read in the spirit of the provision and without violence to the words o; f the section, clearly convey the idea\n\ntht the premises must be owned by him directly and the lease must be under him directly, which is the case where he, as heir, steps into his father's shoes who owned the building in his own name and let it out himself.\n\nHe represents the former owner and lessor and squarely' falls within section 14A.\n\nThe accent on 'name' is to pre-empt the common class of benami evasions, not to attach special sanctity to nominalism.\n\nRefusing the rule of ritualism we accept the reality of the ownership and landlordism as !]ie touchstone.\n\nNor do we.set much store by the submission that the !st respondent\n\nis not a landlord, being only a co-heir and the will in his favour hav- D ing been disputed.\n\nEqually without force in our view is the plea tlutt one co-lessor cannot sue for eviction even if the other co-lessors ,'have no objection. Section 2(e) of the Act defines 'landlord' thus :\n\n\"2 ( e) 'Landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or E on behalf of, or for the benefit of, any other person or as a trustee, guardi•an or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.\"\n\n'Tenant', by definition [s. 2(1)] means any person by whom or on , M1hose account or behalf the rent of any premises is payable.\n\nRead F in the context of the Rent Control law, the simple sense of the situation is that there should be a building which is let.\n\nThere must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord.\n\nThe complications of estoppcl or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law, tried by special Tribunals under a special statute. In this case, rent G was being paid to the late Das who had let out to the appellant, on the death of the former, the rent was being paid by the 1st respondent who signed his name and added that it was on behalf of the estate of the deceased Das. At a later stage the rent was being paid to and the receipts issued by the 1st respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been H )'.l'aying the rent to the Jst respondent.\n\nTherefore, the latter fell with- .in the definition of 'landlord' for the purposes of the Act.\n\nWe are\n\n12-436SCI/77\n\nnot impressed with the investigation into the Jaw of real property and estoppel between )andlord and tenant, Shri Nariipa11 invited us to make.\n\nA fair understanding of the relationship between the parites leaves little room for doµbt that the appellant was the tenant of the premises.\n\nThe 1st respondent, together with the other respondents, constituted the body of landlords arul, by consent, implicit or other\n\nwise, of the plurality of landlords, one of them representing them all, was colkcting rent.\n\nIn short, he fµµctioned, for all practical purposes as the \\arullord, and was therefore entitled to institute proceedings qua landlord.\n\nThis Court, in Sri Ram Pasricha(') clarified that a coowner is as much an owner of the entire property as any sole owner of the property is : \"Jurisprudentially, it is not correct to say that a coowner of property is not its owner.\n\nHe owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property . . . . It is, therefore, not possible to 'accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaniqg of section 13 (1 )(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of sectiol! 13(1) (f) as[ong as he is a co-owner of the property, being at .the same time acknowledged landlord of the defendants.\" That case also \\Vas one for eviction uncjer the rent control law cf Bengal.\n\nThe law having been thus put beyond doubt, the contention that the abseqce of the other ccr.owner an record disentitled the first respondent froll! suing for eviction, fails.\n\nWe are not called upon to consider the piquant situation that might arise if some\n\nof the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co\"owncr.\n\nShri Nariman urged that the \"~II had not been proved and that he had not been given an opportunity to establish his challenge of the will of Shri Das.\n\nJn the f!igh Court t4e other co-heirs were parties and there is nothing on r!\"cord to show that they objectecl to the claim of the 1st respondent to the first jjoor oq the strength of t)le will from his father.\n\nAn objection. for the sah of an objection which has qo realistic foundation, c; mnot be eqtertained seriogsly for the saJce of prpcessual punctiliousness.\n\nWe cjo not agree with the contrntion.\n\nThe last, and yet the lethal objection which had been lost sight of in the High Court, although raised there, loomed large before this Court, in Shd Nariman's arguments. The admitted fuct is that on the same ground of the government's order to vacate, the first respondent had eicted a dwelling house on the first floor and is keeping it vacant.\n\nHe is again using the same order to vacata passed by the government to evict the appellant's dwelling house. This is obviously contrary to the intendment of section l 4A ancl is interdicted by the provisu to section 14A(l). It is true that when an officer is sought to be evicted by the government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provjd,\n\n(1) (1976) 4 s.c.c. 1 ~4\n\ned by section 14A read with section 28B of the Act.\n\nBut this emergency provision available merely to put the government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants.\n\nThe right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him.\n\nTiiis is m'lde clear by the proviso wllii:h makes plain that the section shall not be coµstrue4 as co11ferring a right on a landlord pwing two or more dwelling houses to recover possession of more thn oiie dwelling house.\n\nOf course it gives him the choice since the proviso states that it shall be lawful for sµch hmdlord to indicate the particqlar dwel!iqg house among a plurality owned by him, possession of which he intends to recover.\n\nHe can ordinarily recover one dwelli11g house but no more. In the presi; nt case, admittedly Ile has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under section 14A(l). It\n\n110cessari!y follows that he cannot use section 141\\ for cvj9ting the tenant-appellant from :mother dwelling house. 011 the !st grmmd, therefore, the appeal ml!st be allowed, although in the circumstmwes we direct tile parties to bear their costs throughoµt.\n\nCounsel on both sides, 011 t!ie sl)ggestion by the court, calrnlated to produce a salutary relationship between the parties, agreed that the tljree, room dwelling house which lies vacant (having been evicted\n\nun<ler section 14A) will be given possession of to the appellant in eJichange for the appellant making over possession of the 4-room apariment-the premises involved in the present case-together with the appurtenant space.\n\nThe appellant has agreed to pay a sum of Rs. ZSO/- per month by way of rent for the adjacent three-room apartment into which he will move, within on.e moqth from today\n\nanf! surrender posS!'ssion of the 4-room apartment simultaneously.\n\nIn qse the parties are iable to adjust their differences and the 1st\n\nrepoqgnt makes over the additional space attached to the 4-room tenement for the use of (l)e appellant, he wi!J pay an e; o; tra sum of Rs. 75/- per me11sem or ot1'er p, egotiated figure.\n\nOn these terms\n\nijgree~ IP before us \\)y cpµnsel on both sides, after taking instructions from their parties, we direct that the lst respon<jen( go mal!:e over possession of the t]j, ee-room .dwelling house on the !lrs( floor aqd take ill ewlJ; mge the •hrnom dw~)ling ho11se which is tile subjeet matter of the present eviction proceedings.\n\nWe record this undertaking as indicated above and with this 11), Qdjjjcation, 111J.ow t!le appeal.\n\nP.ff, p.\n\nAppeal allowed.", "total_entities": 56, "entities": [{"text": "KANTA GOEL", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "KANTA GOEL", "offset_not_found": false}}, {"text": "B. P. PATHAK & ORS", "label": "RESPONDENT", "start_char": 12, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "B. P. PATHAK & ORS", "offset_not_found": false}}, {"text": "April 1, 1977", "label": "DATE", "start_char": 33, "end_char": 46, "source": "ner", "metadata": {"in_sentence": "April 1, 1977\n\n(V. R. KRISHNA IYER, R. S. SARKARJA AND JASWANT SINGH, JJ.)"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 49, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Delhi", "label": "GPE", "start_char": 109, "end_char": 114, "source": "ner", "metadata": {"in_sentence": "Delhi Rent Control A.ct 19.58-Sec."}}, {"text": "Sec. 2(c)(l)", "label": "PROVISION", "start_char": 139, "end_char": 151, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 874, "end_char": 885, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 893, "end_char": 921, "source": "regex", "metadata": {}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 1412, "end_char": 1418, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 2240, "end_char": 2246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A", "label": "PROVISION", "start_char": 2345, "end_char": 2351, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14A(l)", "label": "PROVISION", "start_char": 2629, "end_char": 2638, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 3339, "end_char": 3346, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 3361, "end_char": 3368, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3673, "end_char": 3697, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ClvIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4006, "end_char": 4034, "source": "ner", "metadata": {"in_sentence": "(416 C-E)\n\nClvIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 4156, "end_char": 4172, "source": "ner", "metadata": {"in_sentence": "(Appeal by Special Leave from the Judgment and Order dated the 21st January 1977 of the Delhi High Court in Civil Revision No."}}, {"text": "F. S. Nariman", "label": "LAWYER", "start_char": 4210, "end_char": 4223, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant\n\nPrem Malhotra, for respondent No."}}, {"text": "D. P. Mukherjee", "label": "LAWYER", "start_char": 4225, "end_char": 4240, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant\n\nPrem Malhotra, for respondent No."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 4245, "end_char": 4261, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant\n\nPrem Malhotra, for respondent No."}}, {"text": "Prem Malhotra", "label": "LAWYER", "start_char": 4282, "end_char": 4295, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant\n\nPrem Malhotra, for respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 4363, "end_char": 4375, "source": "ner", "metadata": {"in_sentence": "1\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-So heartening to the judges' bosom is the happy ending of a bitterly fought litigation where the law is declarecl\n\nby the Court and justice is accomplished by the parties settling the differences, assisted by activist judicial suggestions and promoted by constructive counselling by advocates."}}, {"text": "section 14A", "label": "PROVISION", "start_char": 4772, "end_char": 4783, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 4791, "end_char": 4819, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 5405, "end_char": 5418, "source": "ner", "metadata": {"in_sentence": "This at the Supreme Court level quick justice has been meted out and fortunately our judgment has resulted in a re-adjustment between the parties and, hopefully, the healing of the wounds of litigation."}}, {"text": "Central Government", "label": "ORG", "start_char": 5987, "end_char": 6005, "source": "ner", "metadata": {"in_sentence": "He was in occupation of residential premises allotted to him by the Central Government and was required by government order to vacate such residential accommoda- G tion on the ground that he owned in Delhi a residential accommodation in his own name."}}, {"text": "Pandit Saraswati Das", "label": "OTHER_PERSON", "start_char": 6350, "end_char": 6370, "source": "ner", "metadata": {"in_sentence": "The whole building belonged to ono Pandit Saraswati Das who let out a portion of the first floor consisting of 4 rooms and a small enclosure somewhere in August 1968 to the appellant."}}, {"text": "Das", "label": "OTHER_PERSON", "start_char": 6505, "end_char": 6508, "source": "ner", "metadata": {"in_sentence": "Shri Das died in 1972 leaving behind the 1 sf respon- H dilnt, two other sons (respondents 2 & 3) and a daughter (respondent\n\n4)."}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 7398, "end_char": 7405, "source": "ner", "metadata": {"in_sentence": "Before us Shri Nariman has pressed it again and the fate of this case, so far as we are concerned, rests on the validity of that point.", "canonical_name": "Nariman"}}, {"text": "section 14A", "label": "PROVISION", "start_char": 7620, "end_char": 7631, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 8236, "end_char": 8247, "source": "regex", "metadata": {"statute": null}}, {"text": "Narimau", "label": "OTHER_PERSON", "start_char": 8472, "end_char": 8479, "source": "ner", "metadata": {"in_sentence": "Shri Narimau's argument is that while it is open to a landlord who is a government servant directed to vacate allotted premises, and clothed with a new right to recover possession of any premises let out by him, to exercise it once, he cannot repeat the exercise ad libitem and go on evicting every tenant of his by using the weapon of section 14A.\n\nHe relies on the proviso to section 14A(l) to reinforce his submission and we will deal with it presently.", "canonical_name": "Nariman"}}, {"text": "section 14A", "label": "PROVISION", "start_char": 8803, "end_char": 8814, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A(l)", "label": "PROVISION", "start_char": 8845, "end_char": 8859, "source": "regex", "metadata": {"statute": null}}, {"text": "Jum", "label": "OTHER_PERSON", "start_char": 9155, "end_char": 9158, "source": "ner", "metadata": {"in_sentence": "Two other contentions urged by the appellant are t11at the first respondent is not his landlord and therefore is disentitled to evict him, under the Act, and secondly, the premises are not in his name and have not been let out by Jum."}}, {"text": "section 25B", "label": "PROVISION", "start_char": 9671, "end_char": 9682, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 14A and 25B", "label": "PROVISION", "start_char": 10033, "end_char": 10053, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A(l)", "label": "PROVISION", "start_char": 10425, "end_char": 10439, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A(l)", "label": "PROVISION", "start_char": 10548, "end_char": 10562, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 11123, "end_char": 11134, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(e)", "label": "PROVISION", "start_char": 11666, "end_char": 11678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 12139, "end_char": 12146, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 12545, "end_char": 12569, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Nariipa11", "label": "OTHER_PERSON", "start_char": 13491, "end_char": 13500, "source": "ner", "metadata": {"in_sentence": "We are\n\n12-436SCI/77\n\nnot impressed with the investigation into the Jaw of real property and estoppel between )andlord and tenant, Shri Nariipa11 invited us to make."}}, {"text": "Ram Pasricha", "label": "OTHER_PERSON", "start_char": 14041, "end_char": 14053, "source": "ner", "metadata": {"in_sentence": "This Court, in Sri Ram Pasricha(') clarified that a coowner is as much an owner of the entire property as any sole owner of the property is : \"Jurisprudentially, it is not correct to say that a coowner of property is not its owner."}}, {"text": "section 13", "label": "PROVISION", "start_char": 14606, "end_char": 14616, "source": "regex", "metadata": {"statute": null}}, {"text": "Shd Nariman", "label": "OTHER_PERSON", "start_char": 16005, "end_char": 16016, "source": "ner", "metadata": {"in_sentence": "The last, and yet the lethal objection which had been lost sight of in the High Court, although raised there, loomed large before this Court, in Shd Nariman's arguments."}}, {"text": "section 14A(l)", "label": "PROVISION", "start_char": 16415, "end_char": 16429, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 16645, "end_char": 16656, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28B", "label": "PROVISION", "start_char": 16667, "end_char": 16678, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 16932, "end_char": 16943, "source": "regex", "metadata": {"statute": null}}, {"text": "Ile", "label": "OTHER_PERSON", "start_char": 17719, "end_char": 17722, "source": "ner", "metadata": {"in_sentence": "In the presi; nt case, admittedly Ile has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under section 14A(l)."}}, {"text": "section 14A(l)", "label": "PROVISION", "start_char": 17846, "end_char": 17860, "source": "regex", "metadata": {"statute": null}}, {"text": "section 141", "label": "PROVISION", "start_char": 17906, "end_char": 17917, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14A", "label": "PROVISION", "start_char": 18342, "end_char": 18353, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_418_427_EN", "year": 1977, "text": "COMMISSIONER OF WEALTH TAX, NEW DELHI v.\n\nP. N. SIKAND\n\nApril l, 1977\n\n(P. N. BHAGWATJ AND S. MURTAZA FAZAL ALI, JJ.]\n\nWealth Tax Act. 1957 (Act 27 of 1957)-S. 7 rlw ss. i(e)(m), 3-Valuation of the hase-hold interest, when attached with a restraint or disadvantage- \"Net wealth\" in s. 2(m)-Whetlzer 50% of unearned increase \"payable\" to the lessor as per the agreement deductible out of the valuation.\n\nThe respondent an assessee to wealth tax as an individual, in the assessment for the assessment year 1968-69, valued his property situate on plot No. 12, Block 39 Kautilya Mrg, Chanakyapuri in his return of net wealth @ Rs. 4,52,000\n\nas against the value of Rs. 6,00,000 shown by him in_ the previous years. The property consisted of leasehold interest in the land together with a house built on it.\n\nThe land belonged to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee. Clause (13) of the le<lfic deed provided that the assessee shall not be entitled to assign the leasehold interest in the land without obtaining the prior approval in writing of the lessor and 50 per cent of the unearned increase in the value of the land at the time of assignment shall be claimable by the lessor and moreover, if the lessor so desires, he shall have pre-emptive right to purchase the property after deducting\n\n50% of the unearned increase in the value of the land. It further provided that \"all such assignees and transferees ........ shall be bound by alf the covenants and conditions herein contained and be answerable in respect therefor\".\n\nIn accordance with this clau!le, the Architects who are approved valuers estimated the value of the property @ Rs. 5,82,268 and from this figure, they deducted a sum of Rs. 1,30,000 representing 50 per cent of the unearned increa!le in the value of the land, which belonged to the lessor and arrived at the value of Rs. 4,52,268/-.\n\nThe Wealth Tax Officer did not accept the estimate of the valuation and taking the annual rental value of Rs. 1,32,000 /- fetched by the property as the basis, computed the net annual rent at Rs. 82,956/- and arrived at the figure of Rs. 8,29,560/- as the value of the property by applying the multiple of ten to the net annual rental value of Rs. 82,956/-. The claim of the assessee to deduct from the value of the property 50 per cent of the unearned increase in the value of the land was rejected on the ground that this claim. was based \"merely on hypothetical presumptions\". The value of the property was, however, reduced from Rs. 8,29,560/- to Rs. 6,00,000/- since that was the figure accepted by the Revf'.nue in the past assessment years. The appeals before the Appellate Assistant Commissioner and the Tribunal failed.\n\nOn a reference, the High Court took the view that the liability to pay 50. per cent of te unearned increase in the value of the land to the lessor at the time of the assignment was a disadvantage attached to the lea-sehold interest in the Ian~ and. h.ence its value was liable to be deducted from the value of the property 1n arnv1ng at the net wealth.\n\nDismissing the appeals, the Court,\n\nHELD : ( 1) In determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth tax the price which the leasehold interest would fetch in the open market, were it not encumbered or affected\n\nby the burden of the restriction contained in clause ( 13) of the leasedeed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date.\n\n[427 C-D]\n\n(2) The only way in which in a case of this kind the valuation u/s. 7(1) of the Wealth Tax Act can be done is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction contained in clause (13) nnd deducting from it, 50 per cent of the unearned\n\nt '\n\nincrease in the value of the land on the basis of the hypothetical sale as repre- A sent1ng the value of such burden or restriction. [425 A-Cl\n\n(3) The true test for determining: tbe matter of payment ruade by an assessee out of an amount received by him whether it is an application of part of the amount which belon&s to him or it is payment of an amount which is diverted before it reaches the assessee so that at the time of receipt, it belongs to the payee and not to the assessee. In the present case 50 per cent of the unearned increase in the value of the land would be diverted to the lessor before it reaches the hands of the assessee as part of the price.\n\n[425 E-F] B\n\nC.l.T. v. Sitaldas Tiralhda.s 41 J.T.R. 367 SC; applied.\n\nPandit Lakshn1i Kant Jha v. Conunissioner of Wea.lth~Tqx, Bihar 90 I.T.R. 97, explained.\n\n( 4) The burden or limitation attaching to the leasehold interest must be tall.en into account in arriving at the value of the leasehold interest and it cannot be value ig11onni;:: the burden or limitation. The covenant in clause (13) is C clearly a. covenant running with the land and it would bind whosoever is the holder of the leasehold interest for the timf:I being. It is a constituent part of the rights and liabilities and advantages and disadvantages which go to make up the leasehold interest and it is an incident which is in the nature of burden, on the leasehold interest.\n\nPlainly and indisputably, it has the affect of depressing the value which the leasehold interest would fetch if it were free from this burden or disadvantage. When the leasehold interest in the land has to be valued this burden or disadvantage attaching to the leasehold interest must be duly discounted in estimated the price which the leasehold interest would fetch. To D value the leasehold interest on the basis that this burden or disadvantage were to be ignored would be to value an asset different in content and quality from that actually owned by the asse., ee. [424 B, 423 D-Hl\n\nCorrit! v. MecDer1nott [1914] A.C. 1056, quoted with approval.\n\n(5) When under the lease deed the le5sor has a bundle of rights \\Vhich includes \"somethin, e\" more than the reversion, that \"something\" would necessarily be subtracted from the interest of the lessee and to that extent, the interest of the lessee would be the leasehold interest minus that \"something\". What goes E to augment the interest of the lessor would correspondingly reduce the interest of the lessee and it cannot be taxed as the wealth of both the lessor and the lessee. It would be includible in the net wealth of the lessor and hence it cannot at the same time form part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lessee. [424 E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1174 of 1974.\n\n(From the Judgment and Order dated the 4-4-1974 of the Delhi High Court in Wealth Tax Ref. No. 5 of 1972).\n\nR. M. Mehta and P. L. Juneja, for the appellant.\n\nG. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal raises a rather difficult but interesting questio11 of law relating to valuation for tbe purpose of the Wealth Tax Act, 1957 of leasehold interest in land when there is a covenant in the lease tat the les.se_e shall no_t' be entitled to assign the leasehold mterest without obtammg the pnor approval in writing of the lesso~ and the lessor shall be entitled to claim and recover from the lessee a. certain specified proportion oJi the unearned increase in the value of the land at the time of the assignment.\n\n! 3-436SCI/77\n\nA The controversy in this appeal relates to the assessment year 1968-69, the relevant valuation date. being 31st December, 1\\167.\n\nThe assessee is assessed to wealth tax as, an individual.\n\nHls net wealth on th(1 valuation date included a property situate on plot No. 12, Block 39, Kautilya Marg, Chanakyapun. fhe property consisted of leasehold interest in the land together with a house built upon it.\n\nThe land belonged to the President of India and it was leased B by the President of India to one Vashesharan Devi on the terms amt conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashcsharan Devi by the assessee.\n\nThe premium for the grant of the lease was Rs. 24,400/- and the annual rent was fixed at Rs. 610/-, subject to certain variations.\n\nThe terms and conditions of the lease are a little c\n\nimportant and, so far material, they may be reproduced as follows :\n\n\"13. The lessee shall before any assignment or transfer of the said premises hereby demised or any part thereof obtain from the lessor or such officer or body as the lessor may autl1orise in this behalf approval in writmg of the said assignment or transfer and all such assignees and transferees and the heirs of the lessee shall be bound by all the covenants and conditions herein contained and the answerable in all respect therefor.\n\nProvided also that the lessor be entitled to claim and rewver a portion of the unearned increase (i.e. the difference between the premium already paid and current market value) in the value of land at the time of transfer (whether such transfer is an entire site or only a part thereof), the amonnt to be recovered being 50 per cent of the unearned increase.\n\nThe Lessor shall have a pre-emptive right to the property after deducting 50 per cent 0£ the unearned (torn) said.\" , :i ;~ 1\n\nThe assessee constructed a large building on the land and the question arose as to how the leasehold interest of the assessee in the land together with the building should be valued.\n\nThis prDperty hacl been valued in the past assessment years at Rs. 6,00,000/- and the assessee had accepted this valuation and not challenged it.\n\nBut in the assessment for the assessment year, 1968-69 the assessee valued this property in its return of net wealth at Rs. 4,52,000/- on the basis of a certificate obtained from M/s Anand Apte and Jhabvala, Architects who are approved valuers recognised by the Department.\n\nThe Architects estimated the value of the property at Rs. 5,82,268/- and from this figure, they deducted a sum of Rs. I ,30,000/- representing 50 per cent of the unearned increase in the value of the land, which under the tern1s and conditions of the lease belonged to the lessor and arrived at the value of Rs. 4,52,000/-.\n\nThe Wealth Tax Officer did not accept the estimate of the valuation made by the Architects and taking the annnal rent of Rs. 1,30,000/- fe.tchcd by the property as the basis, computed the net annual rent at Rs. 82,956/-\n\neoMMR. WEALTH TAX v. P. N. SIKAND (Bhagwati, !.) 421\n\nLtnd arrived at the figure of Rs. 8,29,560/- as the value of the pro- A perty by applying the multiple of ten to the annual rental value of Rs. 82,956/-. The Wealth Tax Officer rejected the claim of the _assessee to deduct from the value of the property 50 per cent of the l!nearned increase in the value of the land on the ground that this , claim was based \"merely on hypothetical presumptions\" but reduced the value olf the property from Rs. 8,29,560/- to Rs. 6,00,000/-, since that was the figure accepted by the Revenue in the past assess- B ment years.\n\nThe assessee challenged the valuation made by the Wealth Tax Officer in an appeal preferred bfore the Appellate Assistant Commissioner, but the appeal was unsuccessful as the Appellate Assistant Commissioner took the same view as the Wealth Tax Officer.\n\nThe Tribunal also, in further appeal, affirmed the same view holding that \"the fact that the assessee might have to pay 50 per cel)t of the unearned increase to the lessor does not 11ffect the, C valuation( of the property under section 7 of the Wealth Tax Act\" .and the words used in that section \"make it clear that the estimate which should be made by the Wealth Tax Officer is of th() gross _price\" and henrn no part of the unearned increase was deductible m computing the value of the property for the purpose of the W calth Tax Act.\n\nThe Tribunal also upheld the rental method of valuation .of the property and finding that the valuation of Rs. 6,00,000 /- ad op- D ted by the Wealth Tax Officer was even less than eight times the .annual rental value of Rs. 82,956/-, the Tribunal declined to, interfere with the valuation made by the Wealth Tax Officer.\n\nThe assessee thereupon applied to the Tribunal for making a feference to the High Court and on the application of the assessee, the following question of law was referred by the Tribunal for the E .opinion of the High Court :\n\n\"Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in taking the view that 50% of the unearned increase payable to the lessor of the land formed part of, and was not deductible out of, the valuation of the property for the purposes of Wealth-tax F Act?\"\n\n.The High Court took the view that the liability to pay 50 per cent of the unearned increase in the value o~ the land to the lessor at the time of the assignment was a disadvantage attached to the leasehold interest in the land and hence its value was liable to be deducted from the value of the property in arriving at the net wealth of fue assessee G and on this view, it answered the question in the negative in favour of the assessee. '!is led to .the filing of the present appeal by the Revenue after obtammg a certificate of fitness from the High Court.\n\n.. It would be convenient at the outset to refer to the relevant pro- 'V1s1ons of the Wealth Tax Act, 1957 before we address ourselves to the question which arises for determination in the appeal. J:he Wealth H Tax Act, J 957 was passed by the Parliament in: exercise of the legislative power conferred under Entry 86 of List I oti the Seventh Sche- .dule to the Constitution and, as pointed out by Shah, J., in Sudhir\n\nChandra Nawa v. Wealth Tax Officer, Calcutta,(1) wealth tax \"is a tax imposed on the capital valne of the assets of individuals and companies on the valuation date . . . . . . it is imposed on the total assets. which the assessee owns\" and it is levied on the value of those assets. 'Section 3 is the charging section and it provides that, snbject to the other provisions contained in the Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1957 a tax in respect of the net wealth on the corresponding valuation date of every individual, Hindu Undivided Famil)' and company at the rate or rates specified in the Schedule. Thus, wealth tax is a tax on the net wealth of the assessee on the valuation date. Net wealth is defined in section 2 (m) to mean \"the amount by which the aggregate value, computed in accordance with the provisions of this Act, of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date\" other than debts falling within certain specified categories. The word 'asset' used in section 2(m) is of the widest signification and under section 2( e), it includes property of every description, movable or immovable, barring certain exceptions which are not material for our purpose. What is, therefore, necessary for the purpose of determining the net wealth of the assessee is, first to compute the ggregate value of all assets belonging to the assessee in accordance with the provisions of the Act and then to deduct from it the aggregate value of all the debts, and the resultant which is obtained would be the net wealth assessable to tax. Section 7, sub-section (1) fays down the mode of determination of the value of an. asset for the purposes of the Act and it says that, subject to any rules made in this behalf, the value of any asset other than cash \"shall be estimated to be the price which, in the opinion of the Wealth Tax Officer it would fetch if sold in the open market on the valuation date\".\n\nNow, plainly one of the assets belonging to the assessee in the present case was the leasehold interest in the land together with the building upon it and for the purpose of computing the net wealth of the assessee, it was necessary to determine the value of this asset.\n\nThe question which must, therefore, be asked in; terms of section 7 (1) is : what would be the price which this asset would fetch if sold in the open market on the valuation date? This question cannot be satisfactorily answered, unless we first determine what is the nature of this asset : what is the interest in property, qualitative as well as quantitative, which this asset repre sents ?\n\nThe asset consists of leasehold interest of the asse8see in the land together with the building constructed upon it.\n\nThe building, of course, belongs to the assessee having been constructed by him and the determination of its valull should not present any difficulty, because there are recognised methods of valuation of buildings.\n\nThe difficulty, however, arises: in regard to valuation of the leasehold interest in the! land. The leasehold interest is held by the assessee under a lease-deed executed by the President of India and apart from\n\n(1) 69 I.T.R. 897.\n\ndausc ( 13), which we have reproduced above, it is an ordinary leasedeed of the usual kind.\n\nClause ( 13) of the lease-deed provides that the assessee shall not be entitled to assign the leasehold! interest in the land without obtaining the prior approval in writing of the lessor and\n\nSO per cent of the unearned increase in the value of the land at the time of the assignment shall be claimable by the lessor, and moreover, if the lessor so desires, he shall have pre-emptive right to purchase the property after deducting 50 per cent of the unearned increase in the value of the land.\n\nDoes this covenant merely impose a personal obligation on .the lessee which arises on assignment of the leasehold interest or it is a covenant rnnning with the land ? That is a question which has a direct bearing on the valuatio_n of the . leasehold interest.\n\nNow, the last portion of the first paragraph of clause (13) provides that \"all such assignees and transferees .... shall be bound by all the cpvenants and conditions herein contained and, be answerable in respect therefor\". This means that whenevev an assignment of the leasehold interest is made by the lessee, the assignee would be bound by all the covenants contained in the lease-deed and these would indisputably include the covenant.in clause (13). Clause (13) would equally bind the assignee and if the assignee in his tum wants to assign his leasehold interest in the. land, he would have to obtain the prior approval in writing of the lessor to such assignment and the lessor would be entitled to claim 50 per cent of the unearned increase in the value of the land. This indeed was not disputed on behalf of the Revenue.\n\nThe covenant in clause ( 13) is, there.fore, clearly a covenant running with the land and it would bind whosoever is the holder of the leasehold interest! for the time being.\n\nIt is a constituent part of the rights and liabilities and advantages an<;[ disadvantages which go to make up the leasehold interest and, it is ani iiicident which is in the nature of burden on the leasehold interest.\n\nPlainly and indisputably it has the effect of depressing the value which the leasehold interest would fetch if it were free from this burden or disadvantage.\n\nTherefore, when the leasehold interest in the land has to be valued, this burden or disadvantage attaching to the leasehold interest must be duly discounted in estimating th~ price which the leasehold interest would fetch.\n\nTo value the leasehold interest on the basis that this burden or diSadvantage were to be ignored would be tq value an asset different in content and quality from that actually owned by the assessee.-This was the principle applied by the Judicial Committee in Corrie v. MacDemott,(') an appeal from Australia where the question arose as to how certain land granted by the Go; ernment of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government.\n\nThe trustees had no general power of sale but they were by statute authorised to sell any part of the Ian~ to the .ioal authority and to the National Agricultural and\n\nndstnal Asociatin.. It was held! by the Judicial Committee that !n view of this restriction on the nature of the interest of the trustees m the. land, the trustees were not entitled, upon resumption of the land by the Government, to be paid unrestricted free-hold value of\n\n(I) [1914] A.C. 1056.\n\nthe land but only the value of the land to the trustees under the conditions upon which they held it.\n\nThe Judicial Committee pointed out that if the owner holds the property subject to restrictions, \"it is a necessary point of enquiry how far these restrictions affect the value\" and the property cann\\lt be valued as if it were \"unrestricted in any way\".\n\nThe burden or limitation attaching to the leasehold interest in the present case must, therefore, be taken into account in arriving at the value of the leasehold interest and it cannot be valued ignoring the burden or limitation.\n\nThis problem can also be looked at from a slightly different angle and thiJ> approac~' too would throw some light on the true nat4re of the leasehold interest required to be valued.\n\nLet us approach the question from the point of view of the lessor.\n\nWhat is the nature of the lessor's interest in the land?\n\nThe lessor has undoubtedly the reversion, but coupled with it is also the right to 50 per cent of the unearned increase in the value 0£ the land at the time of assignment of the leasehold interest by the lessee as also the pre-emptive right to the land after deducting 50 per cent of the unearned increas~Jrom the price obtainable, by the lessee.\n\nThis is the asset of the lessor which would have to l)e valued when the lessot is sought to be assessed to wealth tax.\n\nThe right to 50 per cent of the unearned increase on assignment of the leasehold interest would certainly add to the value which the reversion would otherwise fetch in the open market.\n\nNow, once it is granted that under the lease deed the lessor has a bundle of rights, which includes 'something' more than the reversion, that 'something' would necessarily be subtracted from the interest of the lessee and to that extent, the interest of the lessee would stand reduced.\n\nThe interest of the lessee would be the leasehold interest minus that 'something'.\n\nWhat goes to augment the interest of the lessor would. correspondingly reduce the interest of the lessee and! it\n\npnnot be taxed as the wealth of both the lessor and the lessee. It would! be includible in the net wealth of the lessor and hence it cannot at the same time form1part of the wealth of the lessee and must be subtracted in determining the nature and extent of the interest of the lessee.\n\nThat takes us to the question as to how the leasehold interest ol the assessee with the burden or limitation attaching under clause ( 13) of the lease-deed should he valued. It is clear from the language of section 7, sub-sction (1) that what the Revenue is required to do for the purpose of determining the valne of an asset is to assume that the asset which is to be valued is being sold in the open market and to fix ifs value for the purpose of wealth tax upon that hypothesis.\n\nNow, whenever the value of an asset has to be determined on the basis of a hypothetical sale, the court has necessarily to embark upon speculations which may be quite difficult and in some cases, even artificial.\n\nHere the asset to be valued is the leasehold interest in the land with the bnrden or restriction contained in clause (13) of the lease deed and the inquiry has, therefore, to be d_irected to the question as to what is the price which this asset w_onld fetch if sold in the open market.\n\nWhat wonld be fhe realisable value of this asset ? It would indeed be difficult to speculate as to what\n\nthe leasehold interest in the land would fetch in the open market when it is affected by the burden or restriction contained in clause (13) of the lease deed. If the leasehold interest were free from this burden or restriction, i( would b~ comparatively easy to determine i!s market value, for there a_re recognised methods of valuation of leasehold interest, but wjiere tjle leasehold interest is cQt down by this burden\n\nor restriction and some right of interest is abstracted from it, the pro- B blem of valuation becomes a difficult one and some method has to be\n\nevolved for resolving it.\n\nThe only way it can be done in a case of this kind is by taking the market value of the leasehold interest as if it were unencumbered or unaffected by the burden or restriction of clause ( 13) and deducting from it, 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale, as representing the value of such burden or restriction.\n\nThere is also one other consideration which reinforces the adoption of this method of valuation.\n\nWhen, for the purpose of valuation of the leasehold interest, it is assumed that the leasehold interest is sold in the open market, the price received does not in it's entirety belong to the assessee.\n\nFifty per cent of the unearned increase in\n\nthe value of the land is diverted to the lessor by virtue of the paramount title contained in clause (13) and when received by the asses- D see, it belongs to the lessor. It is in truth and substance collected by the assessee on behalf of the lessor.\n\nWhat is received by the assessee on his own account is only the price less 50 per cent of the unearned increase in the value of the land and that represents the net realisable worth of the asset in the hands of the assessee.\n\nThe Revenue contended that payment of 50 per cent of the unearned increase in the value 0f the land to the lessor is really an in'stance of application of the E price received by the assessee and not diversion of !l part of the price by paramount title and hence the whole of the price must be taken as the measure of the wealth of the assessee.\n\nBut this contention is, in our opinion, not well founded and cannot be sustained.\n\nThe true test for determining whether a payment made by an assessee out of an amount received by him is an application of part of the amount which belongs to him or it is payment of an '.Lmount whi.ch i~ diverted before F it reaches the assessee so that at the Ume of receipt, it belongs to the payee and not to the assessee, has been explained by Hidayatullah, J., in C. I .. T. v. Silaldas Tirathdas(') in the following words :\n\n\"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case G but it is the nture of the obligation which is the decisive fact.\n\nThere is a difference between an amount which a person is. obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.\n\nWhere by the obligation income is diverted before it reaches the assessee, it i:S deductible; but where the income is required to be applied H to discharge an obligation after such income reaches the\n\n41 I.T.R. 367.\n\nassessee, the same consequence, in law, does not follow. It\n\ni~ the. first kinft of payment which can truly be excused and not the second.\n\nThe second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied.\n\nThe first is a case in which the income never reaches the assessee, who, even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.\n\nIn our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own.\n\nThe case is one of application of :i portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another's income.\"\n\nIt is clear on the application of this test that in the present case, 50 per cent of th'(O unearned increase ill the value of the land would be diverted fo the lessor before it reaches the hands of the assessee as part of the price.\n\nThe assessee holds the leasehold interest on condition that if he assigns it, 50 per cent of the unearned increase in the value of the land will be payable to the lessor.\n\nThat is the condition on which he has acquired the leasehold interest arid hence 50 per cent of he unearned increase in the value of the land must be held to belong to the lessor at the time when it is received by the assessee and it would not be part of the net realisable worth of the leasehold interest in the hands of the assessee.\n\nIf a question is asked as to what is the real wealth of the assessee in terms of money so far as the leasehold interest is concerned, the answer would inevitably be that it is the price less 50 per cent of the unearned increase in the value of the land. It is difficult to see how 50 per cent of the unearned iucrease in the value of the land which belongs to the lessor can be regarded as part of the wealth of the assessee.\n\nThe position would undoubtedly be different where a payment is made by an assessee which is an application of a part of the price received by him.\n\nWhere such is the case, the whole of the price would represent the net realisable worth of the asset in the hands of the a'ssessee and what is paid out by the assessee would e merely a disbursement made aftr the price reaches the assessee as fas own property. That was the position in Pandit Lakshi Kant Jha v.\n\nCommissioner of Wealth-Tax, G Bihar(') where the question arose whether the expenditure in connec- . tion with brokerage, commission or other expenses which would be liable to be incurred by the assessee in effectuating a sale would be deductible from the market value of the shares in determining their value for the purpose of assessment to wealth tax.\n\nThis Court held that in computing the value of the shares, the assessee is not entitled\n\nH to deduction of brokerage and commis'sion from the valuation of the shares as given in, the Stock Exchange quotations or qnotations furnished by well known brokers. It was pointed out by this Court that :\n\n(I) 90 J.T.R. 97.\n\nCOMMR. WEALTH .TAX v. P. N. SIKAND (lJhagwati, J.) 427\n\n\"it is not. .. the amount which the veridor would receive after deduction of ibis expense, but the price which the asse-t would fetch when sold in the open mrket which would constitute the value of the asset for the purpose of section 7(1) of the Act\".\n\nObviously, this view was taken because the entire price, when receiv'ed, would belong to the assessee and payment of brokerage and commission would be merely application of part of the price in meeting expenditure necessary for effectuating the sale and hence it would not be deductible in ascertaining the net realisable worth of the shares in the hands of the assessee.\n\nWe are, therefore, of the view that the question referred by the Tribunal must be answered in the negative and it must be held that in determining the xalue of the leasehold interest ot the assessee in the land for the purpose of assessment to wealth tax, the price which the leasehold inte_rest would fetch in the open market were it not encumbered or affected by the burden or restriction contained in clause (13) -of the lease deed, would have. to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date.\n\nThe appal accordingly fails and must be dismissed with costs.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 47, "entities": [{"text": "COMMISSIONER OF WEALTH TAX, NEW DELHI", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX, NEW DELHI", "offset_not_found": false}}, {"text": "P. N. SIKAND", "label": "RESPONDENT", "start_char": 42, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "P. N. SIKAND", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 119, "end_char": 133, "source": "regex", "metadata": {}}, {"text": "S. 7", "label": "PROVISION", "start_char": 157, "end_char": 161, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act", "statute": "Wealth Tax Act"}}, {"text": "s. 2(m)", "label": "PROVISION", "start_char": 282, "end_char": 289, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act", "statute": "Wealth Tax Act"}}, {"text": "Chanakyapuri", "label": "GPE", "start_char": 580, "end_char": 592, "source": "ner", "metadata": {"in_sentence": "12, Block 39 Kautilya Mrg, Chanakyapuri in his return of net wealth @ Rs."}}, {"text": "Vashesharan Devi", "label": "OTHER_PERSON", "start_char": 899, "end_char": 915, "source": "ner", "metadata": {"in_sentence": "The land belonged to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee.", "canonical_name": "Vashesharan Devi"}}, {"text": "30th December, 1954", "label": "DATE", "start_char": 983, "end_char": 1002, "source": "ner", "metadata": {"in_sentence": "The land belonged to the President of India and it was leased by the President of India to one Vashesharan Devi on the terms and conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashesharan Devi by the assessee."}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 3843, "end_char": 3850, "source": "regex", "metadata": {"statute": null}}, {"text": "s 41", "label": "PROVISION", "start_char": 4802, "end_char": 4806, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 6875, "end_char": 6903, "source": "ner", "metadata": {"in_sentence": "424 E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "R. M. Mehta", "label": "OTHER_PERSON", "start_char": 7046, "end_char": 7057, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta and P. L. Juneja, for the appellant."}}, {"text": "P. L. Juneja", "label": "OTHER_PERSON", "start_char": 7062, "end_char": 7074, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta and P. L. Juneja, for the appellant."}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 7096, "end_char": 7108, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "M. L. Khanna", "label": "LAWYER", "start_char": 7110, "end_char": 7122, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "Anup Sharma", "label": "OTHER_PERSON", "start_char": 7124, "end_char": 7135, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "Jaswal K. K.", "label": "LAWYER", "start_char": 7142, "end_char": 7154, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "K. R. Jagaraja", "label": "LAWYER", "start_char": 7159, "end_char": 7173, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "D. K. Jain", "label": "LAWYER", "start_char": 7178, "end_char": 7188, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, M. L. Khanna, Anup Sharma, Miss Jaswal K. K. and K. R. Jagaraja and D. K. Jain, for the respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 7255, "end_char": 7263, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal raises a rather difficult but interesting questio11 of law relating to valuation for tbe purpose of the Wealth Tax Act, 1957 of leasehold interest in land when there is a covenant in the lease tat the les.see shall not' be entitled to assign the leasehold mterest without obtammg the pnor approval in writing of the lesso~ and the lessor shall be entitled to claim and recover from the lessee a. certain specified proportion oJi the unearned increase in the value of the land at the time of the assignment."}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 7384, "end_char": 7404, "source": "regex", "metadata": {}}, {"text": "Chanakyapun", "label": "GPE", "start_char": 8102, "end_char": 8113, "source": "ner", "metadata": {"in_sentence": "12, Block 39, Kautilya Marg, Chanakyapun."}}, {"text": "Vashcsharan Devi", "label": "OTHER_PERSON", "start_char": 8456, "end_char": 8472, "source": "ner", "metadata": {"in_sentence": "The land belonged to the President of India and it was leased B by the President of India to one Vashesharan Devi on the terms amt conditions set out in an agreement of lease dated 30th December, 1954 and the leasehold interest was acquired from Vashcsharan Devi by the assessee.", "canonical_name": "Vashesharan Devi"}}, {"text": "Anand Apte", "label": "OTHER_PERSON", "start_char": 10184, "end_char": 10194, "source": "ner", "metadata": {"in_sentence": "4,52,000/- on the basis of a certificate obtained from M/s Anand Apte and Jhabvala, Architects who are approved valuers recognised by the Department."}}, {"text": "Jhabvala", "label": "OTHER_PERSON", "start_char": 10199, "end_char": 10207, "source": "ner", "metadata": {"in_sentence": "4,52,000/- on the basis of a certificate obtained from M/s Anand Apte and Jhabvala, Architects who are approved valuers recognised by the Department."}}, {"text": "section 7", "label": "PROVISION", "start_char": 11920, "end_char": 11929, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax F Act", "label": "STATUTE", "start_char": 13059, "end_char": 13075, "source": "regex", "metadata": {}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 13726, "end_char": 13746, "source": "regex", "metadata": {}}, {"text": "Wealth H Tax Act", "label": "STATUTE", "start_char": 13842, "end_char": 13858, "source": "regex", "metadata": {}}, {"text": "Parliament", "label": "ORG", "start_char": 13884, "end_char": 13894, "source": "ner", "metadata": {"in_sentence": "J:he Wealth H Tax Act, J 957 was passed by the Parliament in: exercise of the legislative power conferred under Entry 86 of List I oti the Seventh Sche- .dule to the Constitution and, as pointed out by Shah, J., in Sudhir\n\nChandra Nawa v. Wealth Tax Officer, Calcutta,(1) wealth tax \"is a tax imposed on the capital valne of the assets of individuals and companies on the valuation date . . . . . ."}}, {"text": "Shah", "label": "JUDGE", "start_char": 14039, "end_char": 14043, "source": "ner", "metadata": {"in_sentence": "J:he Wealth H Tax Act, J 957 was passed by the Parliament in: exercise of the legislative power conferred under Entry 86 of List I oti the Seventh Sche- .dule to the Constitution and, as pointed out by Shah, J., in Sudhir\n\nChandra Nawa v. Wealth Tax Officer, Calcutta,(1) wealth tax \"is a tax imposed on the capital valne of the assets of individuals and companies on the valuation date . . . . . ."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 14344, "end_char": 14353, "source": "regex", "metadata": {"linked_statute_text": "Wealth H Tax Act", "statute": "Wealth H Tax Act"}}, {"text": "1st day of April, 1957", "label": "DATE", "start_char": 14530, "end_char": 14552, "source": "ner", "metadata": {"in_sentence": "Section 3 is the charging section and it provides that, snbject to the other provisions contained in the Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1957 a tax in respect of the net wealth on the corresponding valuation date of every individual, Hindu Undivided Famil)' and company at the rate or rates specified in the Schedule."}}, {"text": "section 2", "label": "PROVISION", "start_char": 14837, "end_char": 14846, "source": "regex", "metadata": {"linked_statute_text": "Wealth H Tax Act", "statute": "Wealth H Tax Act"}}, {"text": "section 2(m)", "label": "PROVISION", "start_char": 15318, "end_char": 15330, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2( e)", "label": "PROVISION", "start_char": 15372, "end_char": 15385, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 15880, "end_char": 15889, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 16577, "end_char": 16586, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 17437, "end_char": 17442, "source": "ner", "metadata": {"in_sentence": "The leasehold interest is held by the assessee under a lease-deed executed by the President of India and apart from\n\n(1) 69 I.T.R. 897."}}, {"text": "Australia", "label": "GPE", "start_char": 20236, "end_char": 20245, "source": "ner", "metadata": {"in_sentence": "To value the leasehold interest on the basis that this burden or diSadvantage were to be ignored would be tq value an asset different in content and quality from that actually owned by the assessee.-This was the principle applied by the Judicial Committee in Corrie v. MacDemott,(') an appeal from Australia where the question arose as to how certain land granted by the Go; ernment of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government."}}, {"text": "Queensland", "label": "GPE", "start_char": 20324, "end_char": 20334, "source": "ner", "metadata": {"in_sentence": "To value the leasehold interest on the basis that this burden or diSadvantage were to be ignored would be tq value an asset different in content and quality from that actually owned by the assessee.-This was the principle applied by the Judicial Committee in Corrie v. MacDemott,(') an appeal from Australia where the question arose as to how certain land granted by the Go; ernment of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government."}}, {"text": "Acclimatisation Society of Queensland", "label": "ORG", "start_char": 20358, "end_char": 20395, "source": "ner", "metadata": {"in_sentence": "To value the leasehold interest on the basis that this burden or diSadvantage were to be ignored would be tq value an asset different in content and quality from that actually owned by the assessee.-This was the principle applied by the Judicial Committee in Corrie v. MacDemott,(') an appeal from Australia where the question arose as to how certain land granted by the Go; ernment of Queensland to the trustees of the Acclimatisation Society of Queensland to be used only for the purpose of the Society should be valued on resumption by the Government."}}, {"text": "section 7", "label": "PROVISION", "start_char": 23490, "end_char": 23499, "source": "regex", "metadata": {"statute": null}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 26942, "end_char": 26954, "source": "ner", "metadata": {"in_sentence": "The true test for determining whether a payment made by an assessee out of an amount received by him is an application of part of the amount which belongs to him or it is payment of an '.Lmount whi.ch i~ diverted before F it reaches the assessee so that at the Ume of receipt, it belongs to the payee and not to the assessee, has been explained by Hidayatullah, J., in C. I .. T. v. Silaldas Tirathdas(') in the following words :\n\n\"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income."}}, {"text": "lJhagwati", "label": "JUDGE", "start_char": 30935, "end_char": 30944, "source": "ner", "metadata": {"in_sentence": "WEALTH .TAX v. P. N. SIKAND (lJhagwati, J.) 427\n\n\"it is not. .."}}, {"text": "section 7(1)", "label": "PROVISION", "start_char": 31182, "end_char": 31194, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_428_436_EN", "year": 1977, "text": "STATE OF UT_TAR PRADESH\n\nNAWAB HUSSAIN\n\nApril 4, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nConstr1ctive res jdi'cata-Mtter which might or ought to have been raised in a!z earlter proceeding not ra1sed-lf principle of constructive res judicata applicable.\n\nin a Writ jjeti'tion filed under Art. 226 of the Constitution impugning bis dismissal from service, the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him, his dismissal was void.\n\nThe writ petition was dismissed.\n\nThereupon, the r.espondent filed a suit in a civil cout challenging his dismissal on the ground, among others, that since he had been appointed by the Inspector-General of Police, his dismissal by the Deputy Inspector Gene-ral of Police was wrong. The State took the plea that the suit was barred by res-iudicata. Dismissing th~ suit, the trial court held that it was not barred by res-judicata.\n\nThe first appellate court dismissed the respondent's appeal. Purporting to follow a line of decisions of this Court~ the High Court held that only that issue between the parties would be res-judicata which was raised in the earlier writ petition and was decided by the High Court after contest and since in this case the respondent did not raise in the earlier writ petition the plea of competence of the Deputy Inspector General of Police\n\nto dismiss him. the parties were never at issue on it and that the High Court never considered and decided this issue in the writ petition. On the question of invoking the principle of constructive res-judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings, the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh v. State of Bo1nbay [19651 2 SCR 547, and allowed the respondent's appeal.\n\nAllowing the State's appeal to this Court, HELD : The High Court was \\Vrong in its vie\\V because the la\\v in regard to the applicability of the principle of constructive res-judicata having been clearly laid down in Devi Lal Modi v. Sales Tax Officer Ratlam and Others [1965] 1 S.C.R. 686 it was not necessary to reiterate it in Gulabchand's case as it did not arise for consideration in that case. The clarificatory observation in G ulabchand's case was misunderstood by the High Court in observing that the matter had been left open by this Court. [435 G]\n\n1. The doctrine of resjudicata is based on two theories : (i) the finality and conclusiveness of judicial decisions for the final termination of <liisputes in the general interest of the community as a matter of public policy, and (ii) the interest of the inaividual that he should be protected from multiplication of litigation.\n\n[430 DJ\n\n2. (a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res-judicata is not confined to the issues which the Court is actually asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding. to be started in respect of them. This rule has sometim~_s be!_!l\n\nferred to as constructive resiudicata which is an aspect or amplification: of the general principle. [431 A]\n\n(b) Section 11 of the Code of Civil Procedure, with its six explanations, covers almost the whole field, but the section has, in terms, no application to a petition for the issue of a high prerogative writ. [ 431 D]\n\n(c) Although in the A1nalr:ama1ed COalfields Ltd. and others v. lanapada Sabha, [1962] I S.C.R. 1 this Court held that constructive res-iudica!a being a special and artificial form of res-judicata should n?t generally. be applied to v.:nt petitions, in Devilal. Modi's this Court held that if the doctrine of constructive\n\nres-judicata was not applied to writ proceedings, it would be open to a party to take one procee'ding after another and urge new grounds every time, which was plainly inconsistent with considerations of public policy. The principle of constructive res-judicata was, therefore, held applicable to writ petitions as well.\n\n[433 G & 434 DJ\n\n3. The High Court missed the significaIJce of these decisions and relied upon L. Jankirama Iyer and Others v. P. M. Nilakanta Iyer and Others [1962} Supp. 1 S.C.R. 206 which had no bearing on the controversy. In Gulabchand's case, this Court observed that it did not consider it necessary to examine whether the principle of constructive res-judicata could be invoked by a party to the subse~\n\nquent suit on the_ ground that a matter which might or ought to have been raised in the earlier proceeding but_ was not so r:iised therein could be raised again relying on which the High Court concluded that the question was left open by this Court. This in turn led the High Court to hold that the ifincij)le of resiudicata could not be made applicable to a writ petition. [435 E-F]\n\nIn the instant case, the respondent did nof raise the plea that he could not be dismissed by the Deputy Inspector General of Police. This was an imp_ortant plea which was -within his knowledge and could well have been taken in the writ petition. \"' Instead. he raised the plea that he was not afforded 'a reasonable opportunity of meeting the case in the departmental inquiry. It was therefore not permissible for him to take in the subsequent suit the plea that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the -principle of constructive res-iudicata and the High Court erred in taking a contrary view.\n\n[436 A-B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2339 of .1968. (Appeal by Special Leave from the Judgment and Order dated the 27-3-1968 of the Allahabad High Court in Scond Appeal No. 2352 of 1963).\n\nG. N. D1kshit, and 0. P. Rana, for the appellant.\n\nE. C. Agrawala, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J. Respondent Nawab Hussain was a confirmed Sub- Jru; pector of Police in Uttar Pradesh. An anonymous complaint was madei against him and was investigated by Inspector Suraj Singh who submitted his report to the Superintendent of Police on February 25, 1954.\n\nTwo cases were registered against him under the Prevention of Corruption Act and the Penal Code. They were also investigated by Inspector Suraj Singh, and the respondent was dismissed from service by an order of the Deputy Inspecto~ General o~ Police dated December 20, 1954. He filed an appeal, brit it was dismissed on April 17, 1956. Hei then filed a writ petition in the Allahabad High Court for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide.\n\nIt Was dismissed oa October 3(}, 1959; The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 196(}, in which he challenged the\n\norer of his dismissal on the ground, inter alia, that he had been appomted by the Inspector General of Police and that the Deputy Inspector Genr.al of Polic.e was not competent to dismiss him hy virtue of the prov1s1ons of article 311 ( 1) of the Constitution. The State of !Jttar Pradesh traversed the claim in the suit on several grounds, includ- '.ng. the lea tpat the suit was barred by res judicata as \"all the matters m issue m this case had been raised or ought to have been raised both\n\nIII\n\nSUPRE~E COUTS REPORTS [1977] 3 s.c.R.\n\nin the writ petition and special appeal.\" The trial court dismissed the suit on July 21, 1960, mainly on the ground that the Deputy Inspector General of Police would be deemed to be the plaintiff's appointing .authority. It however held that the suit was not barred by the principle of res judicata.\n\nThe District Judge upheld the trial court's judgment and dismissed the appeal on February 15, 1963. The respon• dent preferred a second appea! which has been allowed by the impugned judgment of the High Court dated March 27, 1968, and the suit has been decreed. The appellant State of Uttar Pradesh has therefore come up in appeal to this Court by special leave.\n\nThe High Court has taken the view that the suit was not barred by the principle of constructive res judicata and that the respondent could not be dismissed by an order of the Deputy Inspector General of Police as he had been appointedlby the Inspector General of Police. As we have reached the conclusion that the High Court committed an error of law ii). deciding the objection regarding the bar of res judicata, it will not be necessary for us to examine the other point.\n\nThe principle of estoppel per rem judicatam, is a rule of evidence.\n\nAs has been stated in Marginson v. Blackburn Borough Council,(') it may be said to be \"the broader rule of evidence which prohibits the reassertion of a cause of action.\" This doctrine is based on two theories:\n\n(i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest 0£ the indidual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to confliCting judgments of eqool authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It' is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgmnt, or give rise to 'another cause of action on the same facts. This is wht is known as the general principle of res iudicata.\n\nBut it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon! one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of ac'tion as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v.\n\nMallard(').-\n\n\"I think that on the authorities to which I will refer it would bei accurate to say that res judicata for this purpose is\n\n(1) [1939] 2 K.B. 426 at p. 437.\n\n(2) [1947] All. E.R. 255 at p. 257.\n\nnot confined to the issues which the court is actually asked\n\nta decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.\"\n\nThis is therefore nother and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which, in reality, is an aspect or ampli- .fication of the general principle.\n\nThese simple but ef!kacious rules of evidence have been recognised for long, and it will be enough to refer to this Court's decision in Gulab- Chand Chhotalal Parikh v. State of Bombay(') for the genesis of the -doctrine and its development over the years culminating in the present\n\nsec, tion 11 of the Code of Civil Procedure, 1908. The section, with its six explanations, covers almost the whole field, and has admirably\n\nerved the purpose of the doC!rine. But it relates to suits and former suits, and has, in terms, no direct application to a petition for the issue -of a high prerogative writ.\n\nThe general principles of res judicata and -constructive res judicata have however been acted upon in cases of\n\n-renewed applicaitions for a writ. Reference in this connection may be made to Ex Parle Thompson( 2 ). There A. J. Stephens moved fon a rule calling upon the authorities concerned to show cause why a mandamus should not issue.\n\nHe obtained a rule nisi, but it was discharged as it did not appear that there had been 31 demand and a refusal. He applied again saying that there had been a demand and a refusal since then. Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he eould not have \"the same application repeated from time to time\" as they had \"often refused rules\" on that ground. The same view has been taken in England in respect of renewed petition for certiorari, quo.warranto and prohibition, and, as we shall show, that is also the position in this country.\n\nWe find that the High Court in this case took note of the decisions <if this Court in L. Janakimma Tyer and others v. P.\n\nNilakanta Tyer and others(8), Devllal Modi v. Sales Tax Officer, Ratlam and -Others(') and Gulabchand Chhotalal Parikh v. State of Bombay\n\n(supra) and reached the following conclusion :-\n\n\"On a consideration of the law as laid down by the Supreme Court in the above three cases I am inclined to agree with the alernative argument of Sri K. C. Saxena, learn-\n\n\n(2) 6 Q.B. 720.\n\n(3) [1962] Supp. 1 S.C.R. 206 . . (4) [1965] l S.C.R. 686.\n\nSUPREME COUTS REPORTS [1977] 3 s.c.R.\n\ned counsel for the plaintiff-appellant, that the law as declared by the Supreme Court in regard to the plea of res judicatti barnng a subsequent suit on the ground of dismissal of a prior writ petition under Article 226 of the Constitution is that only that issue between the parties will be res judicata which was raised in the earlier writ petition and was decided by the High Court after contest. Since no plea questioning the validity of the dismissal order based on the incompetence of the Deputy Inspector General of Police was raised in the earlier writ petition filed by the plaintiff in the High Court under Article 226 of the Constitution and the parties were never at issue on it and the High Court never considered or decided it.\n\nI think it is competent for the plaintiff to raise such a plea in the subsequent suit and bar of res judicata will not apply.\"\n\nWe have gone through these cases.\n\nJanakirama lyer's was a case' wher0 the suit which was brought by defendants 1 to 6 was withdrawrr during the pendency of the appeal in the High Court and was dismissed.\n\nIn the mean timlj a suit was filed in a representative capacity under\n\nOrder 1 rule 8 C.P.C.\n\nOne of the defences there was the plea of res judicata.\n\nThe suit was decreed.\n\nAppeals were filed against the decree, but the High Court dismissed them on the ground that there was no bar of res judicata.\n\nWhen the matter came to this Court it was \"fairly conceded\" that .in terms section 11 of the Code of Civil Procedure could not apply because the suit was filed by the creditors de-- fendants 1 to 6 in their representative character and was conducted as a representative suit, and it could not be said that defendants 1 l; j>\n\n6 who were plaintiffs in the earlier suit and the creditors who had brought the subsequent suit were the same parties or parties who claimed through each other. It was accordingly held that where sec lion 11 was' thus inapplicable, it would not be permissible to rely upon\n\nth~ general doctrine of res juaicata, as the only ground on which res judicata could be urged in a suit could be the provisions of section 11 and no Other. That was therefore quite a different case and the High Court failed to appreciate that it had no bearing on the presentcontroversy.\n\nThe High Court then proceeded to consider this Court's decisions in Devi/al Modi's case (supra) and Gu/abchand's case (supra). Guiab~ chand's was the later of these two cases. The High Court has interpreted it to mean as follows :-\n\n\"It was held that the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res-judicata in a subsequent regular suit between the same parties with respect to the same matter.\n\nAs appears from the report the above was majority view of the Court and the question whether the principles of constructive res-judicata can be invoked by a party to the subsequent suit on the .grou_nd that a. matter which might or ought to have been raISed m the earlwr proceedings was left open.\n\nThe learned Judges took care to\n\nlI' 1\n\nobserve that they made! it clear that it was not necessary A and they had not considered that the principles of constructive res-judicata could be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so raised therein.\"\n\nAs we shall show, that was quite an erroneous view of the decision B of this Court on the question of constructive res-judicata. It will help in appreciating the view of this Court correctly if we make a brier reference to the earlier decisions in Amalgamated Coalfields Ltd. and others v. Janapada Sabha, Chhindwara(') and Amalgamated Coalfields Ltd. at8J another v. Janapada Sabha, Chhindwara, (') which was also a case between th(j same parties.\n\nIn the first of these cases a writ petition was filed to challenge the coal tax on some grounds.\n\nAn C effort was made to canvass an additional ground, but that was not allowed by this Conrt and the writ petition was dismissed.\n\nAnother writ petition was filed to challenge the levy of the lax for the subsequent periods on grounds distinct and separate from those which were rejected by this Court. The High Court held that the writ petition was barred by res-judicata because of the earlier decision of this Court. The matter came up in appeal to this Conrt in the second D case, The question which directly arose for decision was whether the principle of constructive res judicdta was applicable to petitions under articles 32 and 226 ofl the Constitution and it was answered as follows,-\n\n\"It is significant that the attack against the validity of the notices in the present proceedings is based on grounds E different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another - form.\n\nThe grounds now urged are entirely distinct, and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In F. our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally he applied to writ petitions field under Art. 32 or Art. 226.\n\nWe would be reluctant to apply' this principle to the present appeals all the more because we are dealing with cases where the impungned tax liability is for different years.\" G\n\nIt .ma, y thus appeau that this Court rejected the application of the pnnc1ple of constructive res judicata on the ground that it was a\n\n\"special. and artifiial f?~ of nes judicata\" and should not generally be .applied to wnt petitions, but the matter did not rest there. It agam arose for consideration in Devi/al Modi's case (supra).\n\nGajenc(ragadkar, J. who had spoken for the court in the second case of H Amalgamated Coalfields Ltd. spoke for the Court in that case also. The\n\npetitioner in that case was assessed to sales tax and filed a writ petition to challenge the assessment. The petition was dismissed by the High Court and he came in appeal to this Court. He sought to make some additional contentions in this Court, but was not permit_ted to do so.\n\nHe therefore filed another writ petition in the High Court raising those additional contentions and challenged the order of assessment for the same year.\n\nThe High Coult dismissed the petition on merits, and the case came up again to this Court in appeal. The question which specifically arose for consideration was whether the principle of constructive res judicata was applicable to writ petitions of that kind. While observing that the rule of constructive res judicata was \"in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure\", this Court declared the law in the following tenfts.-\n\n\"This rule postulates that if a plea could have been taken by a party in. a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public Policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another an urge new grounds every time; and that plainly is in.consistent with considerations of public policy to which we have just referred.\" . .\n\nWhile taking that view, Gajendragadkar c.J., tried to explain the earlier decision in Amalgamated Coalfields Ltd. v. lanapada Sabha, Chhindwara(') and categorically held that the principle of constructive res judicata was applicable to writ petitions also.\n\nAs has been stated, that case was brought to thti notice of the High .Court, but its significance appears to have been lost because of the decisions in Janakirama Iyer and others v. P. M. Nilakanta Iyer. (supra) and Gulabchand's case (supra).\n\nWe have made a reference to the decision in Janakirama Iyer's case which has no bearing on the present controversy, and we may refer to the decision in Gulabchand's lease as well.\n\nThat was a case where the question which specifically arose for consideration was whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under article 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between thel same parties.\n\nAfter a consideration of the earlier decisions in England and in this country, Raghubar, Dayal J., who spoke for the majority of this Court, observed as follows,-\n\nThese deciSions of the Privy Council well lay down that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect , to the same matter inter parties, and .do not preclude the application to regular suits of the general principles of res judicata based on public policy and applied from ancient times.\"\n\n...\n\nHe made a reference to the decision in Daryao land others v. The State\n\nA.. of U.P. and others(') on the question of res judicdta and the decisions in Amalgamated Coalfields Ltd. and others v. lanapada Sabha, Chhindwara(') and Dev11al Modi's case (supra) and summarised the decision of the Court as follows :-\n\n\"As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhausti\\ce with & respect to an earlier decision operating as res judicaJa between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in contrnversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a C: subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter.\n\nThe nature of the former proceeding is immaterial.\"\n\nHe however went on to make the following further observation,-\n\n\"We may make it clear that it was not necessary, and we have not considered, whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proce::ding was not so, raised therein.\" E It was this othet observation which led the High Court to take the view that the question whether the principle of constructive res judicata could be invoked by a party to a subsequent suit on the ground that a plea which might or ought to have been raised in the earlier proceeding but was not so raised therein, was left open.\n\nThat, in turn, led the High Court to the conclusion that the principle of constructive\n\nres judicata could not he made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in .this case to rais!l an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken.\n\nAs is obvious, the High Court went wrong in taking that view because the law in regard fo the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devi/al Modi's case (supra), it was not neces sary to reiterate it in Gu/abchand's case (supra) as it did not arise for consideration there.\n\nThe clarificatory observation of this Court in Gulabchand's case (snpra) was thus misunderstood by the High Court in observing that th<') matter had been \"left open\" by this Court.\n\nIt is not in controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the High Court, that by virtue of clause (1) of article 311 of the Constitution he\n\n(!) [196i] l S.C.R. 574.\n\n(2) [19631 Supp. 1 S.C.R.tn.\n\ncould not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector, General of Police. It is also not in controversy that tha~ was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide. It was therefore not permissiole for him to challenge his dismissal, in the subsequent suit, on the other ground that he had been dimissed by' an authority subordinate to. that by which he was appointed.\n\nThat was clearly barred by the principle of constructive res judicata and the High Court erred in taking a contrary view.\n\nThe. appeal is allowed, the impugned judgment of the High Court dated March 27, 1968, is set aside and the respondent's suit is dismissed.\n\nIn the circumstances of the case, we direct that the parties shall pay and bear their own costs.\n\n, P.B.R.\n\nAppeal allowed.\n\n'436SCI/77-'2500-12-1_0-77 GIPF.", "total_entities": 73, "entities": [{"text": "STATE OF UT_TAR PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF UT_TAR PRADESH", "offset_not_found": false}}, {"text": "NAWAB HUSSAIN", "label": "RESPONDENT", "start_char": 25, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "NAWAB HUSSAIN", "offset_not_found": false}}, {"text": "April 4, 1977", "label": "DATE", "start_char": 40, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "STATE OF UT_TAR PRADESH\n\nNAWAB HUSSAIN\n\nApril 4, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 56, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 75, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 313, "end_char": 321, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1798, "end_char": 1811, "source": "ner", "metadata": {"in_sentence": "On the question of invoking the principle of constructive res-judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings, the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh v. State of Bo1nbay [19651 2 SCR 547, and allowed the respondent's appeal."}}, {"text": "[1965] 1 S.C.R. 686", "label": "CASE_CITATION", "start_char": 2188, "end_char": 2207, "source": "regex", "metadata": {}}, {"text": "Gulabchand", "label": "OTHER_PERSON", "start_char": 2248, "end_char": 2258, "source": "ner", "metadata": {"in_sentence": "Allowing the State's appeal to this Court, HELD : The High Court was \\Vrong in its vie\\V because the la\\v in regard to the applicability of the principle of constructive res-judicata having been clearly laid down in Devi Lal Modi v. Sales Tax Officer Ratlam and Others [1965] 1 S.C.R. 686 it was not necessary to reiterate it in Gulabchand's case as it did not arise for consideration in that case.", "canonical_name": "Gu/abchand's"}}, {"text": "G ulabchand", "label": "OTHER_PERSON", "start_char": 2351, "end_char": 2362, "source": "ner", "metadata": {"in_sentence": "The clarificatory observation in G ulabchand's case was misunderstood by the High Court in observing that the matter had been left open by this Court. [", "canonical_name": "Gu/abchand's"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 3406, "end_char": 3416, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 3420, "end_char": 3447, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Devilal. Modi", "label": "OTHER_PERSON", "start_char": 3872, "end_char": 3885, "source": "ner", "metadata": {"in_sentence": "be applied to v.:nt petitions, in Devilal.", "canonical_name": "Devilal. Modi"}}, {"text": "27-3-1968", "label": "DATE", "start_char": 5868, "end_char": 5877, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated the 27-3-1968 of the Allahabad High Court in Scond Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5885, "end_char": 5905, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated the 27-3-1968 of the Allahabad High Court in Scond Appeal No."}}, {"text": "G. N. D1kshit", "label": "OTHER_PERSON", "start_char": 5942, "end_char": 5955, "source": "ner", "metadata": {"in_sentence": "G. N. D1kshit, and 0."}}, {"text": ". P. Rana", "label": "LAWYER", "start_char": 5962, "end_char": 5971, "source": "ner", "metadata": {"in_sentence": "G. N. D1kshit, and 0."}}, {"text": "E. C. Agrawala", "label": "LAWYER", "start_char": 5993, "end_char": 6007, "source": "ner", "metadata": {"in_sentence": "E. C. Agrawala, for the respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 6074, "end_char": 6082, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J. Respondent Nawab Hussain was a confirmed Sub- Jru; pector of Police in Uttar Pradesh."}}, {"text": "Suraj Singh", "label": "OTHER_PERSON", "start_char": 6252, "end_char": 6263, "source": "ner", "metadata": {"in_sentence": "An anonymous complaint was madei against him and was investigated by Inspector Suraj Singh who submitted his report to the Superintendent of Police on February 25, 1954."}}, {"text": "February 25, 1954", "label": "DATE", "start_char": 6324, "end_char": 6341, "source": "ner", "metadata": {"in_sentence": "An anonymous complaint was madei against him and was investigated by Inspector Suraj Singh who submitted his report to the Superintendent of Police on February 25, 1954."}}, {"text": "Two cases were registered against him under the Prevention of Corruption Act and the Penal Code", "label": "STATUTE", "start_char": 6344, "end_char": 6439, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 20, 1954", "label": "DATE", "start_char": 6601, "end_char": 6618, "source": "ner", "metadata": {"in_sentence": "They were also investigated by Inspector Suraj Singh, and the respondent was dismissed from service by an order of the Deputy Inspecto~ General o~ Police dated December 20, 1954."}}, {"text": "April 17, 1956", "label": "DATE", "start_char": 6665, "end_char": 6679, "source": "ner", "metadata": {"in_sentence": "He filed an appeal, brit it was dismissed on April 17, 1956."}}, {"text": "October 3(}, 1959", "label": "DATE", "start_char": 6951, "end_char": 6968, "source": "ner", "metadata": {"in_sentence": "It Was dismissed oa October 3(}, 1959; The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 196(}, in which he challenged the\n\norer of his dismissal on the ground, inter alia, that he had been appomted by the Inspector General of Police and that the Deputy Inspector Genr.al of Polic.e was not competent to dismiss him hy virtue of the prov1s1ons of article 311 ( 1) of the Constitution."}}, {"text": "Civil Judge, Etah", "label": "COURT", "start_char": 7019, "end_char": 7036, "source": "ner", "metadata": {"in_sentence": "It Was dismissed oa October 3(}, 1959; The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 196(}, in which he challenged the\n\norer of his dismissal on the ground, inter alia, that he had been appomted by the Inspector General of Police and that the Deputy Inspector Genr.al of Polic.e was not competent to dismiss him hy virtue of the prov1s1ons of article 311 ( 1) of the Constitution."}}, {"text": "January 7, 196", "label": "DATE", "start_char": 7041, "end_char": 7055, "source": "ner", "metadata": {"in_sentence": "It Was dismissed oa October 3(}, 1959; The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 196(}, in which he challenged the\n\norer of his dismissal on the ground, inter alia, that he had been appomted by the Inspector General of Police and that the Deputy Inspector Genr.al of Polic.e was not competent to dismiss him hy virtue of the prov1s1ons of article 311 ( 1) of the Constitution."}}, {"text": "article 311", "label": "PROVISION", "start_char": 7310, "end_char": 7321, "source": "regex", "metadata": {"linked_statute_text": "Two cases were registered against him under the Prevention of Corruption Act and the Penal Code", "statute": "Two cases were registered against him under the Prevention of Corruption Act and the Penal Code"}}, {"text": "State of !Jttar Pradesh", "label": "ORG", "start_char": 7352, "end_char": 7375, "source": "ner", "metadata": {"in_sentence": "The State of !"}}, {"text": "July 21, 1960", "label": "DATE", "start_char": 7706, "end_char": 7719, "source": "ner", "metadata": {"in_sentence": "The trial court dismissed the suit on July 21, 1960, mainly on the ground that the Deputy Inspector General of Police would be deemed to be the plaintiff's appointing .authority."}}, {"text": "February 15, 1963", "label": "DATE", "start_char": 8008, "end_char": 8025, "source": "ner", "metadata": {"in_sentence": "The District Judge upheld the trial court's judgment and dismissed the appeal on February 15, 1963."}}, {"text": "March 27, 1968", "label": "DATE", "start_char": 8142, "end_char": 8156, "source": "ner", "metadata": {"in_sentence": "which has been allowed by the impugned judgment of the High Court dated March 27, 1968, and the suit has been decreed."}}, {"text": "State of Uttar Pradesh", "label": "PETITIONER", "start_char": 8203, "end_char": 8225, "source": "ner", "metadata": {"in_sentence": "The appellant State of Uttar Pradesh has therefore come up in appeal to this Court by special leave.", "canonical_name": "STATE OF UT_TAR PRADESH"}}, {"text": "Somervell", "label": "JUDGE", "start_char": 10540, "end_char": 10549, "source": "ner", "metadata": {"in_sentence": "Courts have therefore treated such a course of ac'tion as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v.\n\nMallard(').-\n\n\"I think that on the authorities to which I will refer it would bei accurate to say that res judicata for this purpose is\n\n(1) [1939] 2 K.B. 426 at p. 437."}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 11834, "end_char": 11863, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "A. J. Stephens", "label": "OTHER_PERSON", "start_char": 12352, "end_char": 12366, "source": "ner", "metadata": {"in_sentence": "There A. J. Stephens moved fon a rule calling upon the authorities concerned to show cause why a mandamus should not issue."}}, {"text": "Denman", "label": "JUDGE", "start_char": 12668, "end_char": 12674, "source": "ner", "metadata": {"in_sentence": "Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he eould not have \"the same application repeated from time to time\" as they had \"often refused rules\" on that ground."}}, {"text": "Stephens", "label": "OTHER_PERSON", "start_char": 12698, "end_char": 12706, "source": "ner", "metadata": {"in_sentence": "Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he eould not have \"the same application repeated from time to time\" as they had \"often refused rules\" on that ground."}}, {"text": "England", "label": "GPE", "start_char": 12935, "end_char": 12942, "source": "ner", "metadata": {"in_sentence": "The same view has been taken in England in respect of renewed petition for certiorari, quo.warranto and prohibition, and, as we shall show, that is also the position in this country."}}, {"text": "K. C. Saxena", "label": "OTHER_PERSON", "start_char": 13546, "end_char": 13558, "source": "ner", "metadata": {"in_sentence": "We find that the High Court in this case took note of the decisions <if this Court in L. Janakimma Tyer and others v. P.\n\nNilakanta Tyer and others(8), Devllal Modi v. Sales Tax Officer, Ratlam and -Others(') and Gulabchand Chhotalal Parikh v. State of Bombay\n\n(supra) and reached the following conclusion :-\n\n\"On a consideration of the law as laid down by the Supreme Court in the above three cases I am inclined to agree with the alernative argument of Sri K. C. Saxena, learn-\n\n(2) 6 Q.B. 720."}}, {"text": "SUPREME COUTS REPORTS", "label": "PETITIONER", "start_char": 13646, "end_char": 13667, "source": "ner", "metadata": {"in_sentence": "SUPREME COUTS REPORTS [1977] 3 s.c."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 13893, "end_char": 13904, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 14302, "end_char": 14313, "source": "regex", "metadata": {"statute": null}}, {"text": "Janakirama lyer", "label": "OTHER_PERSON", "start_char": 14591, "end_char": 14606, "source": "ner", "metadata": {"in_sentence": "Janakirama lyer's was a case' wher0 the suit which was brought by defendants 1 to 6 was withdrawrr during the pendency of the appeal in the High Court and was dismissed.", "canonical_name": "Janakirama lyer"}}, {"text": "Order 1 rule 8", "label": "PROVISION", "start_char": 14833, "end_char": 14847, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 14848, "end_char": 14853, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 11", "label": "PROVISION", "start_char": 15138, "end_char": 15148, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15152, "end_char": 15179, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 11", "label": "PROVISION", "start_char": 15794, "end_char": 15804, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "Devi/al Modi", "label": "OTHER_PERSON", "start_char": 16020, "end_char": 16032, "source": "ner", "metadata": {"in_sentence": "The High Court then proceeded to consider this Court's decisions in Devi/al Modi's case (supra) and Gu/abchand's case (supra).", "canonical_name": "Devilal. Modi"}}, {"text": "Gu/abchand's", "label": "OTHER_PERSON", "start_char": 16052, "end_char": 16064, "source": "ner", "metadata": {"in_sentence": "The High Court then proceeded to consider this Court's decisions in Devi/al Modi's case (supra) and Gu/abchand's case (supra).", "canonical_name": "Gu/abchand's"}}, {"text": "Guiab~ chand", "label": "OTHER_PERSON", "start_char": 16079, "end_char": 16091, "source": "ner", "metadata": {"in_sentence": "Guiab~ chand's was the later of these two cases.", "canonical_name": "Gu/abchand's"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 16259, "end_char": 16270, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 32 and 226", "label": "PROVISION", "start_char": 18248, "end_char": 18267, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 18834, "end_char": 18841, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 18845, "end_char": 18853, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 18966, "end_char": 18976, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 19067, "end_char": 19074, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 19078, "end_char": 19086, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajenc(ragadkar", "label": "JUDGE", "start_char": 19605, "end_char": 19620, "source": "ner", "metadata": {"in_sentence": "Gajenc(ragadkar, J. who had spoken for the court in the second case of H Amalgamated Coalfields Ltd. spoke for the Court in that case also.", "canonical_name": "Gajenc(ragadkar"}}, {"text": "H Amalgamated Coalfields Ltd.", "label": "ORG", "start_char": 19676, "end_char": 19705, "source": "ner", "metadata": {"in_sentence": "Gajenc(ragadkar, J. who had spoken for the court in the second case of H Amalgamated Coalfields Ltd. spoke for the Court in that case also."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 20575, "end_char": 20602, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 21322, "end_char": 21336, "source": "ner", "metadata": {"in_sentence": "While taking that view, Gajendragadkar c.J., tried to explain the earlier decision in Amalgamated Coalfields Ltd. v. lanapada Sabha, Chhindwara(') and categorically held that the principle of constructive res judicata was applicable to writ petitions also.", "canonical_name": "Gajenc(ragadkar"}}, {"text": "Janakirama Iyer", "label": "OTHER_PERSON", "start_char": 21844, "end_char": 21859, "source": "ner", "metadata": {"in_sentence": "We have made a reference to the decision in Janakirama Iyer's case which has no bearing on the present controversy, and we may refer to the decision in Gulabchand's lease as well.", "canonical_name": "Janakirama lyer"}}, {"text": "article 226", "label": "PROVISION", "start_char": 22170, "end_char": 22181, "source": "regex", "metadata": {"statute": null}}, {"text": "Raghubar", "label": "JUDGE", "start_char": 22385, "end_char": 22393, "source": "ner", "metadata": {"in_sentence": "After a consideration of the earlier decisions in England and in this country, Raghubar, Dayal J., who spoke for the majority of this Court, observed as follows,-\n\nThese deciSions of the Privy Council well lay down that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect , to the same matter inter parties, and .do not preclude the application to regular suits of the general principles of res judicata based on public policy and applied from ancient times.\""}}, {"text": "Dayal", "label": "JUDGE", "start_char": 22395, "end_char": 22400, "source": "ner", "metadata": {"in_sentence": "After a consideration of the earlier decisions in England and in this country, Raghubar, Dayal J., who spoke for the majority of this Court, observed as follows,-\n\nThese deciSions of the Privy Council well lay down that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect , to the same matter inter parties, and .do not preclude the application to regular suits of the general principles of res judicata based on public policy and applied from ancient times.\""}}, {"text": "s. 11", "label": "PROVISION", "start_char": 22544, "end_char": 22549, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 22550, "end_char": 22555, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dev11al Modi", "label": "OTHER_PERSON", "start_char": 23109, "end_char": 23121, "source": "ner", "metadata": {"in_sentence": "...\n\nHe made a reference to the decision in Daryao land others v. The State\n\nA.. of U.P. and others(') on the question of res judicdta and the decisions in Amalgamated Coalfields Ltd. and others v. lanapada Sabha, Chhindwara(') and Dev11al Modi's case (supra) and summarised the decision of the Court as follows :-\n\n\"As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhausti\\ce with & respect to an earlier decision operating as res judicaJa between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in contrnversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a C: subsequent regular suit.", "canonical_name": "Devilal. Modi"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 23272, "end_char": 23277, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 23278, "end_char": 23283, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "article 311", "label": "PROVISION", "start_char": 25783, "end_char": 25794, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_437_454_EN", "year": 1977, "text": "UNION OF INDIA A v.\n\nCENTRAL INDIA MACHINERY MANUFACTURING CO.\n\nLTD. & OTHERS\n\nApril 6, 1977\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J E\n\nRajasthan Sales Tax Act, 1954-Section 2(0)-Defi11ition of sale-Sale of Goods Act, s. 64(a)-Distinction between contract of sale and work contract- Manufacturing and supplying wagons to Railways-Whether sale or work con~ tract-Tests to be applied-Interpretation of contract-When external aid pennissible.\n\nThe appellant and respondent No. 1 company entered into a contract for the manufacture and supply of wagons.\n\nBy the correspondence exchanged~ the number of wagons to be supplied and the pric'!. of wagon of each type was indicated. It was provided that the contract would be governed by the Standard Conditions in so far as they are not inconsistent with the correspondence exchanged betwen the parties. Under the Standard cond\\tions, _90 per cent of the payment had to be made against the Com4 pany submitting the bill to the purchaser together with the completion certificate and on payment of such 90 per cent price the vehicle in question would become the property of the purchaser. The balance of 10 per cent was to be treated as security for tl.te due fulfilment of the contract. The balance was to be received on the receipt of certificate from the purchaser to the effect that the actual delivery of the vehicle was taken and that the delivery was made in due time. One of the clauses provided that where any raw materials for the execution of the contract are procured with the assistance of the appellant the company would hold the said materials as trustee for Government and use such materials economically and solely for the purpose of the contract against which they are issued .and not dispose them of without -the permission of the Government and return, if required by the purchaser. all surplus or unserviceable materials that might be left after the completion of the contract or its termination for any reason whatsoever on his being paid such price as Government might fix with due regard to the condition of the material. Clause IO further provided that if and when the State and inter-State Sales Tax on the stock on order becomes payable under law such payments would be reimbursed by the Railway Board. The Railway Board, however, is not to be made liable for the payment of Sales Tax paid under misapprehension of la\\V.\n\nNo sales tax on 1naterials including steel and components would be reimbursed by the Railway Board. That the stores and articles shall be such as arc required for the execution of the contract and the advance made by the Railways is without prejudice. to the provisions of the contract and is subject to inspection and reiection of the stores.\n\nThat the said articles and materials shall at all times be open to inspection of any officer auLhorised by the Railwavs.\n\nThere are 3 categories of materials, the first category admittedly was the property .of the Railways; the second category is the material procured by the Company against 90 per cent advance; and the third category was at all times material of the Company. Paragraph 3 of the Jetter exchanged between the parties fixed the period of delivery. Para 4 provided for doing the packing of axle boxes by the Railway for which no packing charges were to be recovered from the Company. Section 2(o) of the Rnjasthan Sales Tax Act, 1954 defines sale as any transfer of property in goods for cash or for deferred payment or for any other valuable consideration.\n\nThe appellant relied on the following circumstances :\n\nUnder the Special Conditions read with the indemnity bond th~ property in the raw materials purchased by the Company for the construction of the\n\nSUPREME COURT REPOKTS\n\n(1977) 3 s.c.R.\n\nwagons passed to the Railway Board as soon as the latter advanced 90 per cent of the value of such material: which thereafter is held by the Company merely as an agent or trustee for the Board. Condition No. 5 obligates the contractor to hold \"as trustee for Government\" and ra\\v materials for the execution of the contract procured with the assistance of Government and further requires the contractor to use such materials economically nnd solely for the purpose of the contract against which they are' issued and not to dispose them of without the permission of the Govcrnn1ent. l_\"hc Rail~ way \\Vagon at the time of its delivery had no individual existence as the sole property of the Company.\n\nThe respondents contended that there \\Vas nothing in the Special Condi- ~· tions which militates or is inconsistent with the Standard Condition No. 15.\n\nThe Special Conditions, read as a whole show that the raw materials purchased by the Company against 90 per cent of advance payment do not become the property of the Railway Board or the Union of India h<c- ·-cause under the express tern1s of the contract such advance pay1nent 1s made towards the contract price of the wagons and not to, vards price of the materials.\n\nDismissing the appeal,\n\n.' HELD: (1) \"fransf'1' of property in goods for .n Pri.:e is the linch-pin of the definition of 'sale'. The difficulties in distinguishing bl!tween the contract of sale and work contract is an age-old one. It was n1uch debated even by the Roman Jurists. Accordin\"'g to Pollock & Mulla, the test v..ould\n\nbe whether the thing to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it. If the answer is in the affirmative it is sale of the thing otherwise not. Another rule is that if the main object of the contract is the transfer from A to B for a price of the property in a thing in \\Vhich B had no previous property then the contract is a contract of sale. According to Lord Halsbury, the distinction is often a fine one.\n\nA contract of sale is a contract whose main ob~ ject is the transfer of the property in and the delivery of the possession of a chattel as a chattel to the buyer. \\Vhere the main object of 'vork undertaken by the payee of the price is not the transfer of a chattel qua chattel the contract is one for work and labour. The test is whether or not the work and labour bestowed -and in anYthing that can properly become the \\vork and Jabour bestowed and in anything that can properly become the subject of sale, neither the ownersWp of materials nor the value of the skill and Jabour as compared \\Vith the value of the materials is conclusive, although such matters may be taken into consideration in determining in the . circumstancee of a particular case whether the contract is in substance one for \\\\'Ork and Jabour or one for the sale of a chattel. [446 F-H, 447 A-DJ\n\n(2) The question, whether a contract is one for sale of goods or for executing work or rendering services is largely one of fact depending upon the terms of the contract including the nature of the obligations to be discharged thereunder and the surrounding circumstances. In the present case the contract is expressly one for the manufacture and supply of wagons for a price. Price has been fixed taking the wagon as a unit. Payment .of the\n\nprice is made for each vehicle on its completion and delivery by the contractor to the purchaser who is described as the Union of India acting throu2h the Railway Board. The payment is made in two instalments; 90 per cent of the value of the vehicle on completion against an On Account Bi1t together \\Vith the completion certificate and 10 per cent after delivery.\n\nThe real intention of the contracting parties is primarily to be sought within the fourRcorners of the documents containing Standard and Special Condition of the contract. If such intention is clearly discernible from these documents it \\vould not be proper to seek external aid from the stereo-typed indemnity bond. The terms and conditions of_ the contract read as a \\vho1e undoubtedly lead to the conclusion that the property in the material procured or purchased by the Company i.'lg:ainst the 90 per cent value of which\n\nadvance i$ taien from the Railways, does not before their use in the cons 4 truction of the wagons, PllS8 to the Railways, for the following reasons :\n\n(a) On account payment upto 90 per cent is a part of the full contract price for each completed wagon; ·\n\n(b) Condition No. S while imposing restriction as to the use and disposal\n\nof material against which 11dvance is taken further gives a pro-emp- - tivc right to the Government to purchase all surplus or unservicea4 blo materials from the company on its \"being paid such price as Government may fix with due regard to the condition of material\".\n\nIf tbe material belonged to the Government or the Railways, no que5tion of purchasing the same from the Company could arise.\n\nNo one can be seller and purchaser of the same property at the same time.\n\n(c) Condition No. 10 which provides that no sales tax on materials including steel and components will be reimbursed by the Railway C Board clearly postulates that the Company becomes the owner ot the materials by purchase and, therefore, becomes liable to pay th& . sales tax. There is no condition or term in the contract that the material purchased by the Company a, fter drawing on Account pay. ment to the extent of 90 per cent of the value of the material became the property of the Railways. The conditions embodied in 1he contract read as a whole clearly show that the property in the material purchased by the company with the assistance of the Rail way, does not pass to the Railway. Thus, most of the raw mate D rials required for the construction of the wagons belong to the CQm .pany and not to the Railway Board. With the exception of a rela~ tively small proportion of the components, the entire wagon includ ing the material, at the time of its completion for delivery, is the property of the Company. ·\n\nClause 15 stipulates in unmistakable terms that as soon as a vehicle has been eompleted the Company will get it examined by the Inspecting Officer and submit to the purchaser an On Account Bill for 90 per cent of the valu• of the E vehicle. This clearly shows that the contract was in substance one for the sale of manufactured wagons by the Company for the stipulated prices. [441 G, 447 E-F, 4Sl B-H & 4SS B-C]\n\nMis. Hindustan Aeromiutics Ltd. Bangalore Division v. The Conunissioner of Commercial Taxes, Mysore [1972] 2 SCR 927 and State of Gujarat (Commis- .Tioner of Sales Tax, Ahmedabad) v. M/s. Variety Body Builders AlR 1976 SC\n\n2108, distinguished.\n\nPatnaik & Company v. State of Orissa [196S] 16 STC 369 (SC), followed.\n\nCrvIL APPELLATE JuRJSD!CTION : Appeal No. 1812 of 1969.\n\n(From the Judgment and Order dated 31-1- ~69 of the Rajasthan High Court in Civil Misc. Writ No. 733 of 1968).\n\nS. K. Mehta and Girish Chandra, for the appellant.\n\nS. T. Desai, G. A. Shah and S. K. Dholakia, for respondent No. 1.\n\nL. M. Singhvi, S. M. Jain and Indra Mapwana, for respondents 2-3. .\n\nLeila Seth and G. S. Chatterjee for the Intervener.\n\nThe Judgment of the Court was delivered by :\n\nSARKARIA, J.-Whether on the facts of this case, the contract <lated 15-6-1968 between the Union of India and the Central India\n\nJ\\:1achinery Manufacturing Company Ltd. (Wagon & Structural Divis10n) .Bharatpn_r (heremafter called the Company) for the manufacture and supply ot wagons, was a contract 01 sale or work contract, is the prmcipal quest10n that tails to be determmed in this appeal by certiJicate, filed by the Union of India against a judgment dated January 31, 1969 of the High Court of Rajasthan. It arises out of these facts : ·\n\nThe Com}lany, Respondent No. 1 herein entered into a contract (No. 67/RS(l)/954/15/396, dated 15-6-1968 with the Union of India through the Railway Board for the manufacture and supply of 258 BG Bogie covered .BCX type wagons and 812 MG covered wagons of M.BC type to the Railways.\n\nThe sales-tax authorities of the State (Respondent 3 herein) under the Rajasthan Sales Tax Act, levied' the sales tax treating the contract as one of sale and delivery of wagons.\n\nUnder a similar past contract, the appellant reimbursed the Company the amount of ales-tax for the wagons supplied by it o the appellant in the months of March and April, 1967. In March 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore ]); vision v. The Commissioner of commercial Taxes, Mysore,(') held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of works contract and therefore sales-tax .was not payable on 'such supplies. In view of this decision, the Railway Board by its Jetter dated June 7, 1968 informed the Company that the money paid by it to the Company which was not deposited with the Sales-tax Department should be refunded because the real nature of the transaction was that of a works contract and not a sale or purchase and therefore the Railway Board was not liable to reimburse the Company for the amount of sales-tax if any, paid by the Company to the State of Rajasthan.\n\nWhile in reply to the Railway Board at Company contended that the contract was for sale of wagons and not a contract for works, it took a contrary position in its representation to the Commissioner of Sales-tax, Rajasthan. Instead of giving any relief, the Sales-tax Department informed the Company that it should stop purchasing material on the strength of Form 'C' under the Central Sale8-tax Act.\n\nSuch stoppage would have saddled the Company with a further liability to pay tax at the enhanced rate on the purchase of material used for the manufacture of wagons.\n\nThe Commercial Tax Officer provisionally assessed the Company under s. 7 (D) of the Rajasthan Sales-tax Act on the Sale of wagons to the Railway Board for the month of May 1968, and served a demand notice for payment of Rs. 1,91,827/79p. including Rs. l,899.29p/ as penalty.\n\nSince the Company was registered as a d<; aler under the Sales-tax Act, it had to bear, in the first instance, the charge of the tax although its incidence normally passes on to the purchaser, in the absence of a contract to the contrary under the provisions of s. 64(a) of Sales of Goods Act.\n\nBy its letter of August 14, 1968, the Railway Board finally informed the Company that, in future it would not reimburse the Company for the sales-tax if paid by it in connection with the supply of wagons.\n\n(I) [1972] 2 S.C.R. 927.\n\n1 •\n\n'Che Company thereupon invoked the writ jurisdiction of the High Court by a petition under Article 226 of the Constitution.\n\nIn tlie writ petition, the Commercial Taxes Officer Special Circle Jaipur, the\n\nUnion of India through the Railway Board and the State of Rajasthan were impleaded as Respondents.\n\nThe relief prayed in the petition was :\n\n\"(1) That an appropriate Order be made determining whether the contract in question is in the nature of a contract for sale of goods, or works contract. .\n\n(2) That in the event of a finding that the contract is in reality a contract for sale the respondent Union of India b!l prohibited from claiming refunct from the petitioner of the sum of Rs. 1,56,703.20 lying in its hands for payment of Sales Tax.\n\n(3)\n\n( 4) That an appropriate writ, Directive or Order be made directing the respondent Union of India through\n\nthe Railway Board to reimburse the Petitioners in D respect of Sales Tax for the purchases from May 1968 onwards from month to month.\"\n\nThe writ petition was contested by the Union of India, inter ali11, on the ground that the contract in question was contract or works and not a contract of sale. The State of Rajasthan and the Commercial Taxes Officer in their joint reply contended that the contract was one for sale of wagons.\n\nAt the final hearing before the High Court all the parties requested the Court to resolve the dispute in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution, notwithstanding the availability of an alternative remedy.\n\nThe Court, in consequence, proceeded to decide the dispute on merits.\n\nAfter examining in detail the terms and conditions of the contract as disclosed by the relevant documents on the record, the High Court took the view that the contract in question was a contract for the manufacture and Sale of wagons to the Union of India by the Company anct as such sales-tax was payable on these transactions. It thus decided the main issue against the Union of India and allowed the writ petition.\n\nHence this apeal by the Union of India.\n\nThe question, whether a contract is one for sale of goods or for executipg works or rendering service.s, is largely one of fact, depending upon the terms of the Contract, including the nature of the obligations to be discharged thereunder and the surrounding circumstances.\n\nIt is therefore, necessary to examine the terms and conditions of the\n\ncontract in question.\n\nThere is no consolidated contract deed formally executed by the parties, on record.\n\nThere are however, several documents, including\n\nA the correspondence between the parties, which embody the terms and conditions of the contract. -\n\nBy its letters No. 67/RS(I)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the Company, the farmer's acceptance of the offer made by the Company in its earlier letters, including the letter, dated 12-12-1967, to manufacture and supply, B. G. Bogie covered wagons BCX Type and M. G. Covered wagon MBC Type. The numbers of the wagons to be supplied and the price per wagon of each type were indicated in these letters.\n\nParagraph 2 ?f the letter, dated December 23, 1967, stated:\n\n\"2. Terms and Conditions : The contract shall be governed by the General Conditions of Contract A5-51 (Revised) in so fa~ as these are not inconsistent with the Special Conditions of contract attached as per Annexure 'A' and these given in Paras 3 and 7 below.\"\n\nParagraphs 3 to 6 of the letter provide as under :\n\n\"3. Delivery : The delivery of the stock F.O.R. your works siding is required to be completed by 30-6-69.\n\n\"4. Packing of axle boxes : Packing of axle boxes (Wherever necessary) will be done by Western Railway.\n\nNo packing charges on account of the same will be received from you.\"\n\n\"5. Inspecting Authority : Joint Director\n\n(R.I.), E R.D.S.D., Calcutta or his representative shall constitute the Inspecting Authority for the inspection of stock built by you against this order. '6. Accounting and payments: F.A. & C.A.O., Northern Railway, New Delhi will maintain accounts and arrange all payments.\" F Para 7 dealt with \"Material Escalations\", while in para 8 it was\n\nexpressed that the order was being issued in the name of the President of India.\n\nNow the salient Standard Conditions referred to in paragraph 2 of this Jetter may be seen.\n\nConditions 1 and 2 are as follows : \"l. The\"Purchaser\" means the President of India in the case of carriage underframes and goods wagons (hereinafter called vehicles) ordered for Indian Railways.\"\n\n2. \"The work\" includes materials of every kind .... \"\n\nStandard Condition 15 is crucial and may be extracted in full.\n\n\"SYSTEM OF PAYMENT\n\n15. Payments for completed vehicles delivere_d by the Contractor shall be made in two instalments, viz. 90 per\n\n' (\n\n' •\n\n.UNION v. CENTRAL INDIA MACHINERY (Sark aria, !.) 44 3\n\ncent on completion and 10 per cent as provided in paragraph A\n\n(2) of this clause.\n\nThe procedure for such paymenfs will be as follows :\n\n(I) The Contractor on receipt of a Certificate signed by the Inspecting Officer (whose decision shall be final) to the effect that one or more vehicles have been completed will submit to the Purchaser on account bill for 90 per cent of the yaJue of vehicles in question, together with the completion certificate, the Purchaser will pay the 90 per cent bill, and on payment of this bill the vehicles in qiiestion will become the property of the Purchaser. (underlining ours)\n\n(2) The balance of 10 percent shall be treated as security for the due ftilfilment 9f the contract and the Contractor shall be entitled to receive payment of the balance of 10 per cent on vehicles as completed on his receiving a certificate from the Purchaser to the effect that the actual delivery of the vehicles m question has been taken, that the deEvery was made in the due time, and that the Contract has been duly fulfilled in every respect in so far as it relates to the completed vehicles.\n\nCondition 16 lays down that if the \"defect arises from inferiority of material or workmanship, or from imperfect protection or other default on the Contractor's part, the Railway shall be at liberty to ask the Contractor to remedy the defect and deduct from any money E due to the Contractor.\n\nThe Special Conditions of Contract contains in Annexure 'A' to he letter dated 23-12-1967, are as under:\n\nSPECTAL CONDTTTONS\n\nl.3 Material Escalations : Adjustments due to variations in the cost of mater'al will be confined to the variations in the prices of steel at Col. 1 rate through Governmental action for controlled categories and those fixed by J.P.C. for de-controlled categories of steel. The escalation would be allowed in respect of such of the quantities of the material which were purchased and paid for the manufacture of wagons on order after the variation in price over the base date and subject to examination of the actual amounts paid for the supply of such tonnage of steel which is considered reasonable for the manufacture of the wagons on order and for which prices have varied over the base date whether supplied to the Contractor or sub-contractor ....\n\n4. Specifications and Drawings : H\n\nThe stock shall be built conforming to specifications and drawings indicated in the order which are obtainable on\n\npayment frQlil the Research Design and Standards Organisation, Lucknow, with such modifications as may be required or approved by the Railway Board, from time to time during the execution of this contract.\n\nThe basic price shall have reference to the specification shown in the order.\n\nAny modification to specification or design shall be subject to price adjustment over and above the basic price ............ \"\n\nSpecial Condition 4 is important. A good deal of argument was made as to whether 90% advance made under this Condition should be taken as pyment towards the price of the material or towards the price of the wagons.\n\nThis condition reads :\n\n\"4. Terms of Paymens :\n\n(a) 'On Account' payment upto 90% of the value .of steel and other raw materials procured by the firm for this order will be made against such materials, on its receipt in the firms' works, on production of a certificate to that effect from the concerned officer of the Inspection and Liaison Organisation and on the firm furnishing nece'ssary indemnity bond to the paying Authority.\n\nNote : 'On Account' payment wil\\ be permissible on steel procured according to Joint Director (Iron & Steel), Calcutta's planning after taking into consideration any steel offers from the floating stock held by the Railways. If such offers are refused and steel of similar quality is obtained from other sources such quantities will be excluded from 'On Accounf payment.\n\nThe claim for 'On Account' payment will be accompanied by a further certificate that similar , steel has not been offered from the floating stock held by the Railways and refused by the Wagon Builders.\n\n(b) Payment of 90% of the full contract price less 'On\n\nAccount' payment already made vide (a) above will be made on production of inspection certificate for each completed wagon.\n\n(c) Payment of the balance 10% of the contract price will be made on tjle certification by the consignee Railways that wagons have been received in com- . plete condition and in good working order, provided that the payment so made shall be provisional and subject to adjustment and finalisation by deduction of rebate in acordance with provision of clause 1.4.\"\n\n(underlining ours)\n\n.. ,...,,\n\n•' •\n\nff' '\n\n\"\"' •\n\ni •\n\n; •\n\nThe other material Special Conditions are : A\n\n\"5. USE OF RAW MATERIALS SECURED WITH\n\nTHE GOVERMENT ASSISTANCE : -\n\n\\Vhere any raw materials for the execution of the contract are procured with the assistance of Government either by issue from Government stock or purchase under arrangements made or permit(s) or licence(s) issued by Government, the Contractor shall hold the said materials as trustee for Government and use such materials economically and solely for lhe purpose of the contract against which they are issued and not dispose of them, without the permission of the Government and return, if required by the purchaser, all surplus or unserviceable materials that may be left with after the completion of the contract or at its termination for any reason whatsoever, on his being paid such price_ as Govemme.nt may fix with due regard to the condition of the material.\n\nThe freight charges for the return of the materials according to the directions of the purchaser shall be borne by the Contractor, in the event of the contract being cancelled for any default on his part.\n\nThe decision of Government shall be final and conclusive.\n\n(underlining ours)\n\n\"10. Sales Tax : If and when State and Inter-State Sales Tax on the stock on order becomes payable under Law E such payments will be reimbursed by the Railway Board.\n\nThe Railway Board will, not, however, be responsible for the payments of sales tax paid under mis-apprehension of Law.\n\nNo sales tax on materials including steel or components will be reimbursed by the Railway Board. (underlining ours) F\n\nThe material part of the Indemnity Bond which was subsequently executed by the Company in connection with the Contract, provide :\n\n\"Wperyas under Railway Board's order No. 67 / RS(l)/954/15 dated 23-12-1967, the said Contractor has been given the contract for manufacture of 258 Nos. B.G. covered wagons BCX type with Transition type Centre Buffer couplers at both ends and 812 numbers MG covered wagons MBC type (1968-69 R.S.P.) at Bharatpur. And whereas advance payment are to be made by the Railways to the Contractor against Railway Board's said order_ ...\n\nThat the Contractor shall hold at his works at Bharatpur and/or at the works of his sub-contractors the Stores and articles of the Railways in respect of which advance may be made to him against the sajd order.\n\n2-502SCI/77\n\nThat the said Stores and articles shall be such as are required for the execution of the above contract and the advance made to him by the Railways is withou.t prejudice to the provision of the contract and is subject to inspection and rejection of the Stores and any advance made against stores and articles rejected or found unsatisfactory on inspection shall be refunded immediately to the Railways.\n\nThat the Contractor shall be solely responsible for the safe custody and protection of the said stores and articles against all risks till _they are duly delivered to the Railways or as they may direct.\n\nThe said artic/.ee and materials shall <it all times be open lo inspection of any officer authorised by th.e Railways. (underlining ours)\n\nNow these presents witnesseth that the Contractor .... hereby undertakes to indemnify the Railway~, should any loss or damage or deterioration occur in respect of the said stores and articles while in his possession or in the possession of his sub-contractors or if any refund becomes due to the Railwa)1S without prejudice to any other remedies available, the Railways may also deduct such amount from any sums due, or any sum which at any time hereinafter may become due to the Contractor .......... \"\n\nClanse (o) of S. 2 of the Rajasthan Sales Tax Act, 1954, defines \"sale\".\n\nIt says : \" 'Sale' with all its grammatical variations and cognate explanations, means any transfer of property in goods for cash or for deferred payment or for any other valuable consideration, and inclndes a transfer of goods on the hirepurchase or other system of payment by instalments .... \"\n\nThus, transfer of property in goods for a price is the linchpin of the definition.\n\nUnder Section 4 the Sale of Goods Act, 1930, also, in the definition of the term \"sale\" stress is laid on the element of transfer of property in the goods.\n\nAccording to the Roman jurists, also, the purport of a contract of sale is that the seller divests himself of all proprietary right in the thing sold in favour of the buyer.\n\nIt is this requisite which often distinguishes a contract of sale of goods from a contract for work and services.\n\nEven so, the difficulty of di'stinguishing between these two types of contracts is an age-old one.\n\nIt was much debated even by the Roman jurists (see Inst. III, 24,4, and De Zuluete, The Romaro Law of Sale, pp. 15, 16). Difficulty has also been felt in England and other Common law jurisdictions to the effect of a contract to make a chattel and deliver it whn made. Generally, such , i contract is one of sale of Chattel, but not alwas.\n\nJurists have differed much and striven much about the test for distinguishing between these two types of contracts. Since each contract presents its own. features, and imp?nderables t h_as not been possible to devise an mfallible test of umversal apphcat10n. Accordino to Pollock & Mulla, \"the test would seem to be whether the thing\n\n' •\n\n' •\n\nto be delivered has any individual existence before delivery as the A sole nronertv of the nart.v who is to deliver it\". If the answer is in the affirmative, it is -a 'sale' of the thing, otherwise not.\n\nAnother learned author enunciates that \"the general rule deducible from the cases seems to be that if the main object of the contract is the transfer from A to B, for a price, of the property in a thing in which B had no previous property, then the contract is a contract of sale,\" (See Chalmers' Sale of Goods, 16th Edn, page 52). The broad criteria B for distinguishing between these two types of contracts have been neatly summed up in Halsbury's Laws of England, (3rd Edn., Vol. 34, page 6) thus :\n\n\"A contract of sale of goods must be distinguished from a contract for work and labou.r.\n\nThe distinction is often a fine one.\n\nA contract of sale is a contract whose main C object is the transfer of the property in and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour.\n\nThe .test is whetQer or not.the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownershi•p D of materials, nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel.\"\n\nLet us now apply the above criteria to the contract in question. The contract is expressly one for the manufacture and supply of wagons for a price.\n\nPrice has been fixed taking the wagon as a unit. Payment of the price is made for each vehicle on its completion and delivery by the contractor to the Purchaser, who is described as the Union of India acting through the Railway Board.\n\nSuch payment\n\nis made in two instalments, viz., 90 per cent of the value of the F vehicle on completion against an 'On account' bill, together with the Completion Certificate from the Inspecting Officer appointed by the Railway Board, and the balance of 10 per cent after delivery. If clause ( 1) of the Standard Condition 15 is not inconsistent with anything in the Special Conditions, and as we shall presently notice it is not so-it clinche's the issue in as much as it declares in unequivocal terms the invention of the contracting parties that on pay- G mcnt of the 90 per cent of the value, 'the vehicles in question will become the property of the purchaser.\" Prima facie, the contract in question has all the essenti'al attributes of' a contract of sale of moveable.\n\nThat is to say, hare is an agreement to sell finished goods manufactured by the Sellers (Company) for a price, the property in the goods paS'sing to the Purchaser, on completion and delivery pur\n\nsuant to the agreement. .\n\nMr. Mehta, learned counsel for the appellant, contended that what clause (1) of Standard Condition 15 appears to convey about\n\nthe transfer of fhe properly in the completed vehicle stands inferentially negated an~ superseded by the terms of the Special Conditions and the lndemmty Bond to which the Standard Conditions are subject.\n\nIt is urged that under Special Conditions read with the Indemnity Bond the property in the raw material purchased by the Company for the construction of the wagons, passed to the Railway Board as soon as the latter advance 90 per cent of the value of such material, which thereafter is held by the Company merely as an agent or trustee for the Board.\n\nOur attention has been in'lited to Special Condition 4 under which 'On Account' payment upto 90% of the value of 'steel and other materials\" procured by the Company for this Order\" will be made against such materials, on production of a certificate from the officer of the Inspection and Liaison Organisation and on furnishing necessary indemnity Bond to the Paying Authority.\n\nWe are also adverted to the Note under clause (a) of that Condition, according to which ''On Account\" payment will not be permissible against steel procured by the Company from a source other than the floating stock held by the Railway's, except when an offer to procure it from that source is refused.\n\nCounsel has also referred to Special Conditions. 5 which obligates the contractor to hold \"as trustee for Government\" any raw materials for the execution of the contract\" procured with the assistance of Government either by issue from Government stock or purchase under arrangement made or permit(s) or licence(s) and to \"use such materials economically and solely for the purpose of the contract against which they are issued and not dispose of them, without the permission of the Government.\" Mr.\n\nMehta further pointed out that under Special Condition 6, other essential components, viz., wheelsets for all the stock '(and roller bearing axle boxes and C.F. couplers wherever applicable) are supplied to the contractor free of cost F.O.R. against a proper undertaking for their safe custody.\n\nCounsel further took us through the contents of the Jndemnhy Bond and placed special emphasis on its clause :\n\n\"That the contractor shall hold at bis works at Bharatpur and/or at the works of his Sub-contractors the Stores and articles of the Railways in respect of which advance may, be made to him against the said order.\"\n\nFrom a conjoint reading of the Special Conditions 4, 5, 7 and the Indemnity Bond it is sought to be spelt out that all the raw materials and components used in the manufacture of the wagons, belonged to. the Railway Board; such materials were either procured under Special Condition 4 against 90% 'On Account' payment which should be taken as a payment towards the price of the material purchased and held by the Company on behalf of the Railway Board, or procured under Special Condifain 6 fee of cost; It i's main; ained that since purchases of raw matenal agarnst 90% On Account payment were made by the Company on behalf of and/or the Railway Board, that was why in the Indemnity Bond, the \"stores nd articles\" in respect of which the advan.ce has been '?ade by the Ralway Boar?, are described as 'of the Railways\". It 1s further submitted t11at m view of the facility avai_lable to the contractor, there was li!tle or no possibility of any materials other than those procured agamst 90%\n\n• '\n\n'on account' payment, or supplied free of cost by the Railway under Special Condition 6, being used in the manufacture of the wagons by the Company. In sum, the proposition propounded is that since the raw materiajs and components used in the manufacture of a wagon under the terms of the contract belonged to the Railway Board, the wagon produced had, at the time of its completion and deliverv, uo individual existence as the sole property of the Company. '\n\nAlthough counsel has not specifically cited from Pollock and Mulla's commentary on the Sale of Goods Act, the test sought to be invoked is the same which has been suggested by the learned authors. fodged by this test, proceeds the argument, the contract in question is not a contract of sale of wagons, but one for work and labour.\n\nIn support of his contentions, Mr. Mehta relies on three decisions of this Court :\n\ni M/s. Hin;/u:Ytan Aeronautics Ltd., Bangalore Division v. The Commissioner of Commercial Taxes, Mysore(') State of Gujarat v.\n\nKai/ash Engineering Co.( 2) and the other in State of Gujarat (Commissioner of Sales Tax, Alunedabad), v. M/s.\n\nVariety Body Builders(').\n\nAccording to counsel, the terms and conditions of the contract which came up for consideration in M/s. Hindustan Aeronautics were substantially the same, and there it was held that the contract was one for work and not of sale of vehicles. On the other hand, Dr. L. M. Singhvi, Learned Advocate-General appearing for the State of Rajasthan, and Shri S. T. Desai, learned counsel appearing for the Company have pointed out that there is nothing in the Spedal Conditions which militates against or is inconsistent with the Standard Condition 15; that the Special Conditions, read as a whole, show beyond all doubt that the raw materials purchased by the Company against 90% advance payment do not become the property of the Railway Board or the Union of India, because under the express terms of the contract, such advance payment is made towards the \"contract price\" of the wagons and not towards the price of the materials purchased by the Company, although to safeguard the interests of the Railway Board some restrictions have been placed with regard to the use and disposal of those materials on the Company who had become aware thereof by purchase for a price.\n\nIn refutation of the stand taken by the appellant, it is asserted that under the terms and conditions of the contract, it is not obligatory for the Company to purchas'~ all the materials required for the con'struction of the wagons, from the Government stores or with the assistance of the Government against 90% advance payment.\n\nIt is submitted that in accord with the terms of the contract, lot of raw material against which no such advance was taken, was purcha.sed by the Company and used in the construction of the wagon.\n\nWith our permission, an affidavit has been filed before us on behalf of the Company to support this assertion of fact.\n\n\n(2) [1967] '95 S.T. (1360).\n\n(3) A.LR. 1976 S.C. 2108.\n\n!ff\n\nDr. Singhvi has further submitted that the terms of the contract in question are materially different from those which were in question in Hindustan Aeronautics case and in Mis. Variety Body Builders\n\n(supra) and consequently those decisions cannot govern the instant case. According to the Counsel, the instant case is more in line with the decisions of this Court in Patnaik and Company v.\n\nState of Orissa(') and T. V. Sundram Iyengar & Sons v. State of Madras.(2)\n\nThe first question for consideration is : whether all the raw materials used in the construction of the wagons are those against the 90% value of which advance is drawn by the Company from the Railway under Special Condition 4 ?\n\nIn this connection, it may be noted that there is nothing in the terms and conditions of the contra!'! which expressly or by necessary implication binds the Company to procure and use only this raw material for which advance has been drawn by it from the Railway.\n\nThere is positive evidence (i.e. unrebutted affidavit of Shri C. P.\n\nGupta, Senior Accounts and Finance Officer of the Company) that in execution of the contract in question, the Company has used such raw material also against which no advance was drawn from the Railway.\n\nThe raw material u'sed in the manufacture of the wagons may be split up into !hree categories :\n\n1. Wheelsets, axle boxes supplied by the Railway free of cost (vide Special Condition 6).\n\n2. Raw materials such as steel against which advance was drawn.\n\n3. Raw materials against which no such advance was drawn.\n\nThe first categury was admittedly the property of the Railway.\n\nThere can be no dispute that the third category was, at all times material, the property of the Company.\n\nControversy converges on category (2). Does such material procured by the Company, against\n\n90% advance, become. the property of the Railway before its use in the manufacture of the wagons ? Should the \"on account\" payment received from the Railway by the Company under Special Condition 4, on 90% of the value of the materials, be taken as payment towards the price of the materials ? Or, should it be taken as payment towards the price of the wagons ?\n\nAnswers to these questions turn on a construction of the terms and conditions of the contract.\n\nA correct construction, in turn, depends on a reading of the Standard and Special conditions as a whole. It would not be proper to cull out a sentence here or a sub-clause there and read the same in isolation.\n\nAgain what is required is not a\n\n<n [t965J 16, s.r.c. 369 (s.c.).\n\n(2) [t975J 35, S.T.C. 24 (S.C.).\n\nfragmentary examination in parts but an overall view and under- A standing of the whole.\n\nAgam, it is the substance of the documents constituting the contract, and not merely the Form which has to be looked into.\n\nThe real intention of the contracting parties is primarily to be sought within the four corners of the documents containing Standard and Special Conditions of the Contract. If such intention is clearly B discernible from these documents, it will not be proper to seek external aid from the stereotyped Indemnity Bond which is not only collateral but also posterior in point of time to the contract. It will bear repetition that there is no conflict or inconsistency between Standard Condition 15 and the Special Conditions.\n\nThe terms and conditions of the contract, read as a whole, indubitably lead to the conclusion that the property in the materials procured or purchased C by the Compa_ny, against the 90% value of which advance is taken from the Railway, does not before their use in the construction of the wagons, pass 'to the Railway.\n\nReasons for arriving at this conclusion are as under :\n\n(i) Clause (a) of Special Condition 4 which provides for \"On D Account\" payment upto 90% of the value of steel and other raw materials procured by the firm (Company) is to be read with Clause\n\n- (b) which makes it clear that such 'On Account' payment is a part of the \"full contract price\" \"for each completed wagon\".\n\n(ii) Condition 5 while imposing restrictions as to the use and disposal of materials against which advance is taken, further gives a E pre-emptive right to the Government to purchase all snrplns or unserviceable materials from the Company on its \"being paid such price as Government may fix with due regard to the condition of the material\". If the materials belonged to the Government or the Railway, no question of purchasing the same from the Company could arise. No one can be a seller and purchaser of the same property at the same time.\n\n(iii) Special Condition 10 provides in unequivocal terms that no Sales Tax on materials including steel or components will be reimbursed by the Railway Board\".\n\nThis condition postulates tw<> things : First, that the Company becomes the owner of the materials by purchase and therefore, in that capacity becomes liable to the charge of Sales Tax which it cannot, because of this covenant to the contrary, pass on to the President/Railway Board.\n\nSecond, such steel and components are not the property of the Railway.\n\nThey were not supplied by the President/Railway free of charge under Special Condition 6.\n\n(iv) There is no condition or term in the contract that the mate- H rial purchased, by the Company after drawing 'on account' payment to the extent of 90% of the value of the material shall become the property of the Railway.\n\n(v) Standard Condition 16 provides that if within twelve months after delivery, any \"defect arises from inferiority of material or workmanship\" the Company shall be liable to remedy the defect, and to\n\ndeductio~ of money due to it.\n\nThis Condition also presupposes that the mfenor material used was not the property of the Railway but of the Company.\n\n(vi)_ The stipulation in the Indemnity Bond making the Company responsible for safe custody and protect10n of the \"Stores and articles\" against. all risks till they are duly delivered to the Railway, or as they may d!fect, nor the use of the words \"of the Railway'', therein, in our opinion, in the face of clear Conditions of the contract, is a ground to hold that the materials purchased by the Company for construction of the wagons would become the property of the Railway immediately on advance of an amount equal to 90 % of their value under Special Condition 4.\n\nAs rightly pointed out by the High Court the word 'of' in the expression \"Of the Railway\" used in the Indemnity Bond in the context of \"stores and articles\" appears to have been loosely used. Moreover these \"stores and articles\" might include the wheel sets and articles supplied by the Railway free of charge from its stores under Special Condition 6.\n\nThe expression Of the Railways' might have been possibly used in the context of such components belonging to the Railway.\n\nFurthermore under Condition 5, in respect of all surplus material, the Railway had been given a right of preemption.\n\nEven so much capital cannot be made out of the use of this loose expression in the Indemnity Bond, when the Conditions embodied in the contract documents read as a whole, clearly show that the property in the materials purchased by the Company with the assistance of the Railway /Government does not pass to the Railway.\n\nThe upshot of the above discussion is that with the exception of wheelsets (with axle boxes and couples), substantially all the raw materials required for the construction of the wagons before their use belong to the Company and not to the President/Railway Board. In other words with the exception of a relatively small proportion of the components supplied under Special Condition 6, the entire wagons including the material at the time of its completion for delivery is the property of the Company.\n\nThis means that the general test suggested by Pollock and Chalmers has been substantially albeit not absolutely satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the Company being the seller and the President/Railway Board being the buyer. It is true that technically the entire wagon including all the material and components used in its construction cannot be said to be the sole property of the Company before its delivery to the Purchaser.\n\nBut as pointed out by Lord Halsbury in the above quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and' labour as compared with the value of the materials used in the manufacture is conclusive.\n\nNevertheless, if the hulk of the material used in the construction belongs to the manufacturer\n\nwho sells the end product for a price that will be a strong pointer A to the conclusion that the contract is in substance one for the sale of goods and not one for work and Jabour.\n\nBe that as it may Clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract.\n\nThis clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the Company will get it examined by the Inspecting B Officer and submit lo the Purchaser an 'On Account' Bill for 90% of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the Purchaser will pay 90% biJJ and on such payment, the vehicle in question will become the property of the Purchaser.\n\nThere could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured C wagons by the Company for a stipulated price.\n\nWe would therefore affirm the finding of the High Court on this point.\n\nThe ratio o._f Hindustan Aeronautics (supra) is not applicable.\n\nThe present case has some special features which did not figure in D Hinduslxm Aeronautics.\n\nIn that case from the terms and conditions of the contract then under consideration and the report of the Commercial Tax Officer, these facts appeared to be well established :\n\n(i) the material used in the construction of coaches before its use was the property of the Railway.\n\n(ii) There was no possibility of any other material being E used excepting which belonged to the President/Railway before its use in the construction of-coaches-purch.\n\nThis fact was borne oui from the report of the Commercial Tax Officer.\n\n(iii) Further in the contract in question in that case, there was no term corresponding to Clause ( 1) of Standard F CoQdition 15.\n\nThis Court therefore found that the difference between the price of a coach and the cost of material could only be the cost of services rendered by the assessee.\n\nSuch is not the case here.\n\nThe bulk of the material used in the construction of the wagons, as already discussed above, in the instant case belongs to the Company before its use.\n\nState of Gujarat (Commissioner of Sales, Tax, Ahmedabad) v. ..\n\nM/s.\n\nVa_rity !lady Builders (supra) cited by Shri Mehta, also is clearly d1stmgmshable from the fads of the instant case.\n\nThere the bulk of the. materials nsed in the construction of coaches was supplied by the Raiiway.\n\nEven labour was supplied by the Railway.\n\nThe contractor mainly contributed his labour and skill to manufacture H the end product, being the Railway Coaches, under the constant supervision and control of the Railway.\n\nFrom the totality of the material terms and conditions in the agreement, in that case, it was\n\nnot possible to hold that the parties intended that the Contractor transferred the property in the coach to the Railway after its completion.\n\nReality of the transaction as a whole indicated that the contract was one for work and labour while in the instant case the converse is true.\n\nThe case before us is more in line with the decision of this Court in Patl1flik and Company v. State of Orissa (supra) .. The appellants therein had en.tered into an agreement with the State_ of Orissa for the construction of bus-bodies on the chassis . supplied by the Governor.\n\nThe agreement provided inter alia that the appellants . were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft etc. at their own cost. The appellants had to construct the bus-bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications.\n\nThey had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or Officers authori'sed by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality and on receipt of a written. order the appellants had to dismantle or replace such defective work or material at their own cost The Builders were entitled to 50% of the cost of the body-building at the time of delivery and the rest one month thereafter.\n\nThe question before the Constitution Bench of this Court was whether on these facts, the contract was one for work or a contract for sale of goods.\n\nThis Court held (by majority) that the contract as a whole was a contract for 'sale of goods and therefore the appellants were liable to sales-tax on the amounts received from the State of Orissa for the construction of the bus bodies. Jn reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus-body did not pass to the Government till the chassis with the bus-body was delivered at the destination to be named by the Controller.\n\nTill the delivery was made the busbody remained the property of the builder. This clinching circumstance also prominently figures in Standard Condition 15 in the instant case, also.\n\nFor the foregoing reasons, the appeal fails and is dismissed with costs.\n\nP.H.P. 'Appeal dismissed.", "total_entities": 81, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "CENTRAL INDIA MACHINERY MANUFACTURING CO.\n\nLTD. & OTHERS", "label": "RESPONDENT", "start_char": 21, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "CENTRAL INDIA MACHINERY MANUFACTURING CO. LTD. & OTHERS", "offset_not_found": false}}, {"text": "April 6, 1977", "label": "DATE", "start_char": 79, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "OTHERS\n\nApril 6, 1977\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J E\n\nRajasthan Sales Tax Act, 1954-Section 2(0)-Defi11ition of sale-Sale of Goods Act, s. 64(a)-Distinction between contract of sale and work contract- Manufacturing and supplying wagons to Railways-Whether sale or work con~ tract-Tests to be applied-Interpretation of contract-When external aid pennissible."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 95, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 115, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 134, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Rajasthan Sales Tax Act, 1954", "label": "STATUTE", "start_char": 157, "end_char": 186, "source": "regex", "metadata": {}}, {"text": "Section 2(0)", "label": "PROVISION", "start_char": 187, "end_char": 199, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Sales Tax Act, 1954", "statute": "Rajasthan Sales Tax Act, 1954"}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 220, "end_char": 237, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 64(a)", "label": "PROVISION", "start_char": 239, "end_char": 247, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "Section 2(o)", "label": "PROVISION", "start_char": 3353, "end_char": 3365, "source": "regex", "metadata": {"statute": null}}, {"text": "Rnjasthan Sales Tax Act, 1954", "label": "STATUTE", "start_char": 3373, "end_char": 3402, "source": "regex", "metadata": {}}, {"text": "SUPREME COURT REPOKTS\n\n(1977) 3 s.c.R.", "label": "COURT", "start_char": 3729, "end_char": 3767, "source": "ner", "metadata": {"in_sentence": "The appellant relied on the following circumstances :\n\nUnder the Special Conditions read with the indemnity bond th~ property in the raw materials purchased by the Company for the construction of the\n\nSUPREME COURT REPOKTS\n\n(1977) 3 s.c."}}, {"text": "Union of India", "label": "ORG", "start_char": 4808, "end_char": 4822, "source": "ner", "metadata": {"in_sentence": "The Special Conditions, read as a whole show that the raw materials purchased by the Company against 90 per cent of advance payment do not become the property of the Railway Board or the Union of India h<c- ·-cause under the express tern1s of the contract such advance pay1nent 1s made towards the contract price of the wagons and not to, vards price of the materials."}}, {"text": "Pollock", "label": "JUDGE", "start_char": 5285, "end_char": 5292, "source": "ner", "metadata": {"in_sentence": "Accordin\"'g to Pollock & Mulla, the test v..ould\n\nbe whether the thing to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it.", "canonical_name": "Pollock"}}, {"text": "Mulla", "label": "JUDGE", "start_char": 5295, "end_char": 5300, "source": "ner", "metadata": {"in_sentence": "Accordin\"'g to Pollock & Mulla, the test v..ould\n\nbe whether the thing to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it.", "canonical_name": "Mulla"}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 5752, "end_char": 5760, "source": "ner", "metadata": {"in_sentence": "According to Lord Halsbury, the distinction is often a fine one."}}, {"text": "Clause 15", "label": "PROVISION", "start_char": 9830, "end_char": 9839, "source": "regex", "metadata": {"statute": null}}, {"text": "[1972] 2 SCR 927", "label": "CASE_CITATION", "start_char": 10344, "end_char": 10360, "source": "regex", "metadata": {}}, {"text": "31-1- ~69 of", "label": "DATE", "start_char": 10653, "end_char": 10665, "source": "ner", "metadata": {"in_sentence": "(From the Judgment and Order dated 31-1- ~69 of the Rajasthan High Court in Civil Misc."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 10730, "end_char": 10741, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and Girish Chandra, for the appellant."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 10746, "end_char": 10760, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and Girish Chandra, for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 10782, "end_char": 10793, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. A. Shah and S. K. Dholakia, for respondent No.", "canonical_name": "S. T. Desai"}}, {"text": "G. A. Shah", "label": "LAWYER", "start_char": 10795, "end_char": 10805, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. A. Shah and S. K. Dholakia, for respondent No."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 10810, "end_char": 10824, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. A. Shah and S. K. Dholakia, for respondent No."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 10849, "end_char": 10862, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, S. M. Jain and Indra Mapwana, for respondents 2-3. .", "canonical_name": "L. M. Singhvi"}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 10864, "end_char": 10874, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, S. M. Jain and Indra Mapwana, for respondents 2-3. ."}}, {"text": "Indra Mapwana", "label": "LAWYER", "start_char": 10879, "end_char": 10892, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, S. M. Jain and Indra Mapwana, for respondents 2-3. ."}}, {"text": "Leila Seth", "label": "LAWYER", "start_char": 10918, "end_char": 10928, "source": "ner", "metadata": {"in_sentence": "Leila Seth and G. S. Chatterjee for the Intervener."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 10933, "end_char": 10949, "source": "ner", "metadata": {"in_sentence": "Leila Seth and G. S. Chatterjee for the Intervener."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 11017, "end_char": 11025, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nSARKARIA, J.-Whether on the facts of this case, the contract <lated 15-6-1968 between the Union of India and the Central India\n\nJ\\:1achinery Manufacturing Company Ltd. (Wagon & Structural Divis10n) .Bharatpn_r (heremafter called the Company) for the manufacture and supply ot wagons, was a contract 01 sale or work contract, is the prmcipal quest10n that tails to be determmed in this appeal by certiJicate, filed by the Union of India against a judgment dated January 31, 1969 of the High Court of Rajasthan."}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 11502, "end_char": 11525, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by :\n\nSARKARIA, J.-Whether on the facts of this case, the contract <lated 15-6-1968 between the Union of India and the Central India\n\nJ\\:1achinery Manufacturing Company Ltd. (Wagon & Structural Divis10n) .Bharatpn_r (heremafter called the Company) for the manufacture and supply ot wagons, was a contract 01 sale or work contract, is the prmcipal quest10n that tails to be determmed in this appeal by certiJicate, filed by the Union of India against a judgment dated January 31, 1969 of the High Court of Rajasthan."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 12220, "end_char": 12240, "source": "ner", "metadata": {"in_sentence": "In March 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore ]); vision v. The Commissioner of commercial Taxes, Mysore,(') held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of works contract and therefore sales-tax .was not payable on 'such supplies."}}, {"text": "Hindustan Aeronautics Ltd.", "label": "ORG", "start_char": 12256, "end_char": 12282, "source": "ner", "metadata": {"in_sentence": "In March 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore ]); vision v. The Commissioner of commercial Taxes, Mysore,(') held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of works contract and therefore sales-tax .was not payable on 'such supplies."}}, {"text": "HAL", "label": "ORG", "start_char": 12429, "end_char": 12432, "source": "ner", "metadata": {"in_sentence": "In March 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore ]); vision v. The Commissioner of commercial Taxes, Mysore,(') held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of works contract and therefore sales-tax .was not payable on 'such supplies."}}, {"text": "June 7, 1968", "label": "DATE", "start_char": 12593, "end_char": 12605, "source": "ner", "metadata": {"in_sentence": "In view of this decision, the Railway Board by its Jetter dated June 7, 1968 informed the Company that the money paid by it to the Company which was not deposited with the Sales-tax Department should be refunded because the real nature of the transaction was that of a works contract and not a sale or purchase and therefore the Railway Board was not liable to reimburse the Company for the amount of sales-tax if any, paid by the Company to the State of Rajasthan."}}, {"text": "State of Rajasthan", "label": "GPE", "start_char": 12975, "end_char": 12993, "source": "ner", "metadata": {"in_sentence": "In view of this decision, the Railway Board by its Jetter dated June 7, 1968 informed the Company that the money paid by it to the Company which was not deposited with the Sales-tax Department should be refunded because the real nature of the transaction was that of a works contract and not a sale or purchase and therefore the Railway Board was not liable to reimburse the Company for the amount of sales-tax if any, paid by the Company to the State of Rajasthan."}}, {"text": "Rajasthan", "label": "GPE", "start_char": 13208, "end_char": 13217, "source": "ner", "metadata": {"in_sentence": "While in reply to the Railway Board at Company contended that the contract was for sale of wagons and not a contract for works, it took a contrary position in its representation to the Commissioner of Sales-tax, Rajasthan."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13632, "end_char": 13636, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(a)", "label": "PROVISION", "start_char": 14102, "end_char": 14110, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales of Goods Act", "label": "STATUTE", "start_char": 14114, "end_char": 14132, "source": "regex", "metadata": {}}, {"text": "August 14, 1968", "label": "DATE", "start_char": 14152, "end_char": 14167, "source": "ner", "metadata": {"in_sentence": "By its letter of August 14, 1968, the Railway Board finally informed the Company that, in future it would not reimburse the Company for the sales-tax if paid by it in connection with the supply of wagons."}}, {"text": "[1972] 2 S.C.R. 927", "label": "CASE_CITATION", "start_char": 14345, "end_char": 14364, "source": "regex", "metadata": {}}, {"text": "Article 226", "label": "PROVISION", "start_char": 14463, "end_char": 14474, "source": "regex", "metadata": {"linked_statute_text": "Sales of Goods Act", "statute": "Sales of Goods Act"}}, {"text": "Commercial Taxes Officer Special Circle Jaipur", "label": "PETITIONER", "start_char": 14524, "end_char": 14570, "source": "ner", "metadata": {"in_sentence": "In tlie writ petition, the Commercial Taxes Officer Special Circle Jaipur, the\n\nUnion of India through the Railway Board and the State of Rajasthan were impleaded as Respondents."}}, {"text": "State of Rajasthan", "label": "ORG", "start_char": 14626, "end_char": 14644, "source": "ner", "metadata": {"in_sentence": "In tlie writ petition, the Commercial Taxes Officer Special Circle Jaipur, the\n\nUnion of India through the Railway Board and the State of Rajasthan were impleaded as Respondents."}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 14976, "end_char": 14990, "source": "ner", "metadata": {"in_sentence": "(2) That in the event of a finding that the contract is in reality a contract for sale the respondent Union of India b!l prohibited from claiming refunct from the petitioner of the sum of Rs.", "canonical_name": "UNION OF INDIA"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 15826, "end_char": 15837, "source": "regex", "metadata": {"statute": null}}, {"text": "December 23, 1967", "label": "DATE", "start_char": 17094, "end_char": 17111, "source": "ner", "metadata": {"in_sentence": "67/RS(I)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the Company, the farmer's acceptance of the offer made by the Company in its earlier letters, including the letter, dated 12-12-1967, to manufacture and supply, B. G. Bogie covered wagons BCX Type and M. G. Covered wagon MBC Type."}}, {"text": "June 15, 1968", "label": "DATE", "start_char": 17130, "end_char": 17143, "source": "ner", "metadata": {"in_sentence": "67/RS(I)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the Company, the farmer's acceptance of the offer made by the Company in its earlier letters, including the letter, dated 12-12-1967, to manufacture and supply, B. G. Bogie covered wagons BCX Type and M. G. Covered wagon MBC Type."}}, {"text": "12-12-1967", "label": "DATE", "start_char": 17301, "end_char": 17311, "source": "ner", "metadata": {"in_sentence": "67/RS(I)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the Company, the farmer's acceptance of the offer made by the Company in its earlier letters, including the letter, dated 12-12-1967, to manufacture and supply, B. G. Bogie covered wagons BCX Type and M. G. Covered wagon MBC Type."}}, {"text": "30-6-69", "label": "DATE", "start_char": 17995, "end_char": 18002, "source": "ner", "metadata": {"in_sentence": "Delivery : The delivery of the stock F.O.R. your works siding is required to be completed by 30-6-69."}}, {"text": "Inspecting Authority : Joint Director\n\n(R.I.), E R.D.S.D., Calcutta", "label": "RESPONDENT", "start_char": 18185, "end_char": 18252, "source": "ner", "metadata": {"in_sentence": "Inspecting Authority : Joint Director\n\n(R.I.), E R.D.S.D., Calcutta or his representative shall constitute the Inspecting Authority for the inspection of stock built by you against this order. '"}}, {"text": "New Delhi", "label": "GPE", "start_char": 18440, "end_char": 18449, "source": "ner", "metadata": {"in_sentence": "Accounting and payments: F.A. & C.A.O., Northern Railway, New Delhi will maintain accounts and arrange all payments.\""}}, {"text": "23-12-1967", "label": "DATE", "start_char": 20743, "end_char": 20753, "source": "ner", "metadata": {"in_sentence": "The Special Conditions of Contract contains in Annexure 'A' to he letter dated 23-12-1967, are as under:\n\nSPECTAL CONDTTTONS\n\nl.3 Material Escalations : Adjustments due to variations in the cost of mater'al will be confined to the variations in the prices of steel at Col."}}, {"text": "J.P.C.", "label": "ORG", "start_char": 21017, "end_char": 21023, "source": "ner", "metadata": {"in_sentence": "1 rate through Governmental action for controlled categories and those fixed by J.P.C. for de-controlled categories of steel."}}, {"text": "Calcutta", "label": "GPE", "start_char": 22868, "end_char": 22876, "source": "ner", "metadata": {"in_sentence": "Note : 'On Account' payment wil\\ be permissible on steel procured according to Joint Director (Iron & Steel), Calcutta's planning after taking into consideration any steel offers from the floating stock held by the Railways."}}, {"text": "clause 1", "label": "PROVISION", "start_char": 23864, "end_char": 23872, "source": "regex", "metadata": {"statute": null}}, {"text": "Bharatpur", "label": "GPE", "start_char": 25946, "end_char": 25955, "source": "ner", "metadata": {"in_sentence": "B.G. covered wagons BCX type with Transition type Centre Buffer couplers at both ends and 812 numbers MG covered wagons MBC type (1968-69 R.S.P.) at Bharatpur."}}, {"text": "S. 2", "label": "PROVISION", "start_char": 27566, "end_char": 27570, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan Sales Tax Act, 1954", "label": "STATUTE", "start_char": 27578, "end_char": 27607, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 28014, "end_char": 28023, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Sales Tax Act, 1954", "statute": "the Rajasthan Sales Tax Act, 1954"}}, {"text": "Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 28028, "end_char": 28051, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "De Zuluete", "label": "OTHER_PERSON", "start_char": 28627, "end_char": 28637, "source": "ner", "metadata": {"in_sentence": "III, 24,4, and De Zuluete, The Romaro Law of Sale, pp."}}, {"text": "England", "label": "GPE", "start_char": 28709, "end_char": 28716, "source": "ner", "metadata": {"in_sentence": "Difficulty has also been felt in England and other Common law jurisdictions to the effect of a contract to make a chattel and deliver it whn made."}}, {"text": "Pollock", "label": "JUDGE", "start_char": 29167, "end_char": 29174, "source": "ner", "metadata": {"in_sentence": "Accordino to Pollock & Mulla, \"the test would seem to be whether the thing\n\n' •\n\n' •\n\nto be delivered has any individual existence before delivery as the A sole nronertv of the nart.v who is to deliver it\".", "canonical_name": "Pollock"}}, {"text": "Mulla", "label": "JUDGE", "start_char": 29177, "end_char": 29182, "source": "ner", "metadata": {"in_sentence": "Accordino to Pollock & Mulla, \"the test would seem to be whether the thing\n\n' •\n\n' •\n\nto be delivered has any individual existence before delivery as the A sole nronertv of the nart.v who is to deliver it\".", "canonical_name": "Mulla"}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 32247, "end_char": 32252, "source": "ner", "metadata": {"in_sentence": "Mr. Mehta, learned counsel for the appellant, contended that what clause (1) of Standard Condition 15 appears to convey about\n\nthe transfer of fhe properly in the completed vehicle stands inferentially negated an~ superseded by the terms of the Special Conditions and the lndemmty Bond to which the Standard Conditions are subject."}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 36278, "end_char": 36295, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindustan Aeronautics", "label": "ORG", "start_char": 36978, "end_char": 36999, "source": "ner", "metadata": {"in_sentence": "According to counsel, the terms and conditions of the contract which came up for consideration in M/s. Hindustan Aeronautics were substantially the same, and there it was held that the contract was one for work and not of sale of vehicles."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 37138, "end_char": 37151, "source": "ner", "metadata": {"in_sentence": "On the other hand, Dr. L. M. Singhvi, Learned Advocate-General appearing for the State of Rajasthan, and Shri S. T. Desai, learned counsel appearing for the Company have pointed out that there is nothing in the Spedal Conditions which militates against or is inconsistent with the Standard Condition 15; that the Special Conditions, read as a whole, show beyond all doubt that the raw materials purchased by the Company against 90% advance payment do not become the property of the Railway Board or the Union of India, because under the express terms of the contract, such advance payment is made towards the \"contract price\" of the wagons and not towards the price of the materials purchased by the Company, although to safeguard the interests of the Railway Board some restrictions have been placed with regard to the use and disposal of those materials on the Company who had become aware thereof by purchase for a price.", "canonical_name": "L. M. Singhvi"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 37225, "end_char": 37236, "source": "ner", "metadata": {"in_sentence": "On the other hand, Dr. L. M. Singhvi, Learned Advocate-General appearing for the State of Rajasthan, and Shri S. T. Desai, learned counsel appearing for the Company have pointed out that there is nothing in the Spedal Conditions which militates against or is inconsistent with the Standard Condition 15; that the Special Conditions, read as a whole, show beyond all doubt that the raw materials purchased by the Company against 90% advance payment do not become the property of the Railway Board or the Union of India, because under the express terms of the contract, such advance payment is made towards the \"contract price\" of the wagons and not towards the price of the materials purchased by the Company, although to safeguard the interests of the Railway Board some restrictions have been placed with regard to the use and disposal of those materials on the Company who had become aware thereof by purchase for a price.", "canonical_name": "S. T. Desai"}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 38756, "end_char": 38763, "source": "ner", "metadata": {"in_sentence": "ff\n\nDr. Singhvi has further submitted that the terms of the contract in question are materially different from those which were in question in Hindustan Aeronautics case and in Mis."}}, {"text": "Mis. Variety Body Builders", "label": "ORG", "start_char": 38925, "end_char": 38951, "source": "ner", "metadata": {"in_sentence": "ff\n\nDr. Singhvi has further submitted that the terms of the contract in question are materially different from those which were in question in Hindustan Aeronautics case and in Mis."}}, {"text": "C. P.\n\nGupta", "label": "OTHER_PERSON", "start_char": 39778, "end_char": 39790, "source": "ner", "metadata": {"in_sentence": "There is positive evidence (i.e. unrebutted affidavit of Shri C. P.\n\nGupta, Senior Accounts and Finance Officer of the Company) that in execution of the contract in question, the Company has used such raw material also against which no advance was drawn from the Railway."}}, {"text": "Chalmers", "label": "OTHER_PERSON", "start_char": 46548, "end_char": 46556, "source": "ner", "metadata": {"in_sentence": "This means that the general test suggested by Pollock and Chalmers has been substantially albeit not absolutely satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the Company being the seller and the President/Railway Board being the buyer."}}, {"text": "D Hinduslxm Aeronautics", "label": "ORG", "start_char": 48511, "end_char": 48534, "source": "ner", "metadata": {"in_sentence": "The present case has some special features which did not figure in D Hinduslxm Aeronautics."}}, {"text": "Raiiway", "label": "ORG", "start_char": 49810, "end_char": 49817, "source": "ner", "metadata": {"in_sentence": "materials nsed in the construction of coaches was supplied by the Raiiway."}}, {"text": "State_ of Orissa", "label": "ORG", "start_char": 50604, "end_char": 50620, "source": "ner", "metadata": {"in_sentence": "The case before us is more in line with the decision of this Court in Patl1flik and Company v. State of Orissa (supra) .. The appellants therein had en.tered into an agreement with the State_ of Orissa for the construction of bus-bodies on the chassis ."}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 51778, "end_char": 51796, "source": "ner", "metadata": {"in_sentence": "The question before the Constitution Bench of this Court was whether on these facts, the contract was one for work or a contract for sale of goods."}}, {"text": "Orissa", "label": "GPE", "start_char": 52092, "end_char": 52098, "source": "ner", "metadata": {"in_sentence": "This Court held (by majority) that the contract as a whole was a contract for 'sale of goods and therefore the appellants were liable to sales-tax on the amounts received from the State of Orissa for the construction of the bus bodies."}}]}
{"document_id": "1977_3_43_59_EN", "year": 1977, "text": "VICE-CHANCELLOR, JAMMU UNIVERSITY & ANR. v.\n\nDUSHIANT KUMAR RAMPAL\n\nFebruary 23, 1977\n\n[P. N. BHAGWAT!, A. C. GUPTA AND P. N. SHINGHAL, JJ; J B\n\nI & K Universities Act, 1969-SS. 13(4), 51, 52 and statlllc 24(ii)-Scope of--Vice-Cliancellor-lf co111vete11t to suspend a teacher-Suspension-Effect of. ·\n\nThe Jammu and Kashmir University, \\vhich was a university constiluted under the Jammu and Kashmir University Act, 1965, was bifurcated into two universities-one for Jammu area and the other fur K;.u; hmir area-by an act C called the Jammu and Kashmir Universities Act, 1969. Statute 2 made under the 1965-Act required every teacher to sign the prescribed agreement of service with the University. Clause (6) of the agree1nent stipulated that in all mat ters the teacher would s.bide by the statutes and regulations in force in the university from time to time. The proviso to this clause provided that no change in the statutes and regulations in this regard shall be deemed to have adversely affected the teacher.\n\nSection 51 of the 1969-Act provides for continuing in force the statutes and n.:gulations inade under the 1965-Act; buts. 48(2) en1powered a special officer to propose modifications necessary to bring the statutes made under the 1965- Act in conformit:Y with the provisions of the 1969-Act and if such modifications \\Vere approved by the Chancellor they were deemed to have been made by the competent authority under the 1969-Act. Section 52(1) of the 1969-Act\n\nprovides that a11 employees of the university employed under the 1965-Act shall continue in service on the same terms and conditions as regulated their service before the commencement of the 1969-Act. Sub-section (2)_ empowers the Chancellor to allocate employees of the univeNity (other than those serving on contract) between the two new universities and the allocation so made was deen1ed to be an appointment to the post under the 1969-Act. The proviso to this subsection provides that in making such allocations the conditions of service of en1ployment of such employees shall not be varied to their disadvantage.\n\nSub-section ( 4) provides that all persons who \\Vere employed under the former university on contract shall cease to hold such posts after 60 days from the commencement of the 1969-Act and all such contracts with the former university shall stand terminated on the expiry of 60 days.\n\nSection 13(4) of the 1969 Act empO\\vers the Vice-Cl1ancellor to take such action as he deems necessary in any emergency which calls for immediate action.\n\nSection 13(6) provides that the Vice-Chancellor sha.U be responsible for the discipline of the University. Section 14(3) of the 1969-Act contained an identical provision as that contained ins .. 13(4) of the 1965-Act.\n\nTo bring the statutes under the 1965-Act in conformity with the pro\\isions of the 1969-Act modifications proposed by the special officer under s. 48(2) of the 1969-Act were approved by the Chancellor by his order dated Decem~ ber 24, 1969. This order substituted Chapter lV in the statutes by a new chapter.\n\nActing under s. 52(4), the Chancellor made an order on December 24, 1969 directing that certain teachers shaH continue on the respective posts in the new Universities on the terms and conditions embodied in Schedule 1( to the order. Clause 9(ii) of the Schedule empo\\vercd the Vice-Chancellor to\n\nuspend a teacher on grounds. among others of misconduct.\n\n111c respondent, a teacher appointed under the 1965-Act, was transferred to the Jammu area by the Chancellor's order dated December 24, 1969. In exercise of the power under cl. 9(ii) of Schedule II of the Chancellor's order\n\nand s. 13(4) of the 1969-Act, the Vice-Chancellor, by an order dated May 21, 1970, suspended the respondent from service. By another order dated June 6, 1970 the respondeni was allowed a subsistence allowance amounting to half his pay and half D.A. which was later raised to 75% of his pay and allowances.\n\nThe respondent's writ petition under Art. 226 of the Constitution challenging the suspension order of May 21, 1970, as well as the order dated June 6, 1970 was dismissed by a single Judge of the High Court. On appeal the Division Bench struck down the order of suspension as vioiative of s. 52(1) of the 1969-Act.\n\nIn appeal it was contended by the respondent that ( 1) since his case was governed by s. 52 ( 1) the order of December 24, 1959 made under s. 52 ( 4) was invalid because the terms and conditions set out in Schedule II to the order altered his conditions of service; (2) statute 24(ii) was invalid because it was not within the terms of s. 48 (2) and the statute was not necessary for bringing the statutes in conformity with the provisions of the 1969-Act; (3) the po\\ver to order interim suspension was a quasi-judicial power and it would not be comprehended within the language of s. 13(4) and (4) s. 52(1) entitled him to continue in service on the same terms and conditions as before and under s. 52(2) his conditions of service could not be varied to his disadvantage; there_fore neither statute 24(ii) nor s. '13(4) could confer power on the Vice- Chancellor to suspend him which power the Vice-Chance11or did not have under the earlier Act.\n\nAllowing the appeal,\n\nHELD : The Vice-Chancellor had the power to make the order of suspension and he was within his authority in dping so. [53C]\n\n1. By reason of statute 2 read with cl. (6) of the form of agreement the respondent was bound by any changes made in the statutes from time to time and no change made in the statutes was to be regarded as having adversely affected him. Statutes made under the 1965-Act continued to be applicable by reason of s. 51. To bring the statutes in confirm:ity with the provisions of the 1969-Act, modifications proposed by the special officer were approved by the Chancellor by his order dated December 24, 1969 and by reason of s. 48(2) they were deemed to have been made by the competent authority under the 1969-Act. This order substituted Chapter IV in the Statutes by a new Chapter and statute 24(ii) made the same provision as cl. 9(ii) of Schedule IT to the order made under s. 52(4). If statute 24(ii) were a valid provision, the Vice-Chancellor would have power to suspend a teacher and the order of suspension against the respondent would be within the authority of the Vice-\n\nChancellor. [53D-El Statute 24(ii) is a statute validly approved by the Chancellor under s. 48(2).\n\n[54HJ\n\n2(a) Section 13(6) has entrusted the Vice-Chancellor with the task of maintaining discipline in the university and the entn1stment of this task carried with it, by necessary implication, the power to take whatever action was neces~ sary for maintaining the discipline. Since s. 13(6) was a new provision. it was necessary to make statutes for enabling the Vice-ChanceJlor to discharge the responsibility of maintaining the discipline and for that purpose, vesting power in him to suspend a teacher pending departmental enCjuiry against him. It was with this object of bringing the statutes in conformity with s. 13(6) that statute 24(ii) was added by way of modification in the statutes by the order of December 24, 1969.\n\nMoreover, there is nothing in the 1969-Act which militates against vesting power in the Vice-Chancellor to order interim suspension of a teacher. The ChancellOr's view that statute 24(ii) was necessary to bring\n\ni~ in conformity withs. 13(6) cannot be said to be erroneous. [54F-G]\n\n(b) If statute 24(ii) is valid, the respondent would be bound by it and in that event the _order of suspension made by the Vice~Chancellor would be H within the power conferred on him by that statute. [55B]\n\n( c) Though the order of suspension did not recite statute 24 (ii) it is wellsettled that when an authority makes an order which is otherwise within its competence, it cannot fail merely because it purports to be made under a wrong\n\nVICE-CHANCELLOR V. DUSHIANT KUMAR 45\n\nprov1s1on of law, if it can be shown to be within its power under any other provision; a wrong label cannot vitiate an order which is otherwise within the A power of the authority to make it. [55B-C]\n\nP. Balakotaiah v. Union of India, [1958] S.C.R. 1052 followed.\n\n3 (a) It is not correct to say that an order of interim suspensi9n was quasijudicial order and in any event the language of s. 13(4) is suffictently w1e and comprehensive to take within its scope and ambit every kind of action cons1de!ed. necessary by the Vice-~Chaincellor in an emergency. The order of suspension\n\nmade by the Vice-Chancellor was plainly an order which he had the power to B make under s. 13(4). [55F]\n\n(b) Section 13(4) does not talk specifically of an order of interim suspen sion of a teacher but the width and amplitude of the language of the provision would clearly include action by way of interim suspension of a teacher, W!ien there is in the opinion of the Vice-Chancellor, an en1ergency calling for 1m ...\n\nmediate action. [55E]\n\n( c) Tue respondent's contention that there was no emergency which called C for immediate action on the part of the Vice-Chance11or and, therefore, the order of suspension could not be justified, cannot be entertained by this Court\n\nbecause no such averment had been made in the writ petition. [SSH]\n\n4(a) The respondent could not complain of any infraction of the provisions of s. 52(1). Since statute 24(ii) was a statute validly made the Vice-Chancel tor was entitled to make the order of suspension. The Vice.Chancellor could also avail of s. 13(4) for sustaining the order of suspension since it conferred the same power on him as s. 13(4) of the 1965-i\\ct and exercise of the power 8 conferred by it as aga-inst the respondent did not involve any violation of the provisions of s. 52(1). [57D-EJ\n\n(b) Section 52 ( 1) continued the service of a teacher on the same tern1s and conditions as regulated his service before the co1nmencernent of the 1969- Act and that was subject to the provisions of s. 52(2). But this subjection to the provisions of sub s. (2) did not imoort the requirement set out in the proviso that the conditions of service of a teacher shall not be varied to his disadvantage.\n\nThe words \"subject to the provisions of sub-section (2)\" in s. 52(1) were intended merely to clarifv that a teacher shall continue in service on the sa1ne terms and conditions but subject to any al1ocation which may be made bv the Chancellor under s. 52(2). Nothing in sub-s.\n\n(1) should be construed as in anv way derogating from the uower of the Chancellor to make an aJlocation of the teache.r under s. 52(2). The proviso imposed a 1in1itation on the power of the Chancellor to make an allocation by providing that in making: such allocation the conditions of service of the employee hall riot he varied to his disadvantage and it could not be construed as a substantive provision adding a requirement in subs.(1) that even though the terms and conditions of service may nermit alteration to the disadvantage of an employee, such alteration shall be inhibited. [56H; 57A]\n\n( c) Even if the respondent was entitled to continue in service on the same terms and conditions as before by reason of s. 52(1) these very terms and conditions provided that he would be bound by any changes which might be made in the statutes from time to time. Jf, therefore, any changes were made in the terms and conditions of service of the respondent by statutes validity made under the 1969-Act the respondent could not complain of any infraction of the provisions of s. 52(1 ). [57C-D]\n\n5(a) The o_rder of suspension susoendcd the contract between the respondent and the university and neither the respondent was bound to perform bis duties under the contract nor was the university bound to pay any salary to him. The respondent was entitled to receive only such subsistence aUownnces as nlight _he navable under the rules rind regulations governing his terms and conditions of service. [570]\n\n(b) Where there is power in the employer either by an express term in the contract or by the rules governing the terms and conditions of service to\n\nsi.1sPend an employee, the order of suspension has the cfft:.ct ot ten1pornrity\n\nsuspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay. ln such a case the cn1ployee would not be entitled to receive any payment at all from the employer unless the contr:1ct of en1pJoyment or lhe\n\nruls governing the terms and conditions of service provide for payment of s-ome subsistence allowance. [58H]\n\nJn the instant case the ViceChanccllor had the po\\ver to suspend the respondent under statute 24(ii) and the respondent could not claim payment of\n\nhi~ salary during the period of suspension.\n\nV. P. Gilulroniya v. State of Madhya Pradesh, [1970] 3 SCR 448 followed.\n\nC1vn. APPELLATE JURISDICTION : Civil Appeal No. 1739 of 1973.\n\nAppeal by Special Leave from the Judgment and Order dated 22.10.1973 of the Jammu and Kashmir High Court in Letters Patent\n\nAppeal No. 9 /72)\n\nF. S. Nariman, 0. C. Mathur, P. N. Tiwari and D. N. Mishra, for the appellants.\n\nDushia11t Kumar Rampa! respondent. ,(in person)\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J., We pronounced our order on this appeal on 17th December, 1976 and we now proceed to give our reasons. We may point out that the respondent was not represented by a lawyer and he argued ase in person and though he i~ a lay man, not well versed in the science of law and in the art and skill of advocacy, we must admit that he argued his case with conspicuous ability.\n\nPrior to 5th September, 1969 there was only one University for the entire territory of the State of Jammu & Kashmir, namely, the University of Jammu & Kashmir.\n\nIt was constituted under the Jammu & Kashmir University Act, 1965 (hereinafter referred to as the Act of 1965) and, as provided in section 20, its central authorities included the Senate and the Central Council.\n\nThe Cenlral Council was the executive body of the University and it had the power inter a/ia to appoint teachers and to define their duties.\n\nThe respondent was appointed as a lecturer in English by the Central Council on 25th April, 1966 and after his period of probation was over he was confirmed as lecturer with effect from 29th April, 1967.\n\nThe conditions of service of the respondent, like those of other confirmed teachers, were regulated by the Statutes made by the Senate from time to time under the provisions of Act of 1965.\n\nStatute 2 provided that every salaried teache.r of the University shall have to execute a written contract with the University and the conditions of service of teachers appointed by the University shall be those embodied in the agreement of service annexed to the Statutes and every teacher shall\n\nxecute such agreement before he enters upon his duties or as soon\n\nas possible thereafter. It appears that though Statute 2 required an agreement of service to be executed by a teacher, no such agreement of service was execntcd by the respondent on his appointment as\n\nVICE-CHANCELLOR v. DUSTllANT KUMAR (Bhagwati, !.) 47\n\nlecturer.\n\nBut it was common ground between the parties that !he conditions of service of the respondent were governed by the provision set out in the form of agreement of service annexed to the Statutes. Clause (6) of this agreement-and this clause admittedly governed the respondent-stipulated that in all matters, the teacher \\VOuld \"abide by the Statutes and Regulations from time to time in force in the University, and in particular, by those determining his/ B bet grade, increment, conditions of service, rules of superannuation and provident fund rules, provided that no change in the Statutes and Regulations in this regard shall be deemed to have adversely affected the teacher.\" The respondent was thus clearly bound by any changes which might be made in the Statutes from time to time and no change made in the Statutes was to be regarded as having adversely affected the respondent and he could not complain against it. The case of C the respondent was that he saNsfactorily carried on his duties as lecturer and earned his increments from year to year.\n\nOn 5th September, 1969 the Governor of Jammu & Kashmir promulgated Ordinance No. 10 of 1969 establishing in place of the University of Jammu & Kashmir, two separate universities, namely, the University of Kashmir for the Kashmir division and the University D of Jammu for the Jam1uu division of the State.\n\nThis Ordinance was replaced by the Jammu & Kashmir University Act, 1969 (hereinafter referred to as the Act of 1969) which came into force on 30th October, 1969. The Act of 1969 made a slight departure from the earlier Act 'in the constitution of the various authorities of each University.\n\nSection 20 of the Act of 1969 provided that the authorities of each university shall include the University Council and the Syndi- E catc. The University Council was constituted supreme authority of the university while the Syndicate was entrusted with the chief executive authority. Whereas under the earlier Act, the power to appoint all teachers of the University was entrusted to the. Central Council, there was bifurcation of this power between the University Council and the Syndicate under the Act of 1969. The University Council F was given the power to appoint teachers of the status of a reader and above while the power to appoint teachers below the status of a reader was entrusted to the Syndicate. The Syndicate was thus the authority under the Act of 1969 vested with the power to appoint and that powct would also carry with it the power to dismiss teachers below. the status of a reader.\n\nSince the Universi1y of Jammu & Kashmir came to an end on the repeal of the Act of 1965 a11d two G new universities, one of Kashnlir and the other of Jammu, were established, some provision had to be made in the Act of 1969 for continuance of the Statutes and Regulations so that there might be no\n\nhitns ?~ break cusing dislocation in the functioning of the two new urnvers1t•es.\n\nSection 51 of the Act of 1969. therefore. provided tliat\n\n~11 Sta'.utes and Regulations made under the Act of 1965 and in force immediately before the commencement of the Act of 1969 shall. so far as may be consistent with the provisions of the latter Act, continue to be in force in each University and section 48, sub-sec. (2) gave R\n\npowr to the special officer to \"examine the Statutes and Regulations contmned under section 51 of this Act and prnposc such modificnlions, alterations and additions therein as may be necessary to bring such Statutes and Regulations in conformity with the provisions of this Act\" and provided that the modifications, alterations and additions proposed by the Speaial officer shall, if approved by the Vice- Chancellor, be deemed to have been made by the competent authority under the Act of 1969 and shall continue in force until altered or superseded by the authority constituted under the Act of 1969.\n\nThere was also the problem of ensuring continuance of service of the existing employees of the University of Jammu & Kashmir and their allocation between the two succeeding univerties and this problem was solved by the enactment of section 52 in the Act of 1969. That section, in so far as material, provided as follows :\n\n\"52. Continuance of service of the existing employees and their allocation-Notwithstanding anything contained in this Act or any Statute or Regulation made thereunder or in any other law for the time being in force.\n\n( 1) all employees of the University of Jammu and Kashmir constituted under the Jammu and Kashmir University Act, 1965 (other than those serving on contract or on deputation in the University or those serving in the Publication Bureau of the University) who immediately before the commencement of this Act, were holding or discharging the duties of any post of office in connection with the affairs of the said University shall, subject to the provisions of sub-section (2), continue in service on the same terms and conditions as regulated their service before such commencement ;\n\n(2) the Chancellor may in consultation with the pro-\n\nChancellor by order allocate the employees of the University of Jammu & Kashmir (other than those serving on contract or deputation in the University or those serving in the Publication Bureau of the Unliversity) between the University of Kashmir and the University of Jammu constituted under this Act in such manner as he may consider necessary and every such allocation shall be deemed to be an appointment, transfer or promotion as the case may be, to the post or office by the competent authority under this Act : Provided that in making such allocations the conditions of service of employment of such employees shall not be varied to their disadvantage;\n\n(3) x x x x x\n\n( 4) all persons wi)o immediately . before te comence\n\nment of this Act were holdmg or d1schar!png the duties of any post or office in connection with. the affairs of the University of Jam mu and Kashmir, on\n\nVICE-CHANCELLOR v. DUSllIANT KUMAR (Bhagwati, J.)\n\ncontract basis or by virtue of their deputation to such posts or offices from other services in the State. unless otherwise ordered by the Chancellor after consulting the Pro-Chancellor, shall cease to hold such posts or to discharge such duties after 60 days from the commencement of this Act and all such contracts with or deputations to the University of Jammu & Kashmir shall stand terminated with effect from the expiry of the said period of 60 days.\"\n\nSince most of the teachers had entered into an agreement of service with the Uruversity of Jammu & Kashmir as provided in Statute 2 and the rest were also treated as having entered into such agreement of service by reason of the compulsive force of Statute 2 though in fact such agreement of service had not been executed by them, perhaps due to inadvertence, the Chancellor took the view that all of them held their posts on contract basis and hence, proceeding on the assumption that sub-sec. ( 4) of section 52 was attracted in their case, he made an order dated 24th December, 1969 directing that the 'appointments of the teachers set out in Schedule (1), which also included the respondent, shall continue on the respective posts mentioned in that schedule on the terms and conditions embodied in Schedule IJI with effect from 9th January, 1970.\n\nSchedule II contained the terms and conditions on which teachers mentioned in Schedule I were continued in service of the University of Jammu and clause 9(ii) of that Schedule read as follows :\n\n\"The Vice-Chancellor may when he deems it necessary suspend the teacher on grounds of misconduct, insubordination, inefficiency or unsatisfactory performance of duty, when he suspends the teacher he shall report it to the university Council/Syndicate at the next meeting.\"_\n\nThe respondent and some other teachers were of the vw that the terms and conditions set out in Schedule II effected a change in their conditions of service to their prejudice and hence they made a representation to the Chancellor and other authorities of the University of Jammu. It does not appear from the record as to what happened to this representation but presumably it was rejected.\n\nNow we come to the events which formed the mmediate cause for the predicament of the respondent. It appears that certain complaints were received by the Vice-Chancellor against the conduct of the respondent and 'the Vice-Chancellor took the view that these 7omplaints were of a serious character and needed to be enquired tnto and pending such enquiry, it was not desirable that the respondent should be allowed to continue to work as a lecturer. The Vicehancellor accordingly passed an order dated 21st May, 1970 directmg that the respondent be placed under suspension with immediate\n\nffect. !his order was purported to be passed by the Vice-Chancellor\n\ntn exercise of the powers vested in him under clause 9(ii) of Schedule II of the Order dated 24th December, 1969 and section 13 (4) of the\n\nAct of 1969. It may be convenient at this stage, before we proceed\n\n50 SUPREME CdURT REPORTS\n\nU977J 3 SC.R.\n\nfurther, to refer to section 13 ( 4), since considerable argument before ns tuf!1ed upon it Section 13 deals. with the powers and duties of the Vice-Chancellor and sub-sec!Ion ( 4) of that section reads as follows\n\n\"(4) '.he Vice-Chancellor may take action as he deems !lecessary m ny emergency which, in bis opinion, calls for 1mmed1ate actJon.\n\nHe shall in such a case and as soon as may be thereafter; report .his ction to the officer, authority or other body of the UruverSity concerned who or which would ordinarily have dealt with the matter.\"\n\nSub-section (6) of section l3 is also material and ; tis in the follow.ing terms :\n\n\"( 6) The Vicc-'Chancellor shall give effect to the orders of the University Council and the Syndicate of the University concerned regard;'ng the appointment, dismissal and suspension of persons in the employment of the University and shall exercise general control over the affairs of the University. He shall be responsible for the discipline of the University in accordance w; th this Act, Statutes and Regulations.\"\n\nThe Vice~Chanccllor, immed;'ately after passing the Order of suspension, placed it before the Syndicate at its next meeting held on 24th June, 1970. The respondent had also in the meantime subntltted his representation against the Order of suspension and this representation also came up before this meeting of the Syndicate.\n\nThe Syndi'Catc considered the Order of suspension made by the Vicc- Chancellor as also the representation submitted by the respondent and passed a resolution rejecting the representation of the respondent recording the action taken by the Vice-Chancellor and directing that articles of charge be framed and communicated to the respondent and he may be requied to submit his explanation in writing and a committee consisting of the Vice-Oancellor and three other persons be appointed to investigate the matter and submit its finding to the Syndicate.\n\nThe Registrar of the University thereafter passed an order dated 6th June, 1970 declaring that, during the period of suspension, the respondent would not be ent; tJed to get full salary but he would be paid only subsistence allowance at an amount equal to half pay and half dearness allowance in accordance with the usual practice followed by the University. It may be pointed out that with effect from 21st May, 1971, that is after the expiry of a period of one year from the date of suspension, the subsistence allowance payable to the respondent was raised to 75% of the pay and dearness allowance.\n\nA chargesheet containing twelve charnes was then gi'Ven to the respondent and he was required to submit his explanation.\n\nThe respondent gave his explanation to the charges levelled against him and while doing so,. he also ob.iected to the constitution of the Committee which was appointed to enquire into the charges. In consequence of his objection, the constitution of the committee was changed and the Vice-'Chuncellor was kept out of it.\n\nThe enquiry by the Committee\n\n' ,\n\nVICE'CJ{ANCELLOR v. DUSIUAN'f KUMAR (Bliagwati, J.) 51\n\ncommenced on :J2th March, 197 l and it went on for some time, but before it could. be completed, the respondent filed a writ petitil::m in the High. Court of J ammu & Kashmir challenging t11e validity of the\n\nOrder dated 24th December, 1969, the Order dated 6th June, 1970 in regard .to payment of subsistence allowance and also impugning the legality of the enquiry proceedings. There were varil)us grounds taken by the respondent in the writ peMion but it is pot necessary to refer to them in detail having regard to the course which the appeal has taken before us.\n\nThe writ petition was heard by a Single Judge of the High Court and by a judgment dated 28th April, 1972 the learned Judge dismissed the writ petition.\n\nThe respondent there upon preferred a Letters Patent appeal in the Hi'gh Court. During the pendency of the appeal, the departmental enquiry which was started against the respondent was completed and the committee made a report absolving the respondent of all the charges except charges Nos. 1 and 12 of which the respondent was found guilty.\n\nThe syndicate, after considering the report of the committee, resolved to issue a notice to the respondent to show cause why \"the punishment for termination of his servi1:es from the University be not imposed on\n\nhim\" on the ground of charges Nos. l and 12. Pursuant to this resolution, a show cause notice was issued to the respondent which led to the filing of a petition by the respondent in the Letters Patent appeal for taking notice of these subsequent events. The respondent in this petiti'on challenged the report of the committee as also the resolution of the Syndicate on various grounds which are no longer material. The University filed its reply to the petition denying the allegations made against the committee and disputing the grounds on which the validity of the enquiry was challenged on behalf of the respmident. The Letters Patent appeal thereafter came to be heard by a Division Bench of the High Court and the Division Bench, by a judgment dated 22nd October, 1973, took the view that the Order dated 24th December, 1969 was violative of secti'on 52, sub-section\n\n(1) of the Act of 1969 and the Order of suspension dated 21st May, 1970 was \"defective for want of jurisdiction and other legal infirmities\" and these two orders were accordingly quashed and set aside by the Division Bench.\n\nThe Divist\\)n Bench also held that \"as a necessary corollary to our finding& on the two impugned orders and also in consequence of our observations on the legal aspect of the show cause notice issued to the appellant to terminate his service, the same also deserves to be quashed.\" The Division Bench accordingly allowed the appeal, set asi<de the judgment of the learned 1Single Judge and issued a writ of certiorari quashing the Order dated 24th December. 1969' and the Order of suspension dated 21st May, 1970 as al.so the show cause notice issued to the respondent and directed the reinstatement of the respondent.\n\nThe University and the ViCe-Chancellor thereupon preferred the present apneal with special leave obtained from this Court. ·\n\nThe appeal was heard by this Court for some time on the points which were decided against the University and the Vice~Chancellor and certain further points were also raised by the respondent in support of the order made by the Division Bench of .the High Court.\n\nBut it is not necessary to examine the arguments advanced on behalf of the parties on these various points, since before the hearing of the appeal could be concluded, a partial settlement was arrived at between the University and the Vice-Chancellor on the one hand and th<~ respondent on the other.\n\nIt was agreed between the parties as a result of this settlement that the University shonld drop the disciplinary proceedings/action against the respondent and that the respon- dent should be allowed to join service within fourteen days from the date of the order to be made by this Court and upon his joining, his pay should be fixed as lecturer taking in view the increments which he wonld have earned but for the suspension. It was also declared in the settlement that there shall be no stigma whatsoever attached to the respondent and so far as the personal allegations made by him against the University authorities were concerned, they would stand withdrawn by him.\n\nThe settlement also provided that the respondent should be given benefit of continuity of service and if the vali- dity of the Order of suspension was ultimately upheld by this Court and it was held that the respondent was not legally entitled to any thing more than the subsistence allowance actually paid to him, the matter would be .left to the Chancellor to determine in his sole and absolute discretion as to whether any additional amount at all, and if so, what amount, may be paid to the respondent for the period of suspension ex-gratia without any liability on the part of the University.\n\nThe Chancellor was authorised to determine this matter in consulta- tion with the Pro-Chancellor or in such other manner as he thought proper and he could do so, even without giving any opportunity to either party to make his or their submissions in the matter. Having regard to this settlement, the only two questions which remained to be resolved by this Court were, first, whether the Order of suspension was valid, and secondly, if the Order of suspension was valid, whether the respondent was entitled to anything more than the subsistence allowance actually paid to him. These two questions we shall now proceed to decide.\n\nThe first question is whether the Order of suspension made by the Vice-Chancellor was ai valid Order or it suffered from any lega I infirmities. The respondent assailed the validity of the order of suspension on the ground that it was made in purported exercise of the power conferred under clause (9) (ii) of Schedule II to the Order dated 24th December, 1969, but this Order was itself void and inoperative as it was in conflict with the provisions of section 52, subsection (I) of the Act of 1969. The argument of the respondent was that immediately before the commencement of the Act of 1969. he did not hold or discharge the duties of any post or office in connection with the affairs of the University on contract basis, nor was he on deputation from any other service of the State of Jammu & Kashmir and he was, therefore, not covered by section 52, sub-section ( 4) under which the Order dated 24th December, 1969 was purported to be made, but his case was governed by section 52, subsection (I) which ensured him continuity in service on the same terms and conditions as before and hence the order da led 24th December, 1969 altering his terms and conditions as set out in\n\nVICE-CHANCELLOR v. DUSHIANT KUMAR (Bhagwati, J.) 53\n\nSchedule ll was invalid. 'This argument would have required us to A cons1aer wnemer tne employment or me res1mndent uncter the University of Jammu & Kasnmrr lffiffiect1ately pnor to the commencement of tne Act or 1~09 W'IS on contract basis, because tne prov1s1on in regard to cteputallon bemg inapplicable, 1t is only 1f tne emp1oyment of tne responctent was on contract basis tnat the Orcter ctatect .t4th December, 1969 coulct be justmect uncter secuon 52, sub-section (4).\n\nBut we snail, tor tne purpose of the present appeal, proceect on me B assumption tnat tne case of the respondent was governect by subsection (1) and not sub-section ( 4) of sectl\\ln 52 and the order dated 24tn Uecember, 19W Ill so tar as it deternuned any ct!I!erent terms and conditions for the respondent was not valid, since we find that, in the view wn1cn is being taken by us, 1t 1s not necessary to examme tlus question. Undoubtedly, the e!Iect of this assumption would be to put clause (9) (ii) of :X:hedule 11 to the Order elated 24tn December, c 19()9 out of the way of the respondent and it wou4f not be avauable to the Umversity and the Vice-Chancellor in support of the Order of suspension. l:lut even so, we think the Vice-Chancellor had power to make the Order of suspension and he was within his authority in doing so.\n\nWe have already pointed out that by reason of Statute 2 read with clause ( 6) of the Form of Agreement annexed to the Statutes made under the Act of 1965, the respondent was bound by any\n\nchanges wmch might be made in me Statutes from time to time and no change made in the Statutes was to be regarded as havmg ac\\versely a!Iected the respondent.\n\nNow, the Statutes made under the Act of 1965 continued to be applicable to the University by reason of section 51, but secuon 48, sub-section (2) provided for making of modifications, alterations and additions in the Statutes with a view to bringing them in conformity with the provisions of the Act of 1969.\n\nThe Special Officer accordingly proposed certain modifications in the Statutes which were found necessary to bring the Statutes in conformity with the provisions of the Act of 1969 and. these modifications were approved by the Chancellor by an Order dated 24th December, 1969 and by reason of section 48, sub-section\n\n(2) they were deemed to have been made by the competent authority under the Act of 1969. This Order dated 24th December, 1969 substituted Chapter IV in the Statutes by a new Chapter and Statute 24(ii) in the newly substituted Chapter made the same provision as clause (9) (ii) of Schedule II to the Order made under sub-section\n\n(4) of section 52.\n\nNow, obviously, If Statute 24(ii) were a valid provision, the Vice-Chancellor would have power to suspend a teacher \"on the ground of misconduct, insubordinatitm, inefficiency or unsatiactory performance of duty\" and the Order of suspension made agamst the respondent would be within the au'.hority of the Vice- Chancellor. The respondent, therefore, assailed the validity of Statute 24(ii) on the ground that it was not necesS'!IY for the pur\" pose of bringing the Statutes i'!l conformity with the provisions of the Act of 1969 and was hence not within the terms of section 48 sub-\n\n~tion (2). Turning to the language of section 48, subsectio; (2), 1t 1s clear that the power conferred on the Vice-Chancellor under\n\nthat provision to approve modifications in the Statutes is a power whichi can be exercised only where. the modifications arn necessary for bringing the Statutes in. conformity with the provisions of the Act of 1969: and if it is found that any modifications purported to be approved by the Chancellor are plainly unnecessary from the point of view of bringing the Statutes in conformty with the provisions of the Act of 1969\", it would be outside the power of the Chancellor to approve them.\n\nThe Chancellor cannot say that it is for him to decide in his subjective opinion whether the modifications proposed to be made are necessary for bringi•ng the Statutes in conformity with the Act of 1969 and that his subjective opinion is immune from scrutiny in a court of law.\n\nOf course, if the view taken by the Chancellor is a reasonably possible view, the Court would not interfere with the Order made by him approving the modtlications, but if what has been done by him is plainly and egregrously wrong, the Court would certainly interfere on the ground that the order made by the Chancellor is beyond the power conferred on him by section 48, sub-section(2J.\n\nThe question which, therefore, arises for consideration is whether Statute 24(ii•) could reasonably be said to be necessary for bringing the Statutes in conformity with the provisions of the Act of 1969.\n\nWe may first refer to section 13, sub-section ( 4) of the Act of 1969' which confers power on the Vice-Chancellor to take such action as he deems necessary in any emergency which in his opinion calls for immedtate action.\n\nA similar provision was also made in section 13, sub-section (4) of the Act of 1965.\n\nB.ut the Act of 1%9 introduced a new provision in sub, section ( 6) of section 13 to the effect that the Vice-Chancellor shall be responsible for the discipline of the University in a.ccordance with the Act, Statutes and Regulations.\n\nThe Vice-Chancellor was, thus, entrusted under sub-section ( 6) of section 13 with the task of maintaining discipline in the University and the entrustmcnt of this task carried with it by necessary implication power to take whatever acti'On was necessary for the purpose of maintaining discipline, provided of course such action was in accordance with the Act of 1969 and the Statutes and Regulations.\n\nSince sub-section ( 6) of section 13 was a new provision enacted in the Act of 1969, it was necessary to make Statutes for the purpose of enabling the Vice~Chancellor to effectively discharge the responsibility of maintaining the discipline of the Unversity and for that purpose, vesting power in the Vice-Chancellor to suspend a teacher pending departmental enquiry against him.\n\nIt was with this object of bringing the Statutes in confirmity with sub-section ( 6) of secti<m 13 that Statute .24(i~) was added by way of modification in the Statutes by the Order dated 24th Deceniber, 1969.\n\nWe mav concede straightaway that if there was anything in the Act of 1969 which was inconsistent with the conferment of power of interim suspension on the Vice-Chancellor, Statute 24(ii) could not be approved by the Chancellor, because no Statute can be made is i•n conflict with any provision of the Act.\n\nBut we do not find anything in the Act of 1969 which militates against vesting of power in the Viee- Chancellor to order interim suspension of a teacher and hence Statute 24 (ii) must he held to be a Statute validly approved by the Chancellor\n\n... •.\n\nI '-\n\nVICE-CHANCELLOR v. DUSHIANT KUMAR (Bhagwati, J.) 5 5\n\nwithin his authority under section 48, sub-section (2). The view taken by the Chancellor that Statute 24(ii) was necessary for bringing the Statutes in conformity with sub-section ( 6) of Section 13 cannot in any event be saitl to be so plainly erroneous that the Court would strike down Statute 24(ii) as invalid.\n\nNow, if Statute 24(ii) is valid, there can be no doubt that the respondent would be bound by it and in that event, the order of suspen.sion made by the Vice- Chancellor would be clearly within the power conferred on him by that Statute. It i'S true that the Order of suspension did not recite Statute 24(ii) as the source of power under which it was made, but it is now well settled, as a result of several decisions of this Court, that when an authority makes an order which is otherwise within ifs competence, it cannot faii. merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision : a wrong label cannot vitiate an order which is otherwise within the power of the authority to make, Vide Hukamchand Mills Ltd. v. State of Madhya Pradesh(') and P. Balalwtaiah v. Union of India. (2) We may also point out that the Order of suspension wa~, in any event, justified by the provision in section 13, sub-section ( 4). The Order of suspension, in fact, recited that it was made in exercise of the power conferred under section 13, sub-stion (4). Sub-section ( 4) of section 13 is general in terms and provides that the Vice- Chanccllor shall be entitled to take such action as he deems necessary in any emergency which in his opinion calls for immediate action.\n\nJt does not talk specifically of an order uf interim suspension of a teacher but the width and amplitude of the language of the provision would clearly include action by way of interim suspension of a teacher, when there is in the opinion of the Vice•Chancellor an emergency calling for immediate action.\n\nThe respondent contended that the power to order interim suspension is a quasi judicial power and it would not be comprehended within the language of sub-section ( 4) of section 13. But this contention is clearly fallacious and the prem>'se on which it is based is unsound. It is not correct to say that an order of interim suspension is a quasi judicial order and in any event, the language of sub-section ( 4) of section 13 is sufficiently \"'.ide and coprehenive to take within its scope and ambit every kmd of act.10n which may be considered necessary by the Vice-\n\nChnccllor m an e.mergency and there is no reason why such acb\\J!l should nt mclude making of an order of interim suspenion. The VJC~-Chancellor, therefore, clearly had power under\n\nectton 13, su~-secti'On ( 4) to make an order of interim snspension i'. he. thout i~ ne?essay. to make such an order in an emergent situation which m his opimon called for immediate action.\n\nThe resp.ondent sought to contend tbat at the date when the order of suspensio? was passed, there was no emergency which called for immed\\ate \"; chon on the part of the Vice-Chancellor and, therefore. the foundation for taking action under section 13, sub-section (4) was wanting and the order of suspension could not be justified under that provision.\n\n(l) A.l.R. 1964 S.C. 1329.\n\n(2) [1958] S.C.R. 1052. 5-240SCl/77\n\nBut this contention cannot be entertained by us srnce it has not been taken as a ground of challenge in the writ petition.\n\nWhether or not there was :m emergency requiring inunediate action on the part of the Vice-Chancellor is entirely a question of fact and if the respondent wanted to contest the validity of the exercise of power by the Vice-Chancellor under section 13, sub-section ( 4J in ma!dng the order of suspension, he should have pleaded in the writ petition that the order of suspension was outside the power conferred under se_ction 13, sub-section (4) as there was rio emergency.\n\nThe.respondent was aware from the recital contained in the order of suspensi'Vn that it was made by the Vice-Chancellor in exercise of the power coiiferred under section 13, sub-section (4) and; therefore, if the resp5Jndent wanted to challenge the exercise of this power on the ground t/iat there was no emergency justifying its exercise, he should have inade an averment to that effect in the writ petition. If such averment had been made in the writ petition, .the University and the Vice-Chai; icelJor would have had an opportunity of\" meeting it in the affidavit ih, reply filed by them, but no such averment having been made in !he writ petition, the University and the , Vice-Chancellor were not called upon to meet it.\n\nHence, we cannot permit the respondent to challenge the validity of the order of suspension on the ground that there was no emergency attracting the applicability of section 13, subcsecfron\n\n( 4).\n\nThe order of suspension made by the Vice-C..nancellorwas plainly and indubitably an order which the Vice-Chancellbr , had power to make under section 13, sub-section ( 4). It may be , noted that immediately after making the order of suspensi•'m the Vice- Chancel!or placed it before the Syndicate at its next meeting as required by the second part of section 13, sub-section (4) and'.the Syndicate approved of the action taken by the Vice-Chancellor by rejecting the representation of the respondent and recording the, fact of the making of the order of suspensi•on. .:•' 1 ·\n\nL'1. •· We may also refer to one other contention urged on behalf of the respondent and that was that by reason of section 52, sub-ection\n\n( l) the respondent was entitled to continue in service of the. University on the same terms and conditions as regulated his service. before the commencement of the Act of 1969 and iq view of' the provide to sub-section (2) of section; 52 the conditions of service of the respondent could not be varied to his disadvantage and, therefore, neither Statute 24 (ii) nor section 13, sub-section ( 4) could operate to confer on the Vice-Chancellor power to niake the order of suspension which he did not possess under the old terms an.d conditions.\n\nThis contention, plausible though it may seem, is, in our opinion, not\n\nwell founded.\n\nSection 52, sub-section (1) undoubtedly continued the service of a teacher on the same terms and conditions as regulated. his service before the commencement of the Act of 1969 ancl that was subject to the provisions of sub-section (2) of section 52. but this sub_iection to the prov:•; ions of sub-section (2) did not import the requirement set out in the second proviso that the conditibns of service of a teacher shall riot be varied to his disadvant, c. .The words \"subject to the provisions of sub-section (2)\" emoloved i_n subsection (1) of section 52 were intended merely to clarify thai ·. a\n\nVICE-CHANCELLOR v. DUSHIANT KUMAR (Bhagwati, ].) 5 7\n\nteacher shall continue in service on the same terms and conditions but subject to any allocation which may be made by the Vicc- Chancellor under sub-section (2) of section 52. Nothing in subsection (I) should be construed as in any way derogating from the power of the Vice-Chancellor to make an allocation of the teacher under section 52, sub-section (2). The proviso to sub-section (2) imposed a limitation on the power of the Chancellor to make an allocation by providing that in making such allocation the conditions of service of the employee shall not be _varied to hls disadvantage and it could not be construed as a substantive provision adding a requirement in sub-section (I) that even though the terms and conditions of service may permit alteration to the disadvantage of an employee, such alteration shall be inhibited.\n\nWe must, therefore, consider the impact of sub-section (I) of section 52 unaffected by. the proviso to sub-section (2). Now, it is obvious that even if the respondent \\vas entitled to continue in service on the same terms and conditions as before by reason of sub-secfron (I) of section 52; these very terms and conditions provided that he would'.hc bound by _any changes which might be made in the Statutes from time to time. Vide Statute 2 read with clause ( 6) of the Form of the Agreement annexed to the Statutes made under the Act of 1965.\n\nIf, therefore, any changes were made in the terms and conditions of service of the respondent by Statutes validly made under, the Act of 1969, the respondent could not complain of any infraction of the provi; sion of suo-section (I) of section 52.\n\nStatute 24(ii) was, as already pointed out above, a Statute validly made under section 48, sub-section (2) aµd hence the Vice-Chancellor was entitled to make the order of suspension against the respondent in exercise. of th_e power conferred b}' that Statute.\n\nSection 13, sub-section (4) of the Act of 1969 could also be ava; Icd\n\nof by the Viceancellor for sustaining the order of suspfosion, since it conferred the same power on the Vice-Chancellor as section 13, sub-section ( 4) of the Act of 1965 and exercise of the power conferred by it as against the respondent did not involve any violation of sub-secti'on (I) of section 52. .\n\nWe are, therefore, of the view that the order of suspension was n valid order made by the Vice-Chancellor in exercise of the power conferred upon him under Statute 24(ii) as also section 13, subsection (4) of the Act of 1969. Now, if the order of suspension was a valid order, it suspended the contract between he respondent and the University and nei'ther the respondent was'bound to perform his duties under the contract nor was the University bound to. pay any salary to him.\n\nThe respondent was entitled to receive from the University only such s_ubsistance allowance as might be payable under the rules and regulations governing his terms and conditions of service.\n\nThe legal position in regard to the right of a master to suspend his servant is now well settled as -a result of several decisions of this Court. The law on the subject was succinctly stated in the following words by Hegde, J., in V. P. Gindroniya v. State nf\n\nMadhyq Pradesh. (') : c• 1\n\n(1) [(9701 3 S.C.R. 4-1•.\n\n\"The general principle is that an employer can suspend an employee of his pending an enquiry into hi~ misconduct and the only question that can arise in such a suspension will relate to the payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid a employee to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself.\n\nOrdinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under 'ome Statute would mean that an employer would have po power to suspend an employee of his and even if he does so in the sense that he forbid the employee to work, he will have to pay the employee's wages duri'ng the periQd of suspension.\n\nWhere, however, ther~ is power to suspend either in the contract of employment. or in the statute or the rules framed thereunder the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension cau he passed agai'nst the employee while an enquiry is pending into his conduct even though there is no such term in the contract of employment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it could be withheld.\n\nThe disti'nction between suspending the contract of a service of a servant and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter case i~ always an implied term in every contract of service.\n\nWhen an employee is suspended in this sense, it means that the employer merely issues a direction to him that he should not do the service requi'red of him during a particular period.\n\nIn other words, the employer is regarded as issuing an order to the employe'! which because the contract is subsisting, the employee must obey.\"\n\nIt will, therefore, be seen that where there is power conferred on the\n\nemployer either by express term in contract or by the rules governing the terms and conditions of service to suspend an employ\"e. the order of suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the employee is not bound to render service and the employer is not bound to pay.\n\nIn such a case the employee would not be entitled to receive any payment at all from the employer unless the contract of employment or the rules governing the terms and conditions of service provide for payment of some subsistance allowance.\n\nHere, as we have held,\n\n~ ..\n\n• '\n\n-~---,\n\nVICE-CHANCELLOR v. DUSH!ANT KUMAR (Bhagwati, !.) 59\n\nthe Vice-Chancellor had the power to suspend the respondent under Statute 24(i~) or in any event under section 13, sub-section ( 4) and hence the respondent could not claim payment of his salary during the period of suspension.\n\nThe only payment which the respondent could claim to receive from the University was subsistence al}owance.\n\nif the rules governing the terms and conditions of his serv[ce made such a provisil:ln.\n\nThe University stated that it had adopted as a matter of practice the rules relating to Civil Servants of the State of J ammu & Kashmir for the purpose of payment of subsistence allowance to its employees and in fact the University Council at its meeting held on 22nd February, 1971 formally accorded approval to this practice.\n\nThe respondent was, therefore, clearly not entitled to receive from the University anything more than the subsistence allowance actually paid to him, which, we are told, was paid on the S:\\me basis as that prevailing under the rules relating to Civil Servants of the State of Jammu & Kashmir.\n\nThese were the reasons for whit:h wc made our order dated 17th December, 1976 upholding the validity of the order of suspension dated 21st May, 1970 and holding that the respondent was not entitled to anything more than the subsistence allowance paid to him during the period of suspension under the order of the Registrar D dated 6th June, 1970.\n\nP.B.R .\n\nAppeal allowed", "total_entities": 160, "entities": [{"text": "VICE-CHANCELLOR, JAMMU UNIVERSITY & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "VICE-CHANCELLOR, JAMMU UNIVERSITY & ANR", "offset_not_found": false}}, {"text": "DUSHIANT KUMAR RAMPAL", "label": "RESPONDENT", "start_char": 45, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "DUSHIANT KUMAR RAMPAL", "offset_not_found": false}}, {"text": "February 23, 1977", "label": "DATE", "start_char": 68, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "v.\n\nDUSHIANT KUMAR RAMPAL\n\nFebruary 23, 1977\n\n[P. N. BHAGWAT!,"}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 104, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.C. 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(2) statute 24(ii) was invalid because it was not within the terms of s. 48 (2) and the statute was not necessary for bringing the statutes in conformity with the provisions of the 1969-Act; (3) the po\\ver to order interim suspension was a quasi-judicial power and it would not be comprehended within the language of s. 13(4) and (4) s. 52(1) entitled him to continue in service on the same terms and conditions as before and under s. 52(2) his conditions of service could not be varied to his disadvantage; there_fore neither statute 24(ii) nor s. 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"end_char": 13911, "source": "regex", "metadata": {"linked_statute_text": "Kashmir University Act, 1965", "statute": "Kashmir University Act, 1965"}}, {"text": "Central Council", "label": "ORG", "start_char": 13965, "end_char": 13980, "source": "ner", "metadata": {"in_sentence": "It was constituted under the Jammu & Kashmir University Act, 1965 (hereinafter referred to as the Act of 1965) and, as provided in section 20, its central authorities included the Senate and the Central Council."}}, {"text": "Cenlral Council", "label": "ORG", "start_char": 13987, "end_char": 14002, "source": "ner", "metadata": {"in_sentence": "The Cenlral Council was the executive body of the University and it had the power inter a/ia to appoint teachers and to define their duties."}}, {"text": "25th April, 1966", "label": "DATE", "start_char": 14205, "end_char": 14221, "source": "ner", "metadata": {"in_sentence": "The respondent was appointed as a lecturer in English by the Central Council on 25th April, 1966 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Kashmir, on\n\nVICE-CHANCELLOR v. 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Court of J ammu & Kashmir", "label": "COURT", "start_char": 27442, "end_char": 27473, "source": "ner", "metadata": {"in_sentence": "be completed, the respondent filed a writ petitil::m in the High."}}, {"text": "28th April, 1972", "label": "DATE", "start_char": 27956, "end_char": 27972, "source": "ner", "metadata": {"in_sentence": "The writ petition was heard by a Single Judge of the High Court and by a judgment dated 28th April, 1972 the learned Judge dismissed the writ petition."}}, {"text": "22nd October, 1973", "label": "DATE", "start_char": 29333, "end_char": 29351, "source": "ner", "metadata": {"in_sentence": "The Letters Patent appeal thereafter came to be heard by a Division Bench of the High Court and the Division Bench, by a judgment dated 22nd October, 1973, took the view that the Order dated 24th December, 1969 was violative of secti'on 52, sub-section\n\n(1) of the Act of 1969 and the Order of suspension dated 21st May, 1970 was \"defective for want of jurisdiction and other legal infirmities\" and these two orders were accordingly quashed and set aside by the Division Bench."}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 33198, "end_char": 33209, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 33342, "end_char": 33352, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Jammu & Kashmir", "label": "ORG", "start_char": 33670, "end_char": 33694, "source": "ner", "metadata": {"in_sentence": "he did not hold or discharge the duties of any post or office in connection with the affairs of the University on contract basis, nor was he on deputation from any other service of the State of Jammu & Kashmir and he was, therefore, not covered by section 52, sub-section ( 4) under which the Order dated 24th December, 1969 was purported to be made, but his case was governed by section 52, subsection (I) which ensured him continuity in service on the same terms and conditions as before and hence the order da led 24th December, 1969 altering his terms and conditions as set out in\n\nVICE-CHANCELLOR v. 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"end_char": 40381, "source": "ner", "metadata": {"in_sentence": "It was with this object of bringing the Statutes in confirmity with sub-section ( 6) of secti<m 13 that Statute .24(i~) was added by way of modification in the Statutes by the Order dated 24th Deceniber, 1969."}}, {"text": "section 48", "label": "PROVISION", "start_char": 41030, "end_char": 41040, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 41191, "end_char": 41201, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 42287, "end_char": 42297, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 42417, "end_char": 42427, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 42464, "end_char": 42474, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": 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P. Gindroniya v. State nf\n\nMadhyq Pradesh. (') :"}}, {"text": "section 13", "label": "PROVISION", "start_char": 54234, "end_char": 54244, "source": "regex", "metadata": {"statute": null}}, {"text": "22nd February, 1971", "label": "DATE", "start_char": 54821, "end_char": 54840, "source": "ner", "metadata": {"in_sentence": "The University stated that it had adopted as a matter of practice the rules relating to Civil Servants of the State of J ammu & Kashmir for the purpose of payment of subsistence allowance to its employees and in fact the University Council at its meeting held on 22nd February, 1971 formally accorded approval to this practice."}}, {"text": "State of Jammu & Kashmir", "label": "GPE", "start_char": 55154, "end_char": 55178, "source": "ner", "metadata": {"in_sentence": "The respondent was, therefore, clearly not entitled to receive from the University anything more than the subsistence allowance actually paid to him, which, we are told, was paid on the S:\\me basis as that prevailing under the rules relating to Civil Servants of the State of Jammu & Kashmir."}}]}
{"document_id": "1977_3_455_471_EN", "year": 1977, "text": "HINDUSTAN LEVER LTD., BOMBAY A v. \"\n\nTHE\n\nMONOPOLIES &\n\nRESTRICTIVE TRADE\n\nPRACTICES\n\nCOMMISSION, NEW DELHI & ORS.\n\nApril 7, 1977\n\n[M. H. BEG C.J., AND A. C. GUPTA J.)\n\nAfonopoTies & Restrictive Trade Practices Act, 1969 s. 2(o) and 2(u)-Scope of-Stipulation in tht• agree1nent that the stockist \"shall purchase and .accept\n\nfrotn the contpany such stock as the co1npa11y at its discretion send\" and as to 1he quantity of goods to be purchased by the stockist-If amounts to restrictive trade practice.\n\nComplaint to the Commission-Who could lodge.\n\nAccording to s. 2(o) of the fonopolies & Restrictive Trade Practices Act a C \"restrictive trade practice\" means inter alia a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner.\n\nThe appellant, who was a manufacturer of consumer goods such as soaps and toilet preparations, entered into agreements with redistribution stockists for the wholesale distribution of its products. Clause 5 of the agreement, inter alia, provides that a stockist shall keep and maintain adequate stocks and shall carry out instructions and directions given by the appellant. He is prohibited from charging anything more than the stipulated maximum resale price. 'rhe last part of the clause provides that \"the redistribution stockist shal1 purchase and accept from the company such stock as the company shall, at its discretion, send to the redistribution st1)ckist for fulfilling its obligations under this agreement\".\n\nClause 9 prohibits the redistribution stockist from re-booking or in any way conveying, transporting or despatching parts of stocks of the products received by him outside the town except when he was so expressly directed in writing by the appellant. He shall also, whenever so required by the appeJlant, make available from the stocks such part as the appellant directs him to do.\n\nE . ''\"! , On a complaint made to the Monopolies & Restrictive Trade Practices Commission by one of the stockists the Commission, after examining els. 5 and 9 of the impugned agreement, held that the practice of resale price n1aintenance and full line forcing to \\vhic:h the origin'al cl, 5 related, shall be discontinued and shall not be repeated. It directed deletion of the last sentence of cl. 5 and declared cl. 9 as void.\n\nDismissing the appeal to this Court.\n\nHELD : The Commission was right in reframin.e: cl. 5 in the way it did.\n\nDeletion of the ]ast sentence of cl. 5 was essential to prevent possible misuse of the appe1Iant's power so as to regulate the prices contrary to the express provisions in the clause. [465 B; G]\n\n1 (a) The last part of cl. 5 placed the redistribution stockist at the mercy of the appellant which could dictate to him what amounts of various commodities he \"shaH purchase and accept from the company\". It also empowered the appellant to allocate send to the redistribution stockist only what it \"shall, at its discretion, send to the redistribution stockist for fulfilling its obligations\" under the agreement. [464 GJ\n\n(b) The word \"shall\" used in the clause did not bind down the exercise of the appellant's discretion by reference to any requirements of the consumers in a particular area in which .the stockist might sell. The stockist was bound to accept and carry out the appellant's decisions. [464 H]\n\n2(a) The contention that though the clauses gave power to the appellant to regulate trade. in practice they did not operate as restrictions is not well-founded.\n\nIt is not possible to isolate the terms of a contract from ' the practice. The appellant did not intend that the clauses in the agreement would be treated as\n\ndead letter. Although the practice of imposing restrictions under such clauses and the practice of introducing such clauses are separate practices, introduction of a clause like cl. 5 is itself a trade ptactice.\n\nMoreover, even if the power given in such wide terms was not meant to be exercised unreasonably, its presence in the agreement was a needless surplusage which could be used to impede freedom of competition and trade and this made it objectionable. [465 A]\n\n(b) Inasmuch as the introduction of clauses in an agreement, taken by itself. is a practice it would be specious reasoning to separate the clauses in the agreement from action under the agreement and then urge that the clauses are innocuous and should not be modified. {460 H; 461 A]\n\n3. From the definition of \"restrictive trade practice\" it is clear that if the introduction of the clause in itself is a trade practice and could be used to prevent, distort or restrict competition \"in any manner'', it could be struck down.\n\nThe definition of \"trade practice· is wide enough to include any \"trade practice· if it is in relation to the carrying on of a trade. If the result of introduction of a clause is to restrict trade it would be struck by lhe provisions of the Act.\n\n[461 E-G]\n\n4(a) Each type of business has its peculiarities, its own mode of operation, the special features relating to the market for it and the requirements of distribution of particular goods, to secure a just ancl equitable distribution consistently with the maintenance of freedom of competition so that prices are not artificially pushed up. [ 462 G]\n\n(b) The Te/co case is distinguishable. from the present on the ground that in that case the manufacturer who had the monopoly of special quality trucks, had to provide specially trained and skilled personnel with special equipment and tools for their maintenance and running. Therefore, the agreements did not restrict trade or curtail competition. [462 H]\n\n( c) In the instant case, the appellant couJd compel the stockist to buy the goods manufactured by it irrespective of whether the stockist wanted the goods or not. The appellant was under no obligation to render any service for the maintenance of the goods supplied.\n\nSecondly, the present is not a case in which the terms of the agreement were required to be explained by the facts to which they were meant to be applied. [ 463 C-D]\n\nTata Engineering & Locon1ot1\\'e Co., Ltd. v. The Registrar of Restrlctive Trade ARree111e111s [1977] 2 S.C.R. 685 distinguished.\n\n5. If it was clear fron1 the agreement that prices lower than the \"maximum re-sale price stipulated\"' might be charged by the stockist, then, there was no reason why it \\Vas necessary to clarify by circulars, what the stockist was free to do under the agreement.\n\nEven if the appellant's practice of issuing circulars was established, it did not justify retention of cl. 5 in a form which could be used to compel the stockist to act at the appellant's behests. [ 46.5 F] 6(a) The last part of cl. 5 made it necessary for the stockist to purchase such goods and in such combination as the appellant might decide.\n\nHence it would be struck bys. 33(1)(b) of the Act. [465 C]\n\n(b) Inasmuch as the original cl. 5 gave the stockist the discretion to sell at lower than maximum resale prices the agreement was not struck bys. 33(1)(b).\n\nBut, the deletion of the sentence. was essential to prevent possible misuse of the\n\nppellant's power by resort to it. [465 G]\n\nThe Co1nn1ission was justified in declaring cl. 9 as void and inoperative.\n\n[465 HJ\n\n7(a) The power to impose restrictions falling under s. 38 had to be justified by the appellant by actual proof of public interest which could not be better served without it [466 A].\n\n(b) Clause 9 gave the appellant an unreasonably wide power of deciding what is actually fair and equitable distribution \\Vhich is more a part of the duty of governmental authorities entrusted with powers of rationing such consumer goods in public interest.\n\nBefore any question of reasonableness of a power to\n\nration any goods is entrusted to any person r authority hoe goods must be A shown to be scarce or in short supply and evidence estabhshrng such a need has not been shown to exist in this case. [466 F-G]\n\n(c) The appellant was wrong in its contention that in holdin£ cl. 9 to be invalid, the purpose of \"equitable distribution\" was overlooked by the COlt:IJl!iSsion.\n\nThis supposed limitation did not restrict the appellant's power to decide what to distribute. The appellant was left to itself to decide what is \"equitable distribution\". The clause conferred too wide a power and is unreasonable.\n\nB -\n\n[469 HJ\n\n9. Under s. 55 an appeal lies to the Supreme Court only on one of the grounds mentioned in s. JOO, C.P.C. It is ncessary for the parties to formulate questions of law that arise for decision. [467 A]\n\nJO(a) The plea against use of \"per s, e\" rule referred to by the appellant means that on the assumption that a restriction is illegal in itself should not be made without examining its impact upon the particular trade involved. On the C other hand the \"rule of reason\" envisages consideration of facti of each case so as to determine the context in which the restraint was imposed. [468 C]\n\nBoard of Trade of .1/ie City of Chica{:o v. United States of A1nerica 62 Law Ed 231.\n\n(b) Jn Telco case this Court accepted the correctness of the approach that no bald or simple test should be adopted in judging the legality of a ri; straint upon trade. Such a view has nothing to do with rules Jelating to interpretation of documents used in finding out the effect and intent of words used in a docu~ ment. \\Vhenever a court dtermines the meaning and effect of the words of a D\n\nrule or a clause in an agreement it does not adopt what is termed as \"per se\" rule. All that the court does in such a case is to interpret the clause, the effect of which may become obvious on a bare determinatiOn of the meaning or may be seen fromother evidence. Where that effect is not obvious, evidence may be Jed to show how the language used is actually applied to the facts to which it was meant to apply. [ 468 D-F]\n\nIn the instant case, the Commission has correctly arrived at the conclusion that the clauses were unreasonable and illegal after taking into account the relevant factors.\n\nThe rules of reason applicable to a case like the present are\n\n(i) the meaning of the impugned clause or clauses in an agreement must be determined according to law and (ii) the possible effects of such a clause upon competition in the trade to be regulated must be determined. [469 B-C]\n\n( c) Consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers, which may be used to irnpose restrictions contrary to the Act. In Such a case the introduction of clauses constitute restrictive practice. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect which follows logically or reasonably from such determination. [469 F-G]\n\n(d) No oral evidence could be led to adduce the me; tning of the clauses in the agreement in view of ss. 91 and 92 of the Evidence Act. Section 92 proviso (6) is not a.-pplicable to the present case. [464 CJ\n\n(e) It is unnecessary to admit extraneous evidence as to the absence of distortion of competition. The probability of the effect is only part of the rule of reason to be applied where extraneous evidence is admissible. [470 B]\n\n(f) It is not possible to assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public.\n\nOn the evidence adduced it was not shown that this power was necessary so as to benefit the public. [470 DJ\n\n(g) Actual benefit to the public is a question of fact on which findinos cannot be reopened unless some error of law is revealed. No error of law i; assessing evidence was disclosfd. [470 E]\n\n(h) The confusion which may be created by using such terms as \"per se\"\n\nrule which could be applied to describe practices developed in other countries \\Vith different statutory provisions, should be avoided. [469 D-E]\n\n10. Proceedings before the Commissionare maititainable at the instance of a complainant 'vhose motives in making the complaint are quite irrelevant All that the Commission, and, on appeal, this Court, has-to examine is whether a practice by a company of introducing clauses complained of in the agrements\n\n\\vith the stockists, an1ounted to a restrictive trade practice. [460 D]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 680 of 1976.\n\nFrom the Judgment and Order dated the 17th March, 1976 of the Mouopolies and Restrictive Trade Practices Commission, New Delhi in R.T.P. Enquiry No. 11 of 1974.\n\nL. M. Singhvi, Ravinder Narain, Talat Ansari and Shri Narain for the Appellant.\n\nL. N. Sinha, Sol. General, B. Datta and Gb'ish Chandra for Respondents Nos. 1 and 2.\n\nG. A. Shali and N. Netlar for Respondent No. 13\n\nThe Judgment of the Court was delivered by-\n\nBEG, C. J.-This is an appeal under section 55 of the Monopolies . & Restrictive Trade Practices Act, 1969 (hereinafter referred to as 'the Act') against the order and judgment of the Monopolies & Restrictive Trade Practices Commission, New Delhi (hereinafter referred to as the 'Commission'), in proceedings started under section lO(a)\n\n(iv) of the Act against the appellant M/s. Hindustan Lever Ltd. (hereinafter referred to as 'the Company'), upqn information furnished by Bhogilal Manila! Shah of M/s. Shah Manila! Motichand & Sons of Poona (hereinafter referred to as the 'informant').\n\nThe informant was a redistribution stockist of the appellant company carrying on business regulated by the terms of an agreement, known as the redistribution stockists' agreement of the company, found in a standard printed form, entered into with each stockist. Ti1e agreement has 23 terms or clauses in it.\n\nThe clauses complained of are 5 a, id 9, which may be reproduced here :\n\n\"5. The Redistribution Stockist shall use his best endeavours to maintain and increase the trade of the Products in the said town and for this purpose he shall at all times keep and maintain adequate stocks of the Products in all its packings and he shall carry out all instructions and directions including those as to the maximum r,,,; a]e price which may from time to time be given by the Company or by the Company's accredited representatives in respect of the sale or resale or disposal by the Redistribution Stockist of stocks of the Products supplied to him in pursuance of this Agreement.\n\nThe Redistribution Stockist is prohibited from charging in excess of the maximum resale prices slipulated by the Company, but he may, at his discretion, charge prices lower than the said maximum resale prices.\n\nThe Redistribution\n\n) ..\n\nStockist shall purchase and accept from the Company such A stock as the Compa, ny shall at its discretion send to the Redistribution Stockist for fulfilling its obligations under this Ageement.\"\n\n\"9. In order to ensure equitable and reasonable distribution of stocks at fair prices, the Redistribution Stockist shall not rebook or in any way convey, transport or despatch B parts of stocks of the products received by him o_utside the aforesaid town except when he is so expressly directed n writing by the Company.\n\nHe shall also whenever so required by the Company make available from the stocks of Company's merchandise purchased by him such part as the Company directs him to do for purposes of resale on his behalf by the Company's employee.\" c It is alleged that I.he two clauses, set out above found in identical agreements entered into by the Company with its stockists, whose number is quite large, constitute or authorise restrictions which are unreasonable and illegal.\n\nHe, nce, it was submitted by the respondents that it must be struck down or modified so as to make the business and trade of the appellant company and its stockists conform to the requirements of law.\n\nThe Commission had accepted the case brought to its notice by the informant and made the following order :-\n\n\"(1). Clause 5 of the Agreement (Exhibit F) shall sta, nd modified so that the following shall be substituted in place thereof :\n\n\"5. The Redistribution Stockists shall use his best endeavours to maintain and increase the trade of the products in the said town and for this purpose he shall at all times keep and maintain adequate stocks of the products in al! its packings and he shall carry out the instructions and directions including those as to maximum resale price which may from time to time be given by the Company or by the Company's accredited representatives in respect of the sale or resale or disposal by the Redistribution Stockist of stocks of the products supplied to him in pursuance of this Agreement.\n\nThe Redistribution Stockist is prohibited from charging in excess of the maximum resale prices stipulated by the Company but he may at his discretion charge prices lower than the said maximum resale prices\".\n\n\"(2). The practices of resale price maintenance and full line forcing to which original clause 5 of the agreement related, shall be discontinued and shall not be repeated.\n\n(3) Clause 9 of the Agreement (Exhibit F) shall be void.\n\n( 4) The practice of area allocation to which clause 9 H of the Agreement (Exhibit F) related, shall be discontinued and shall not be repeated.\n\n(5) In all future price circulars or lists to be issued by the Respndents, it shall be clearly stated that the prices therein mentioned are maximum prices and that prices lower than those prices may be charged.\n\n( 6) This order shall come into force with effect from 1st July, 1976.\n\nOn or before the said date, the Respondents shall intimate all Redistribution Stockists of the modifications in Clauses 5 of the Agreement (Exhibit F) and the voidity of clause 9 of the Agreement (Exhibit F) ''.\n\nThere was some argument before us on the question whether proceedi1ngs before the Commission were maintainable at the instance of a \"complainant\" who had reasons to nurse a grievance against the Company and whose motives could be questioned.\n\nIt was pointed out that the agreement of the company with the informant had been terminated.\n\nThe version of the informant was that this had been done because his firm had sold Vanaspati at the rate of Rs. 127/- per tin which was below the price of Rs. 129.05 per tin fixed by the Company.\n\nThe informant stockist said that the price, had to be reduced by him to remove public discontent.\n\nWe think that the motives of the informant are quite irrelevant in such a case.\n\nAll that the Commission, and, on appeal, this Court has to examine is whether what would undoubtedly be a \"practice\" by the appellant company, of introducing the two clauses complained of, in its agreements with its stockists, amounted to a restrictive trade practice.\n\nThe distinction sought to be made on behalf of the appellant, between a practice and clauses in a contract which give a company E the power to regulate trade in a manner which may constitute a restriction, appears to be inconsequential here.\n\nWe do not think that we can isolate the terms of a contract from the actual practice of the company. It is not the case of the company anywhere that the clauses in its agreement with its stockists are to be treated as deadletter.\n\nIts case is that they do not operate as restrictions.\n\nThe introduction of such clauses in so many agreements meant to regulate F relations, either between a principal and an agent or the seller and the stockist who acquires complete proprietary rights in the stock of goods purchased, is itself a trade practice.\n\nThe simple question before us is : Can powers conferred upon the company under such clauses be exercised in such a way as to constitute restrictive trade practices?\n\nIt is true that the practice of imposing restrictions u, nder such clauses is one thing and the practice of introducing such clause• is quite another thing.\n\nBoth may constitute separate practices. Nevertheless, the introduction of such c1auses into an agreement between the manufacturer and the seller who purchases and stocks his goods is in itself something practised.\n\nIt is immaterial that the use of powers under such clauses may constitute another set of practices which depend upon the existence of such clauses as sources or springs. Inasmuch as the introduction of clauses in 5uch an agreement is a practice,\n\ntaken by itself, the question whether such a practice amounts to a restrictive trade practice or not could only be decided by considering\n\n) -l\n\nwhether the clauses could be so used as to unjustifiably restrict trade?\n\nA It would be specious reasoning, in such a case, to separate the clauses in the agreement from action under the agreement and then to urge that, as evidence of action under the clauses is meagre or even absent, the clauses are i, n:nocuous and shou; d not be modified or struck down because we are only concerned with what is actually being practised under them or with the use that is being made of such clauses and not with what is permissible or possible under the clauses of the agree- B ment of the kind before us.\n\nThis argnment seems to us to overlook the definition of \"restrictive trade practice\" contained in section 2 ( o) of the Act which lays down :\n\n\" ( o) \"restrictive trade practice\" mea, ns a trade practice which has, or may have, the effect of preventing distorting or restricting competition in any manner and in particular-\n\n( i) which tends to obstruct the flow of capital or resources. into the stream of production, or\n\n(ii) which tends to bring about manipulation of prices, or conditions of delivery or to affect the tlow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.\"\n\nIt is clear from a bare perusal of the abov<>-mentioned definition that it is not only the actual practice of a restriction under a clause which is struck by the provisions of the Act, but also a \"trade practice\" which \"may have\" the effect of restrictions falling within the mi'schief provided for.\n\nIn other words, if the introduction of the clause in itself is a trade practice and could be used to prevent, distort or restrict competition \"in any manner\" it may be struck down. A trade practice is defined by section 2(u) of the Act as follows :- ·\n\n\"(u) \"trade practice\" means any practice relating to the carrying on of any trade, and includes-\n\n(i) anything done by any person which controls or affects the price charged by, or the method of trading of, any trader or any class of traders.\n\n(ii) a single or isolated action of any person in relation to any trade\".\n\nThis definition is wide enough to include any \"trade practice\" if it G is in relation to the carrying on of a trade. It cannot be argned that the introduction of the clauses complained of does not amount to an action hich relates to the carrying on of a trade. If the result of that action or what could reasonably flow from it is to re8trict trade\n\ni~ the manner indicated, it will, undoubtedly, be struck by the provisions of the Act.\n\nReliance was sought to be placed by learned counsel for the\n\nappeant company ?n a recent decision of this Court in Tata Engineering & Locomotive Co. Ltd. v. The Registrar of the Restrictive\n\n3-502 SCI /77\n\nA Tr(]de Agreements, New Delhi(1 ) (hereinafter referred to as the \"Telco\" ease) where it was held :\n\n\"The definition of restrictive. trade practice is an exhaustive and not an inclusive one. The decision whether trade . practice is restrictive or not has to be arrived at by applying the rule of reason and not on the doctrine that any restriction as to area or price will per se be a restrictive trade practice.\n\nEvery trade agreement restrains or binds persons or plac~ or prices. The question is whether the restraint is such as regulates and thereby promotes competition or whether it fa such as may suppress or even destroy competition. To determine this question three matters are to be considered. First, what facts are peculiar to the business to which the restraint is applied. Second, what was the condition before and after the restraint was imposed. Third, what is the nature of the restraint and what is its actual or probable effect\".\n\nIt was also held there : • \"The question of competition cannot be considered in vacuo. or in a doctrinaire spirit. The concept of competition is to be understood in a commercial sense. Territorial restriction will promote competition whereas the removal of territorial restriction would reduce competition. As a result of territorial restriction there is in each part of India open competition among the four manufacturers. If the territorial restriction is removed there will be pockets without any competition in certain parts of India. If. the dealer in Kashmir is allowed to sell anywhere in India wealthy cities like Delhi, Bombay,. Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks. The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco.\n\nTherefore, competition will be reduced in Kashmir by the successful competitO( being put out of the field\".\n\nIt is evident that in the Telco ease this Court was considering the territorial restrictions placed upon the stockists of Telco in the light of the special facts and circumstances of that particular case. Each type of business has, undoubtedly, its peculiarities, its own mode of operation, the special features relating to the market for it, and the requirements of distribution of particular goods which may be the\n\n-~ subject matter of an agreement so as to seciire a just and equitable distribution consistently with maintenance of freedom of competition so that prices are not artificially pushed up. In the TeJco ease, the subject matter of the agreement was sale of trucks of a type in which the Telco had a monopoly inasmuch as no other firm produced trucks which were of such special quality and specifications.\n\nHence, there was great demand for these trucks, which were in short supply. Again, for the maintenance and running of those especially desil!Iled trucks the manufacturer had to provide especially trained and skilled personnel and snecial equipment and tools so as to enable stockists to service\n\nand repair trucks distributed. Unless the manufacturers were able to impose restrictions upon sales outside the areas in which they had\n\n{I) (1977] 2 S.C.R. 685.\n\n----··\n\nIIINDUSTAN LEVER LTD. v. M.R.T.P. COMMISSION (Beg, CJ.) 463\n\nestablished their stockist-cum-servicing suppliers, they could not at all render the kind of service they were giving in _addition to selling.\n\nIn other words, it was a mixed practice for purchase of trucks and provision of specialised service to the consumers, through the stockists.\n\nOn the peculiar facts and circumstances of that case, it was found that the agreements did not, on the whole, result in restricting trade or. curtailing competition.\n\nThe facts of the case before us are entirely diffrent. We are con- cerned here with a manufacturer of mixed consumer goods of different varieties.\n\nThe appellant company produces dehydrogenated oil (known in the market as \"Vanaspati\"), toilet preparations of various kinds such as. soaps, shaving creams, . toothpastes, and baby milk powder, and animal feeds.\n\nThe soaps manufactured by it are undoubtedly the main type of goods supplied. But, it manufactures other type of gocds too.\n\nIt can, therefore, compel stockists to by them, whether .stockists want these other goods or not, if the terms of the agreement are to be held to be binding and enforceable. The manufacturer is under no obligation to render any service in relation to maintenance of the goods supplied. The whole trade is completely unlike that of manufacture anJ sale of motor trucks for which the stockists, sellin~ to the actual consumers, had to, as already pointed . out, also have the services of the manufacturer's trained personnel for the purpascs cf maintenance' and repair of the vehicles supplied. It wculd amount to an application of the law in a thoroughly doctrinaire fashion if we were to deduce some general principles, from the very di!Terent facts of the Telco case and attempt to apply them to those of the case now before us.\n\nThus, the contention advanced on behalf of the appellant, against a doctrinaire approach in such cases, really weighs against the appellant comp:iny.\n\nIn the Telco case, the agreement could not be understood without reference to the actual facts to which they were sought to be ann'ied.\n\nThose facts explained the nature of the spec; al agreements for re\"riction or distribution of areas.\n\nIn the case before us. the nrf\"blern is entirely different.\n\nThis is. not a ce>e in which certain terms rf the agreement require to be explained by the facts to which they were mennt to be anolied. It is a clear case in which the me\"n; nos of the clauses are decisive.\n\nIf these clauses are caoable of being so used, on the meanings which aooear unambiguously from them. as to undoubtedly restrict trade, the intention to so use them to restrict trade could reasonably be inferred without any difficu1tv.\n\nOtherwise. why have them ? No oral evidence c0uld be led to deduce their rnc\"nin~ or to vary it in view of the. provisions oi sections 91 anrl CJ2 rf the Evidence Act. the princinles nf \\Vhich \\Vere. \\Ve think. ricrhtlv nn1ied bv the Commission. The Telco case. on •he other hand, was one in \\Vhi_ch cxfr:'lne('!us eviclence coulrl he led uncler ectinn_ Q?... nrnvic;:n (6) of the Evidence Act which may be set out here with Section 92\n\n\"92. When the terms of anv such contract, grant or 0ther disnnc:ition f\\f Uff\\oertv or anv matter reauired bv la\\V to be reduced to the form of a document, have been proved\n\naccording to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms :\n\nProviso (6)-Any fact may be proved which shows in B what manner the language of a document is related to existing fact\".\n\nThe principle embodied in s. 92(6) of the Evidence Act, which was applicable in Telco case (supra), is not, for the reasons given above, applicable in the case now before us.\n\nIndeed, no attempt has been made by reference to any case law apart from the Telco case (supra), which we have distinguished above, to show that extraneous evidence could have been led here in order to apply s. 92 proviso (6) of the Evidence Act. In the Telco case this provision was not directly referred to, but, we think, that it could have been applied there. Thus, we think that the basic difficulty, placed before us by learned counsel for the appellant, in the way of examining the plain meaning and effect of clauses 5 and 9 of the Distribution Stockists' agreement, does not exist at all in the case now under consideration. We must, therefore, proceed to examine the meanings of these clauses from the point of view of what could be done by the Company under them. If what may be done under these clauses could be a restrictive practice as defined by the Act, it was enough to vitiate them. A clause having been introduced in an agreement entered into, as a part of the settled practice of the company, could be struck by the provisions of s. 2 ( o) of the Act, set out above, quite apart from what is actually done under it.\n\nWe ilo not think that any other question is really relevant or need be considered by us at all in 'such a case. It is not a case in which we could be taken through the oral evidence, as has been attempted to be done, because that is shut out by an application of provisions of ss. 91 and 92 of the Evidence Act if all we need do is to interpret the agreement. We are unable to see why these provisions do not apply here.\n\nNot much argument appears to n's to be needed o demonstrate that the last sentence in paragraph 5 of the above mentioned clause places the redistribution stockist at the mercy of the company which can dictate to him what amounts of various commodities he \"shall purchase and accept from the company\" in the form of a total Jot supplied to him.\n\nThe company need only send to the redistribution stockist's what it \"shall at its discretion send to the Redistribution Stockists for fulfilling its obligations under this Agreement\".\n\nThe meaning and effect are obvious here.\n\nThe introduction of the word \"shall\" does not bind down the exercise of the discretion by reference to any requirements of the consnmers in a particular area which the stockists may convey to the company.\n\nHence, if the stockists want to remain on the list of the redistribution stockists of the company. the stockist is bound to accept and carry out the decision of the company. Even if, in view of some other practice adopted by the company.\n\nIIINDUSTAN LEVER LTD. v. M.R.T.P. COMMISSION (Beg, C.J.) 465\n\na power given in such wide terms was not meant to be exercised unreasonably, ifs presence in the agreement would be a needless surplusage which could, whenever the company wanted it, be used to impede freedom of competition and trade.\n\nThis result was enough to make it quite objectionable. We, therefore, think that the Commission was quite right in reframing clause 5 in the way it did. We are unable to find any flaw in the detailed reasons given by the Commission for doing th_at. ·\n\n. The Commission rightly points out that, among agreements the registration of which is compulsory according to the provisions of\n\nChaJ?tr V of the Act is, under section 33 ( ! )(b) is \"any agreement requmng a purchaser of goods, as a condihon of such purchase, to purchase some_ other goods\". : The last part of clause 5, as we have observed, clearly makes it necessary for the stockist to purchase such goods and in such combination as the company may decide. Hence, it would be struck by section 33(1) (b) of the Act. It has not been shown to have been registered under the Act.\n\nIt is also submitted on behalf of the respondent that clause 5 of the agreement infringes s. 33(l)(f) of the Act which requires registration of :\n\n\"any agreement to sell goods on condition that the prices to be charged on resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged\".\n\nThe Cmmis\"sion held that cluse 5 of the agreement meant provision for \"prices stipulated\" and that it had been so treated. by the company in its circulars stating that prices lower than the \"maximum resale price stipulated\" by the company may be charged. If that was so clear, there was no reason why the company should have attempted to clarify by means of its circulars what, according to it, the stockist is free to do under the agreement. Even if the practice of the company by issuing circulars is established, .it does not justify the retention of clause 5 in a form which can be used to compel stockists to act on the company's behests whether reasonable or not. On the other hand, it justifies its clarification by an alteration of it in the manner directed by the Commission so as to make the clause covering price rel!lllation also very clear.\n\nThe order of the Commission modifying clause. 5 only makes the position crystal clear.\n\nInasmuch as clause 5, even before deletion of the last sentence of it by the Commission, expressly gives the stockist the discretion to sell at lower than maximum resale prices stipulated, the agreement was not struck by s .. 33(1) (b). of the Act. But, the deletion of the last sentence was essential to prevent possible misuse of the company's powers, by resort to it, so as to even . regulate prices contrary to express provisions found earlier in the clause.\n\nTurning now to clause 9 of the agreement, we\" think that the Commission was right in reiecting the arrumenl that evidence led on behalf of the company was enough to establish that .clause 9 fell within one\n\nof the \"gateways\" provided by section 38 of the Act.\n\nA power to, impose restrictions falling under this provision had to be justified by the company by actual proof of a public interest which could not be better served without it.\n\nThe submission that section 38 could be applied here amounts at least to a concession that a clause conferring such wide power upon the manufacturer may be so used as to amount to a restrictive practice. It is the practice of putting in such a clause which has to be justified.\n\nThe power given to the company under clause 9 is very wide. The manufacturer can compel the redistribution stockists to make available to the company any stocks purchased by the stocki'st. It also compels the stockist to take .the permission of. the company for conveying, transporting, or despatching parts of stocks of the products received by him outside a specified town except when he is so expre'ssly directed in writing by the company. It directly prevents him from doing so without the company's permission. If the stockist violates this cond:- tion the whole agreement can be revoked by the company so that the stockist loses his right to carry on business under the agreement. lf what had to be justified is not how this power is actually used, but the practice of conferring such powers upon the company by placing the stockist t the mercy of the company, the evidence of facts showing how the power is exercised could be relevant only very indirectly.\n\nHowever,.if it could be shown that 'some facts did exist which make it imperative to confer such a power on the company for the benefit of the public, that may be relevant to establish the existence of a \"gateway\" under s. 38. But, it could certainly not be used to determine the meaning of a clause for which it is not necessary here to go beyond the language of the clause involved.\n\nWe are primarily concerned in this case, as we have repeatedly emphasized, with the clear meanings of the two clause's.\n\nAs the Commission pointed out, it is immaterial that a purchaser from outside may be able to get round clause 9 by purchasing across the counter from the stockist inside a town. The clause itself, however. gives to the company an unrca'sonably wide power of deciding what is actually fair and equitable distribution.\n\nThe Commission very rightly points out that th; s is more properly a part of the duty of governmental authorities which may be entrusted with powers of rationing such consumers' goods if this is found to be necessary in public interest.\n\nHowever, before any auestion of reasonableness of a power to ration any goods is entrusted by any method to any person or authority those goods must be shown to be scarce or in short supply.\n\nThat was the position in the Telco case (supra).\n\nEvidence establishing such a need has not been shown to exist.\n\nAnd, in any case. it hcs to be a very exceptional set of facts indeed which could justify lo•hng of such a power in the manufacturer. The Commi'ssion has dooll with a good deal of evidence to iustify its conclusion that the need to iustify the lodging of such a power in the company has not been established. We see no reason to disturb it.\n\nUnder the provisions of section 55 of the Act, an appeal lies to this Court only on one of the grounds mentioned in section 100 of the\n\nCode of Civil Procedure. It is, therefore, necessary in all such cases A for counsel to clearly formulate and direct our attention to only questions of law which arise so that these may be decided. It is uot permissible to go over the whole range of evidence led as was attempted before us.\n\nLearned counsel for the appellant when asked by us to formulate the questions of law which arise mentioned the following questions : B\n\nFirstly, whether the Commission was right in applying what he described as the \"per se\" rule as opposed to \"the rule of reason\". It was submitted that the correct rule which should have been applied is stated in Board of Trade of the City of Chicago v. United States of America, as follows (at p. 237) :\n\n\"Every agreement concerning trade, every regulation of trade, restrains. To bind to restrain, is of their very essence.\n\nThe true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition, or whether it is such as may suppress or even destroy competition.\n\nTo determine that question the Court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint, and its effect, actual or probable.\n\nThe history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts.\n\nThis is not because a good intention will save an otherwise objectionable regulation, or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences\".\n\nWe find no objection whatsoever in adopting the rule indicated above in cases to which it applies. That was a case in which a rule adopted\n\nby the Board of Trade of the City of Chicago (supra) prohibiting F offers to purchase during the period between the close of the call and the opening of the session on the next business day for sales of wheat, corn, oats, or rye at a price other than at the closing bid, was challenged.\n\nHence, questions relating to effects of the rnle arose so as to determine its reasonableness. Such questions could not be determined without examining evidence of facts to which the rule was meant to apply and findings as to how it operated.\n\nThe issue was whether G the rule, having regard to the facts to which it was to be applied, offended against the Anti-trust law's.\n\nThe Government's case was thus stated by Mr. Justice Brandeis (at p. 237) :-\n\n\"The Government proved the existence of the rule and described its application and the change in business practice involved.\n\nIt made no attempt to show that the , rule was H designed to or that it had the effect of limiting the amount of\n\n(I) 62 L •w. Ed. p. 131.\n\ngrain shipped to Chicago; or of retarding or accelerating shipment; or of raising or depressing prices; or of discriminating against any part of the public; or that it resulted in hardship to anyone.\n\nThe case was rested upon the bald proposition that a rule or agreement by which men occupying positiom of strength iu any branch of trade fixed prices at which they could buy or sell during an important part of the business day is an illegal restraint of trade under the Anti-trust Law. But the legality of an agreement or regulation cannot be determined by so simple a test as whether it restrains competition\".\n\nApparently, Dr. Singhvi means, by his plea against the use of a \"per se rule'', nothing more than an assumption, that a restriction is illegal in itself, should not be made without examining its impact upon the particular trade involved.\n\nAs contrasted with any such assumption what the learned counsel describes as \"the rule of reason\" was stated in the earlier passage quoted above giving the naure of facts to be considered so as to determine the context in which the restraint was imposed.\n\nThis Court accepted the correctness, in the Telco case (supra), of the approach that no bald or simple test, divorced from the context or surrounding circumstances, should be adopted in judging the legality of a restraint upon trade. Such a view, applicable to actual restriction's imposed, has really nothing to do with the rules relating to interpretation of documents which are used in finding out the effect and intent of words used in a document. It is after a difficulty of interpretation, if any, is resolved and a rule or a clause in an agreement is found to have either a clear meaning or to be ambiguous that its effect can be considered.\n\nNo doubt that effect has to be examined to determine how a restraint actually imposed affects trade.\n\nIt i's one thing to say that the impact of the restraint imposed on trade should be considered with reference to the nature of the trade or business to be regulated.\n\nIt is quite another to say that the effect cannot be gauged, sometimes, even by a bare examination of the meaning of a clause giving power to impose restraints apart from other evidence of what its actual effects are or may be.\n\nIn some case's, the\n\neffet itself is given primarily by the clear meaning of the language useci in the clause which is alleged to infringe the law.\n\nWe do not think that any \"per se rule\", if we may use this somewhat quaint expressi9n, is adopted whenever a Court determines the meaning and effects of the words of a rule or a clause in an agreement.\n\nAll that the Court does in such a case is simply to interpret the clause, the effect of which may become obviou's on a bare determination of the meaning or may be seen from other evidence too.\n\nWhere that effect is not obvious, as we have already indicated, evidence may be led ID show how the language used is actually applied to the facts to which it was meant to apply.\n\nThat is also a recognised rule of interpretation. It is the function of Courts to indicate and explain the varying facts and circumstances to which different rules of interpretation may apply.\n\nWhere meaning and intent of language used is given by the words used nothing more is needed.\n\n) -1\n\n_,.-\n\nFurthermore, the Commission held that, taking into account the A nature of goods or the business to be regulated by the agreement under consideration, the clauses, as they stood, were not permissible. It had applied the rule of reason in arriving at the conclusion that, upon the facts of a business in commonly used consumer goods of several varieties, which are not shown to be scarce, clauses under consideration having the obvious meaning and effect which their language carried with. them, are unreasonable and illegal. We are unable to see how any B law laid down in American decisions, dealing with Anti-trust laws, or in English cases, dealing with agreements in restraint of trade, lay down rules of reason at variance with the ones we are applying here.\n\nThe rules of reason applicable to a case like the one before us may be simply stated as follows : Firstly, the meaning of the impugned clause or clauses in an agreement said to offend the law must be determined according to law; secondly, the possible effects of such a clause C upon competition in the trade to be regulated must be determined.\n\nWe think that the Commission had rightly applied these rules and found the clauses to be capable of misuse.\n\nWe think that this was enough to vitiate the impugned clauses.\n\nWe would like to make it clear that we are really concerned only with the law as we find it in our own statute and can only examine D evidence in the light of our own law of evidence. We think that the confusion which may be created by using terms-such as \"per se'' rule-which could perhaps be more usefully applied to indicate doc· trines or to de'scrihe practices developed under very different sets of circumstances in other countries with statutory provisions couched in language which differs from that before us, should be avoided so i:ir as possible.\n\nSecondly, it was submitted that we should look at evidence of what takes place in the trade under consideration rather than clauses 5 and 9 of the agreement we have considered. We have already indirntect the correct procedure in such cases as the one before us. Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses F conferring wide powers which may be used to impose restrictions contrary to the Act.\n\nIn such a case, the introduction of clauses constitutes the restrictive practice.\n\nHence, their interpretation is all that we are really concerned with here in accordance with our law. Evidence of what is actually practised could only be relevant for purposes other than a determination of the meaning and the effect wr. ich follows logically or reasonably from such determination.\n\nThirdly, it was submitted that, in holding clause 9 to be invalid, the purpose of \"equitable distribution\", which imposes a limit on the powers of the company, was overlooked by the Commission. For the reasons already. given, we do not think that this supposed limitation reasonably restncts the company's power to decide what to distribute. \":he. coi:ip~?Y is left entirely to itself to decide what is \"equitable H\n\nd1tnbut10n . An mterpretat10n of a document, according to well established rul, s, canot be ?ispensed wth by labelling it as an application of a per se doctrme.\n\nWe thmk that the clause, as it stands,\n\nconfers too wide a power and has to be struck down wh.olly as unreasonable on that ground .\n\n. Fourthly, our attention was sought to be drawn to the absence of evidence of distortion of competition and the presence of evidence that competition prevails in the market ckspitc these clauses.\n\nWe have already !ield such oral evidence to be really unnecessary for judging the possible effects of the clauses. The probability of the effect is only part of the rule of reason to be applied where extraneous evidence is admissible. In the instant case we are only, as already indicated above. concerned with a reasonable and natural interpretation of the clauses of the agreement and their reasonably possible effects.\n\nFifthly, it was submitted that there was clear evidence of public benefit from an equitable distribution in actual practice so that the requirements of a \"gateway\" under s. 38 were satisfied.\n\nWe cannot assume public benefit from a mere declaration of intention to exercise a power so as to benefit the public. We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the public.\n\nFurtherfore, we cannot reassess evidence.\n\nActual benefit to the public is a question of fact on which findings cannot be reopened unkss some error of law is revealed. No error of law in assessing evidence is disclosed.\n\nThis is an additional reason for not disturbing the findings of fact recorded by the Commission.\n\nSixthly, it was submitted that the Commission had ignored the last sentence of clause 9 in interpreting it.\n\nWe have, however, con'sidered it and find that, far from making clause 9 more acceptable and reasonable. the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the Company. . ·\n\nLearned counsel for the appellant conipany has pointed out that the order of the Commission was to come into force from 1 July 1976. so that the appellant company had nearly four months to rewrite the agreements which are over four thousands in number.\n\nHe prays for extension of time for six months from today for executing fresh agreements. It is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law.\n\nThat is a matter for parties themselves to each agreement to decide and work out.\n\nAll that we need make clear is that all agreements which are operative and binding between parties will be so interoreted now as if clause 9 was not there at all and clause 5 was there only in the modified form which omits the last sentence from clause 5 as it originally stood.\n\nHowever, if the company wants to complete anv formalities for bringing each individual agreement into line with the law as declared by this Court it may do so; and. it will file. within six months from today an affidavit showing that it has done this.\n\nThe requirement to fifo\n\n) -1\n\nHINUUSTAN LEVER LTD. r. M.R_T.P. COMMISSION (Beg, C.J.) 471\n\nsuch an affidavit showing compliance will ensure that the company A has taken due steps to inform each stockist of the correct legal position.\n\nThe time given for doing this will not, however, authorise it to act under those parts of the agreement which this Court has declared to be illegal.\n\nSubject to the observations made above we uphold the Commission's order and dismiss this appeal with costs.\n\nP B.R.\n\nAppeal dismissed.", "total_entities": 98, "entities": [{"text": "HINDUSTAN LEVER LTD., BOMBAY", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN LEVER LTD., BOMBAY", "offset_not_found": false}}, {"text": "THE\n\nMONOPOLIES &\n\nRESTRICTIVE TRADE\n\nPRACTICES\n\nCOMMISSION, NEW DELHI & ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "THE MONOPOLIES & RESTRICTIVE TRADE PRACTICES COMMISSION, NEW DELHI & ORS", "offset_not_found": false}}, {"text": "M. H. BEG C.J.", "label": "JUDGE", "start_char": 132, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA J.", "label": "JUDGE", "start_char": 152, "end_char": 166, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Restrictive Trade Practices Act, 1969", "label": "STATUTE", "start_char": 183, "end_char": 220, "source": "regex", "metadata": {}}, {"text": "s. 2(o) and 2(u)", "label": "PROVISION", "start_char": 221, "end_char": 237, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act, 1969", "statute": "Restrictive Trade Practices Act, 1969"}}, {"text": "s. 2(o)", "label": "PROVISION", "start_char": 562, "end_char": 569, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act, 1969", "statute": "Restrictive Trade Practices Act, 1969"}}, {"text": "Restrictive Trade Practices Act", "label": "STATUTE", "start_char": 590, "end_char": 621, "source": "regex", "metadata": {}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 990, "end_char": 998, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act", "statute": "Restrictive Trade Practices Act"}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 1512, "end_char": 1520, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act", "statute": "Restrictive Trade Practices Act"}}, {"text": "Monopolies & Restrictive Trade Practices Commission", "label": "ORG", "start_char": 1933, "end_char": 1984, "source": "ner", "metadata": {"in_sentence": "On a complaint made to the Monopolies & Restrictive Trade Practices Commission by one of the stockists the Commission, after examining els."}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 2289, "end_char": 2294, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 2308, "end_char": 2313, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 2409, "end_char": 2414, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 2468, "end_char": 2473, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 2654, "end_char": 2659, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 3843, "end_char": 3848, "source": "regex", "metadata": {"statute": null}}, {"text": "[1977] 2 S.C.R. 685", "label": "CASE_CITATION", "start_char": 6155, "end_char": 6174, "source": "regex", "metadata": {}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 6558, "end_char": 6563, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 6684, "end_char": 6689, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 6893, "end_char": 6898, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 7192, "end_char": 7197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 7285, "end_char": 7290, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 7421, "end_char": 7429, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 7994, "end_char": 7999, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 8349, "end_char": 8354, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 8377, "end_char": 8390, "source": "ner", "metadata": {"in_sentence": "Under s. 55 an appeal lies to the Supreme Court only on one of the grounds mentioned in s. JOO, C.P.C. It is ncessary for the parties to formulate questions of law that arise for decision. ["}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 8439, "end_char": 8444, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 91 and 92", "label": "PROVISION", "start_char": 10897, "end_char": 10910, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 92", "label": "PROVISION", "start_char": 10932, "end_char": 10942, "source": "regex", "metadata": {"statute": null}}, {"text": "L. M. Singhvi", "label": "PETITIONER", "start_char": 12490, "end_char": 12503, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Ravinder Narain, Talat Ansari and Shri Narain for the Appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 12505, "end_char": 12520, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Ravinder Narain, Talat Ansari and Shri Narain for the Appellant."}}, {"text": "Talat Ansari", "label": "LAWYER", "start_char": 12522, "end_char": 12534, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Ravinder Narain, Talat Ansari and Shri Narain for the Appellant."}}, {"text": "Narain for the Appellant.", "label": "LAWYER", "start_char": 12544, "end_char": 12569, "source": "ner", "metadata": {"in_sentence": "L. M. Singhvi, Ravinder Narain, Talat Ansari and Shri Narain for the Appellant."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 12571, "end_char": 12582, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 12598, "end_char": 12606, "source": "ner", "metadata": {"in_sentence": "General, B. Datta and Gb'ish Chandra for Respondents Nos."}}, {"text": "Gb'ish Chandra", "label": "LAWYER", "start_char": 12611, "end_char": 12625, "source": "ner", "metadata": {"in_sentence": "General, B. Datta and Gb'ish Chandra for Respondents Nos."}}, {"text": "G. A. Shali", "label": "LAWYER", "start_char": 12657, "end_char": 12668, "source": "ner", "metadata": {"in_sentence": "G. A. Shali and N. Netlar for Respondent No."}}, {"text": "N. Netlar", "label": "LAWYER", "start_char": 12673, "end_char": 12682, "source": "ner", "metadata": {"in_sentence": "G. A. Shali and N. Netlar for Respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 12751, "end_char": 12754, "source": "ner", "metadata": {"in_sentence": "13\n\nThe Judgment of the Court was delivered by-\n\nBEG, C. J.-This is an appeal under section 55 of the Monopolies . &"}}, {"text": "section 55", "label": "PROVISION", "start_char": 12786, "end_char": 12796, "source": "regex", "metadata": {"statute": null}}, {"text": "Restrictive Trade Practices Act, 1969", "label": "STATUTE", "start_char": 12819, "end_char": 12856, "source": "regex", "metadata": {}}, {"text": "Monopolies & Restrictive Trade Practices Commission, New Delhi", "label": "ORG", "start_char": 12934, "end_char": 12996, "source": "ner", "metadata": {"in_sentence": "Restrictive Trade Practices Act, 1969 (hereinafter referred to as 'the Act') against the order and judgment of the Monopolies & Restrictive Trade Practices Commission, New Delhi (hereinafter referred to as the 'Commission'), in proceedings started under section lO(a)\n\n(iv) of the Act against the appellant M/s. Hindustan Lever Ltd. (hereinafter referred to as 'the Company'), upqn information furnished by Bhogilal Manila!"}}, {"text": "Hindustan Lever Ltd.", "label": "PETITIONER", "start_char": 13131, "end_char": 13151, "source": "ner", "metadata": {"in_sentence": "Restrictive Trade Practices Act, 1969 (hereinafter referred to as 'the Act') against the order and judgment of the Monopolies & Restrictive Trade Practices Commission, New Delhi (hereinafter referred to as the 'Commission'), in proceedings started under section lO(a)\n\n(iv) of the Act against the appellant M/s. Hindustan Lever Ltd. (hereinafter referred to as 'the Company'), upqn information furnished by Bhogilal Manila!", "canonical_name": "HINDUSTAN LEVER LTD., BOMBAY"}}, {"text": "Clause 5", "label": "PROVISION", "start_char": 15858, "end_char": 15866, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 16871, "end_char": 16879, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 16960, "end_char": 16968, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 17060, "end_char": 17068, "source": "regex", "metadata": {"statute": null}}, {"text": "1st July, 1976", "label": "DATE", "start_char": 17426, "end_char": 17440, "source": "ner", "metadata": {"in_sentence": "( 6) This order shall come into force with effect from 1st July, 1976."}}, {"text": "clause 9", "label": "PROVISION", "start_char": 17613, "end_char": 17621, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 21054, "end_char": 21063, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(u)", "label": "PROVISION", "start_char": 22134, "end_char": 22146, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 24460, "end_char": 24465, "source": "ner", "metadata": {"in_sentence": "As a result of territorial restriction there is in each part of India open competition among the four manufacturers."}}, {"text": "Kashmir", "label": "GPE", "start_char": 24646, "end_char": 24653, "source": "ner", "metadata": {"in_sentence": "the dealer in Kashmir is allowed to sell anywhere in India wealthy cities like Delhi, Bombay,."}}, {"text": "Delhi", "label": "GPE", "start_char": 24711, "end_char": 24716, "source": "ner", "metadata": {"in_sentence": "the dealer in Kashmir is allowed to sell anywhere in India wealthy cities like Delhi, Bombay,."}}, {"text": "Bombay", "label": "GPE", "start_char": 24718, "end_char": 24724, "source": "ner", "metadata": {"in_sentence": "the dealer in Kashmir is allowed to sell anywhere in India wealthy cities like Delhi, Bombay,."}}, {"text": "Calcutta", "label": "GPE", "start_char": 24727, "end_char": 24735, "source": "ner", "metadata": {"in_sentence": "Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks."}}, {"text": "Telco", "label": "ORG", "start_char": 24971, "end_char": 24976, "source": "ner", "metadata": {"in_sentence": "The other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco."}}, {"text": "TeJco", "label": "ORG", "start_char": 25701, "end_char": 25706, "source": "ner", "metadata": {"in_sentence": "In the TeJco ease, the subject matter of the agreement was sale of trucks of a type in which the Telco had a monopoly inasmuch as no other firm produced trucks which were of such special quality and specifications."}}, {"text": "(1977] 2 S.C.R. 685", "label": "CASE_CITATION", "start_char": 26347, "end_char": 26366, "source": "regex", "metadata": {}}, {"text": "sections 91", "label": "PROVISION", "start_char": 29230, "end_char": 29241, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 92", "label": "PROVISION", "start_char": 29529, "end_char": 29539, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92(6)", "label": "PROVISION", "start_char": 30131, "end_char": 30139, "source": "regex", "metadata": {"statute": null}}, {"text": "Telco", "label": "GPE", "start_char": 30358, "end_char": 30363, "source": "ner", "metadata": {"in_sentence": "Indeed, no attempt has been made by reference to any case law apart from the Telco case (supra), which we have distinguished above, to show that extraneous evidence could have been led here in order to apply s. 92 proviso (6) of the Evidence Act."}}, {"text": "s. 92", "label": "PROVISION", "start_char": 30489, "end_char": 30494, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 31331, "end_char": 31335, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 91 and 92", "label": "PROVISION", "start_char": 31695, "end_char": 31708, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 33280, "end_char": 33288, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33", "label": "PROVISION", "start_char": 33569, "end_char": 33579, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 33720, "end_char": 33728, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 33898, "end_char": 33911, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 34044, "end_char": 34052, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(l)(f)", "label": "PROVISION", "start_char": 34080, "end_char": 34091, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 34917, "end_char": 34925, "source": "regex", "metadata": {"statute": null}}, {"text": "clause. 5", "label": "PROVISION", "start_char": 35256, "end_char": 35265, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 35318, "end_char": 35326, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 35785, "end_char": 35793, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 35951, "end_char": 35959, "source": "regex", "metadata": {"statute": null}}, {"text": "section 38", "label": "PROVISION", "start_char": 36007, "end_char": 36017, "source": "regex", "metadata": {"statute": null}}, {"text": "section 38", "label": "PROVISION", "start_char": 36230, "end_char": 36240, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 36526, "end_char": 36534, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 37674, "end_char": 37679, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 38064, "end_char": 38072, "source": "regex", "metadata": {"statute": null}}, {"text": "section 55", "label": "PROVISION", "start_char": 39189, "end_char": 39199, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100", "label": "PROVISION", "start_char": 39281, "end_char": 39292, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 39301, "end_char": 39324, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Chicago", "label": "GPE", "start_char": 41160, "end_char": 41167, "source": "ner", "metadata": {"in_sentence": "That was a case in which a rule adopted\n\nby the Board of Trade of the City of Chicago (supra) prohibiting F offers to purchase during the period between the close of the call and the opening of the session on the next business day for sales of wheat, corn, oats, or rye at a price other than at the closing bid, was challenged."}}, {"text": "Brandeis", "label": "JUDGE", "start_char": 41839, "end_char": 41847, "source": "ner", "metadata": {"in_sentence": "The Government's case was thus stated by Mr. Justice Brandeis (at p. 237) :-\n\n\"The Government proved the existence of the rule and described its application and the change in business practice involved."}}, {"text": "Singhvi", "label": "OTHER_PERSON", "start_char": 42761, "end_char": 42768, "source": "ner", "metadata": {"in_sentence": "Apparently, Dr. Singhvi means, by his plea against the use of a \"per se rule'', nothing more than an assumption, that a restriction is illegal in itself, should not be made without examining its impact upon the particular trade involved."}}, {"text": "clause 9", "label": "PROVISION", "start_char": 48180, "end_char": 48188, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 49640, "end_char": 49645, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 50316, "end_char": 50324, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 9", "label": "PROVISION", "start_char": 50410, "end_char": 50418, "source": "regex", "metadata": {"statute": null}}, {"text": "1 July 1976", "label": "DATE", "start_char": 50692, "end_char": 50703, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the appellant conipany has pointed out that the order of the Commission was to come into force from 1 July 1976."}}, {"text": "clause 9", "label": "PROVISION", "start_char": 51308, "end_char": 51316, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 51342, "end_char": 51350, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 51422, "end_char": 51430, "source": "regex", "metadata": {"statute": null}}, {"text": "HINUUSTAN LEVER LTD", "label": "PETITIONER", "start_char": 51740, "end_char": 51759, "source": "ner", "metadata": {"in_sentence": "The requirement to fifo\n\n) -1\n\nHINUUSTAN LEVER LTD.", "canonical_name": "HINDUSTAN LEVER LTD., BOMBAY"}}]}
{"document_id": "1977_3_472_474_EN", "year": 1977, "text": "UNION OF INDIA AND ORS.\n\nGUJARAT WOOLLEN FELT MILLS\n\nApril 7, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nCentral Excises and Salt Act, 1944-Schedule I Entry 21-Non-woven felts 1nan1.:'faptured out of v.oollen fibres by machine pressing, whether \"woollen (cbncs' for the purpose of levy of excise duty-Rule of interpretat!on of items 111 a statute.\n\n1 An excise duty o~ Rs. 550~~.87 was. levied and collected from tl?-e responuent-firm by the Excise authont1es treating the non-woven felts manufactured by hem as \"'••oollen fabrics\" covered by entry 21 in Schedule I to the Central Excises and Salt Act, 1944. The Gujarat High. Court allowed the writ petition filed by the respondent and held that the respondent's products were not \"woollen fabrics\" and directed the refund of th~ entire sum collected as excise duty.\n\nDismissing the appeal by certificate to this Court,\n\nJIELD : ( 1) The well-known rule in interpreting items in statutes is that resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, their commercial sense. [474 A-B]\n\n Commissioner of Sales Tax, .Madhya Pradesh, Indore v. M/s. lalwant Singh . Charan Singh, AIR 1967 SC -1454, applied. .\n\n(2) Fabric means woven mater'ial. Entries 19 to 22 in the Schedule de31 v; ith fabrics. Entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of \\Vool, barring the exceptions mentioned, including blankets, lohis, rugs, shawls and embroidery in the piece in strips or in motifs.\n\nThe word ••fabric\" in entry 21 has been used to mean woven material in \\Vhich\n\ns1nse it is popularly understood._ The term \"woollen fabrics\" in that sense was not wide. enough to cover non-woven material which is \\VOOl-based.\n\nBlankets. rugs and sha·.vls etc. have been spccifica11y included in the entry out of abundant caution to indicate that '\\vooTJen fabrics\" in entry 21 means not only woo11en garments but also woollen mter'.al used as covering or for similar other purposes. [473 H, 474 F-GJ\n\n(3) It is plain from entry 21 inSchedule I to the -Central EXcises and Salt Act, 1944 that the respondent's products did no_t fall within it as they are non- \\\\'Oven felts from wooUen fibres. [474 C] ' CIVIL APPELLATE- JURISDICTION : Civil Appeal No. 1037 of 1971. (From thei Judgment and Order dated the 17th June, 1971 of the Gujarat High Court in Special Civil Application No. 112/67).\n\nV. P. Raman, Addi. Sol.\n\nGenl. and Girish Chandra, for the appellants.\n\nG. N. Dikshit and R. N. Dikshit, for the respondent.\n\n. The Judgment of the Court was delivered by GUPTA, J.-The respondent is a partnership firm manufacturing II non-woven felts from woollen fibres which -are utilised for the purpose of filtration in heavy industries. Between August 25, 1965 and January 5. 1967 the Excise authorities compelled the re'spondent to pay Rs. 55,055/87 p. as excise duty o_n its products. The respondent\n\n. .\"\"\n\n) .I\n\nUNION V. GUJARAT WOOLLEN FELT MILLS (GUPTA, J.) 473\n\nfiled a writ petition in the High Court of Gujarat at Ahmedabad for A quashing the order levying excise duty on the felts manufactured by the respondent treating them as 'woollen fabrics' covered by entry 21 in Schedule I to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act).\n\nThe High Court allowed the writ petition holding . that the respondent's products were not 'woollen fabrics' and directed refund of the sum of Rs. 55,055/87 p. collected as excise duty from the firm.\n\nThe Union of India has preferred this B appeal on certificate of fitness granted by the High Court questioning the correctness of the decision.\n\nThe only question in the appeal is whether the felts manufactured by the respondent are \"woollen fabrics\" within the meaning of entry 2 I in the first schedule to the Act.\n\nThe writ petition describes the process of manufacture and states that the thickness of the felts produced varies from 1 mm. to 50 mms. according to the specification of the customers and that these are really machine pressed raw woolwaste. It is stated further that the felts manufactured _by the process described are neither sheets nor fabrics, they arc not material from which garments could be prepared nor they could be used as covering\n\nor for similar other purposes. Entry 21 in the first schedule to the Act reads :\n\n\"21. WOOLLEN FABRICS-\n\n\"Woollen fabrics\" means all varieties of fabrics manufactured wholly of wool or which contain 40 per cent, or more by weight of wool and includes blankets, !obis, rugs, shawls and embroidery in the piece, in strips or in motifs :\n\nProvided that in the case of embroidery in the piece, in strip9 or in motifs, the percentage referred to above shall be in relation to the base fabrics which are embroidered- (!) Woollen fabrics, other than Ten percent. embroidery in the piece, in ad valorem. strips or in motifs. ----\n\n(2) Embroidery in the piece in The duty for strips or in motifs, in or in the time being relation to the manufacture leviable on the of which any process is ordbase fabrics, inarily carried on with the if not already aid of power. paid, plus twenty percent. ad valorem.\n\nExp/ana(ion.-\"Base fabrics\" means fabrics falling under sub-item ( 1) of this Item which are subjected to the process of embroidery.\"\n\nAre the products of the respondent's factory woollen fabrics ?\n\nFabric means woven material.\n\nThe articles manufactured by the respondent, as already stated, are non-woven felfs from woollen fibres.\n\nIt is contended on behalf of the appellant, Union of India.\n\n. .t74\n\nSUPREME COURT REPORTS [1977] 3 s.c.R .\n\nthat in a technical sense the felts manufactured by the respondent would still be woollen fabrics.\n\nThe well-known rule in interpreting items in statutes like the one we are concerned with is that \"resort should be had not to the scientific or the technical meaning of 'such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense\".\n\n(Commissioner of Sales Tax, Madhya Pradesh, Indore v.\n\nM/s.\n\nJaswant Singh Charan Singh)(').\n\nThe High Court has held that a trader dealing in woollen fabrics would not regard the respondent's products as woollen fabrics, but it does not appear that there is any evidence on the record of the case to support the finding.\n\nHowever, an inquiry regarding the meaning of the term woollen fabrics as commercially understood would be relevant only when there is doubt asto the sense in which the term has been used in entry 21; it seems to us plain from the entry read as a whole that the respondent's products did not fall within it. Entries 19 to 22 in the schedule all deal with fabrics.\n\nEntry 19 dwls with cotton fabrics which is stated to cover, barring the exceptions specified, all varieties of fabrics manufactured either wholly or partly from cotton and includes, dhoties, sarees, chadders, bed-sheets, bed-spreads etc.\n\nEntry 20 relates to slik fabrics which is said to mean all varieties of fabrics manufactured either wholly or partly from silk with certain exceptiom and includes embroidery in (he piece, in strips or in motifs. Entry 22 relates to rayon or artificial silk fabrics which also is said to mean all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk with some exceptions and includes embroidery in the piece, in strips or in motifs etc. In this group, entry 21 describes woollen. fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blankets,\n\nlohi's, rurs, shawls and l'mbroidery in the piece, in strips or in motifs. If the term 'woollen fabrics' in this entry had been used in its technical or scientific sense and, if in that sense, it. was \\Vidc enoun-h tO cover ro:n \\Voven material \\vhich js \\Vool-based, then it is difficult to explain why the entry should specifically mention blankets, rugs and shawls as hein2 included within it. No one could possibly be in any doubt in respect of these few items if the term was so pervasive, and there was no reason for sinoling out these specific objects.\n\nOn the contrary, the mention of these items sugests that the word 'fabrics' in entry 21 has been used to mean woven material in which sense it is popularlv understood, and blankets, rugs and shawls etc. have been specifically included in the entry out of abundant caution to. indicate that 'woollen fabrics' in entry 21 means not only woollen garments but also woollen material used as covering or for similar other purposes. We therefore find no reason to take a view different from that taken by the Hirrh Court. .\n\nThe appeal is. dismissed with costs.\n\n. .. . --1\n\nS.R .\n\nAppeal dismissed.\n\n. (I) A.LR. 1967 S.C. 1454.", "total_entities": 25, "entities": [{"text": "UNION OF INDIA AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA AND ORS", "offset_not_found": false}}, {"text": "GUJARAT WOOLLEN FELT MILLS", "label": "RESPONDENT", "start_char": 25, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "GUJARAT WOOLLEN FELT MILLS", "offset_not_found": false}}, {"text": "April 7, 1977", "label": "DATE", "start_char": 53, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "GUJARAT WOOLLEN FELT MILLS\n\nApril 7, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 102, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Central Excises and Salt Act, 1944", "label": "STATUTE", "start_char": 124, "end_char": 158, "source": "regex", "metadata": {}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 159, "end_char": 169, "source": "regex", "metadata": {"linked_statute_text": "Central Excises and Salt Act, 1944", "statute": "Central Excises and Salt Act, 1944"}}, {"text": "Schedule I to the Central Excises and Salt Act, 1944", "label": "STATUTE", "start_char": 574, "end_char": 626, "source": "regex", "metadata": {}}, {"text": "Gujarat High. Court", "label": "COURT", "start_char": 632, "end_char": 651, "source": "ner", "metadata": {"in_sentence": "The Gujarat High."}}, {"text": "Charan Singh", "label": "OTHER_PERSON", "start_char": 1262, "end_char": 1274, "source": "ner", "metadata": {"in_sentence": "Charan Singh, AIR 1967 SC -1454, applied. ."}}, {"text": "s1", "label": "PROVISION", "start_char": 1699, "end_char": 1701, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to the -Central EXcises and Salt Act, 1944", "label": "STATUTE", "start_char": 2153, "end_char": 2206, "source": "regex", "metadata": {}}, {"text": "V. P. Raman", "label": "JUDGE", "start_char": 2511, "end_char": 2522, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, Addi."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 2546, "end_char": 2560, "source": "ner", "metadata": {"in_sentence": "and Girish Chandra, for the appellants."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 2583, "end_char": 2596, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and R. N. Dikshit, for the respondent.", "canonical_name": "G. N. Dikshit"}}, {"text": "R. N. Dikshit", "label": "LAWYER", "start_char": 2601, "end_char": 2614, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and R. N. Dikshit, for the respondent.", "canonical_name": "G. N. Dikshit"}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 2682, "end_char": 2687, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GUPTA, J.-The respondent is a partnership firm manufacturing II non-woven felts from woollen fibres which -are utilised for the purpose of filtration in heavy industries."}}, {"text": "August 25, 1965", "label": "DATE", "start_char": 2861, "end_char": 2876, "source": "ner", "metadata": {"in_sentence": "Between August 25, 1965 and January 5."}}, {"text": "UNION V. GUJARAT WOOLLEN FELT MILLS", "label": "PETITIONER", "start_char": 3032, "end_char": 3067, "source": "ner", "metadata": {"in_sentence": ") .I\n\nUNION V. GUJARAT WOOLLEN FELT MILLS (GUPTA, J.) 473\n\nfiled a writ petition in the High Court of Gujarat at Ahmedabad for A quashing the order levying excise duty on the felts manufactured by the respondent treating them as 'woollen fabrics' covered by entry 21 in Schedule I to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act)."}}, {"text": "High Court of Gujarat at Ahmedabad", "label": "COURT", "start_char": 3114, "end_char": 3148, "source": "ner", "metadata": {"in_sentence": ") .I\n\nUNION V. GUJARAT WOOLLEN FELT MILLS (GUPTA, J.) 473\n\nfiled a writ petition in the High Court of Gujarat at Ahmedabad for A quashing the order levying excise duty on the felts manufactured by the respondent treating them as 'woollen fabrics' covered by entry 21 in Schedule I to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act)."}}, {"text": "Schedule I to the Central Excises and Salt Act, 1944", "label": "STATUTE", "start_char": 3296, "end_char": 3348, "source": "regex", "metadata": {}}, {"text": "Union of India", "label": "ORG", "start_char": 3593, "end_char": 3607, "source": "ner", "metadata": {"in_sentence": "The Union of India has preferred this B appeal on certificate of fitness granted by the High Court questioning the correctness of the decision."}}, {"text": "Jaswant Singh Charan Singh", "label": "RESPONDENT", "start_char": 6163, "end_char": 6189, "source": "ner", "metadata": {"in_sentence": "(Commissioner of Sales Tax, Madhya Pradesh, Indore v.\n\nM/s.\n\nJaswant Singh Charan Singh)(')."}}, {"text": "Hirrh Court", "label": "COURT", "start_char": 8730, "end_char": 8741, "source": "ner", "metadata": {"in_sentence": "We therefore find no reason to take a view different from that taken by the Hirrh Court. ."}}]}
{"document_id": "1977_3_475_484_EN", "year": 1977, "text": "M/S. CARBORANDUM CO.\n\nC.I.T., MADRAS April 11, 1977\n\n{P. N. BIIAGWATI, N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]\n\n/11con1e-tax Act, 1922-S. 4(1)(e)-Distinction between concept of actual accrual and notion on deenied accrual-Reference under lncome-tnx Act, 1922- New facts neither raised nor considered by the Tribunal cannot be entertailled by the Hij[h Court at reference s/af?e.\n\n Inco111e-tax Act, 1922-S. 42-Scope and applicab;!ity of 'business connection'.\n\nThe appellant a foreign company \\vithin the Il1eaning of s. 2(5.·\\) of Jncome Tax Act, entered into an agreement with 1\\1/s. Carborandum UniversaJ Ltd., _..,,,- having its registered office at 1\\Iadras on June 22, 1955 and rendered certain technical and knowhow services. In view of the said services it \\vas to rece; ve from the Indian cornpany an annual service fee equal to 3 per centum of the net sale proceeds of the products manufactured by the latter.\n\nDuring the year of account relevant to the assessment year 1957-58 the appellant company received a sum of Rs. 95,762/- from the Indian company as its service fee.\n\nA £ood slab of it \\va3 deducted at source on account of incometax and super-ax. The appellant con1pany filed its return of incoine for the year in question w:th an application for refund of the entire tax deducted at source.\n\nThe income tax officer took the view in his assessment order that sc;::, of the technical fee p3i<l to the American company was earned by it in India and only that small ..amount wns assessable to income-tax and directed the refun(J of rnajr; r portion of the tax deducted at sou\"rce to the assessee company. The Commissioner of Income-tax in exercise of his revjsional p1; nvers under s. 33B of the Act took the view that at least 75% of the technical fee earn..:!d _by the assessing company during the year of account had accrued of arisen in Jr.dia even though\n\nthe technical information was supplied by the asseSsee company from outside India and the technical personnel furnished by the assessee company to the Indian company although worked under the control of and \\vas pad for by the Jatl':r\n\ninasmuch as the situ'i of the services so rendered was in India.\n\nTreating the technical fee in the nature of royalty paid, it directed the Incomtax Officer to revise the ass:ssrnent on the basis that 75% of it should be taken as incnn1e accruing or 3-rising in Ind.a to the assessee company. On appeal, the Appe!Infe Tribunal set aside the said ordr and restored that of the Incometax Ofil:er even\n\nthough it was of the view that even 5% of the technical fee conlJ not be taken as income of_ the asses$ec COJDpany taxable under the Act. The Tribunal held\n\nthnt Li.! u:::e of the tchn'.cal assistance and know-ho\\v given by the American Company and made use of by the Indian Company in the taxable territor\\' couid not make the former Fable to payment cf income tax on the amount of tec_hnical fee received by it nor \\vas it any royalty. It also rejected a new stand t:iken by the Revenue that the assessee company must be deemed to be working in conjunction with the Indian Company in the manufacture of its rroducto;.\n\nOn reference under s. (€(1) of th~ Act the Revenue took another new plea that the agreement c1car1Y established a business connect£on between the two companies and as such techrlical fee received by the assssee comp:iny hnd-accrued or arose from such business connection a:ssessable to income-tax under s. 4(1) (c) rt>nd withs. 42 of the Act. \"fhc objectiorl of the-assessce con1pany to the entertninment of the new Point at the reference stage that it did not arise out of the Tribunal's order was over-ruled bv the Hie:h Cntl't nn the ground that tte\n\n1question referred to _was in general terms and comnrehensive en\"ouzh to embrace\n\nwithin its ambit the point of anniicability of s. 42f1) of thP. Act to th,,. trn., o:ic tions in question. Upholding the stand taken .on behalf: of the Revenue the Jlia:h\n\nCourt answered the qu\"stion referred to it in it'I favour against the asscssce company. On appeal by certificate the appeliant contended :\n\n(I) That th.e High Court could not go into the matter of business connection between the two companies when such a question was never raised or in issue at any earlier stage;\n\n(2) That the High Court was wrong in founding the tax liability of the .asses&ee company on the basis of the alleged business connection. Its finding or view in that regard is wholly erroneous.\n\n(3) That even assuming that the High Court was right in its view of basing the tax liability of the assessee company on the alleged\n\nu:siness connection, it failed to examine the questioli of apport1omnent under a. 42(3) of the Act.\n\n(4) That apportionment under s. 42(3) and determination of the\n\ntax liability of the assessee company in pursuance thereof could not be more than the liability to pay tax on 5% of the totai technical fee as found by the Income-tax Officer and upheld by the Tribunal, HELD : ( 1) The technical service fee received by the assessee company fron1 the Indian company during the accounting year relevant to the assessment year 1957-58 did not accrue or arise in India. Since 5% of the technical service fee was brought to tax by the I.T.O. and no a.ppeal was filed against if on beh:ilf of the assessee compa-ny, the technical fee in excess of 5% was not taxable.\n\n[484 B-D]\n\n(2) The High Court did not keep in view the distinction between the concept of actual accrual and the notion of deemed accrual evidenced from s. 4(1)(c), & s. 42 but mixed the one with the other while answering the reference in question.\n\nThe income assessable to income tax u/s. 4(l)(c) is of two kinds viz. (1) accruing or arising in the taxable territories and (ii) deemed to accrue or arise to the non-resident in the taxable territory.\n\nThe concept of actual accrual or arising of income in the taxable territories, although not depending upon the receipt of the income in the taxable territories is quite distinct and apart from the notion of deemed accrual or arising of the income. [481 A-Bl\n\n(3) The High Court was wrong in entertaining a! the reference stage on the basis of the alleged general and compendiom nature of the question referred to it by the Tribunal the iiCw poi_nt based upon the theory of business connection. which was neither raised before the Tribunal nor considered by it; nor did it arise on tho findings of fact recorded by it. [481 F-0]\n\nCommissioner of lncon1e Tax, Bombay v. Scfndia Steani NaviRa.lion Co. Ltd. 42 ITR 589, followed.\n\n(4) The High Court went wrong in its.approach to the question raised before it and did not quite correctly appreciate the scope and applicability of s. 42 of the Act. On a plain reading of sub-sections (1) and (3) of section 42, it would appear that income accruing or arising from any business connection in the taxable territories-even thoua:h tho income rii:ay accrue or arise outside the t:uable territories-will be deemed to be income accrui~ or arising in such territory, provided operations in connection with such business, either <Jll or a part, are carried out in the taxable territory. If all such operations are carried out in the taxable territory, su_b-section ( 1) would apply and the entire income accruing or arising outside the taxable territory but as a result of the operations in connection with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations nre not carried out in the taxable territories, the profits and gains of the businCss deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.\n\nThus comes in the question of apportionment llndr subsection (3) of s. 42. [482 C-F[\n\nCo1nmissioner nf lnco1ne Tax. P1111iab v. R. D. Aggarwal & Co. and Anr. 56 ITR 20, referred to.\n\n(5) In the instant case the High Court was wroni in its view that activities of the foreign personnel lent or deputed by the American company a!11ounted to a business activity carried on by that company in the taxable terntory. The service rendered by the American company in that connection was wholly and\n\n' I\n\nsolely rendered in the foreign territory;, No part of the activity or operation could be said to have beep. carried on by-the American company in 'India, even if there was any business connection between the earning of the irico1ne in the shape of the technical fee by the American company and the affairs. of the Indian company. In the absence of such a sustainable finding, the provisions of s. 42 either of sub-section (1) or of sub-section (3)' .were not attracted at all.\n\nIn order to rope in the income of a non-resident under the deeming provision' it must be shown by the Department that some of the operations were carried out in India in respect of which the income is sought to be assessed. [483 E-H]\n\nConunissioner of lncotne Tax, Madras I v. Carborandun1 Co. 92 ITR 411 ,._, overruled. ' C.I.T. Bon1bay City I. v. Tata Che1nicals Ltd. 94 ITR 85, appr )Ved.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 89 of 1975.\n\n(From the Judgment and Order dated the 4!h May 1973 of the Madras High Court in Tax Case No. 183 of 1967).\n\nN. A. Palkhivala, R. Balasubramanian, !. B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0. C.\n\nMathur, for the appellant.\n\nR. M. Mehta, and R. N. Sachthey, for the respondent.\n\nK. R. Ramamani and !. Ramamurthi, for the Intervener.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J. This is \"'11 appeal by certificate from the decision of the Madras High Court iu a Reference made by the Income-tax Appellate Tribunal under section 66(1) of the . Income Tax Act, 1922-hereinafter referred to as the Act.\n\nM/s Carborandum Co. of the United States of America-hereinafter called the American Company or the Assessee Company, is the appellant. The Central Board of Revenue has declared it a, Company under sectiqn 2(5A) of the Act. It has specialized in the manu\" facture of bonded abrasive and coated abrasive products.\n\nFor the improvement and advancement in the line of its manufacture, it has a Research Wing also.\n\nThe results of the research are incorporated in pamphlets prepared from time to time.\n\nThe Assessee Company e, ntered into an agreement dated June 22,' 1955 with M/s Carborandum Universal Ltd.-hereinaftcr called the Indian company, having its registered office at Madras.\n\nAs per the terms of the agreement the American Company was to render and did render to the India, n Company certain technical and know-how services of the following nature :-\n\n(i) furnishing of technical information and know-how with respect to the manufacture of bonded abrasive and coated abrasive products;\n\n(ii) providing tedhnical management including factory design and lay out, plant and equipment production, purcJiase of materials, manufacturing specifications and. quality. of product; ·\n\n4-502 SCI/77\n\n(iii) furnishing comprehensive technical information of all developments in the manufacture of the special products;\n\n(iv) providing the Indian company with a resident factory manager for starting the plant and superi, ntending\n\nB. its operations during its initial production stages, as also other techmcal personnel necessary for the operation of the plant;\n\n( v) training Indian personinel to replace the foreign technical personnel as quick'ly as possible.\n\nIn lieu of all the services aforesaid, as per the agreement, the Americn company was to receive from the 1ndian company an annual service fee equal to 3 per centum on the net sale proceeds of !he products manufactured by the latter each year.\n\nDuring the year of account relevant to the assessment year 1957- 58 the assessee company received a sum of Rs. 95,762/- from the Indian company as its service fee.\n\nA good slab of it was deducted at source by the Indian company on account of income-tax and supertax payable .on \\he said sum. The American company filed a Return of income for the year in question with an application for refund of the entire tax deducted at source. The Income-tax Officer took the view in his assessment order that 5 % of the technical fee paid to the American company was earned by it in India and Qnly that small amount was assessable to income-tax.\n\nConsequently, he directed the refund of a major J\\(lrtion of the tax dedqs:ted at source to the assessee company.\n\nThe Commissioner of Income-tax in exercise of his power under section 338 of the Act revised the order of the Income-tax Officer a, nd took the view that at least 7 5 % of the technical fee earned by the assessee company during the year of account 'had accured or arisen in India.\n\nIn the main, the basis of his order was that even though the tehnical information was supplied by the assessee company from outside India, the information received by the Indian company was put to use only in the taxable territory and the technical fee paid by it was mainly on account of such use.\n\nThe Commissioner was also of the view that the technical personnel furnished by the assessee company to the Indian company although worked under the control of and was paid for by the latter, the situs of the services so rendered was in India Treating the technical fee in the nature of royalty paid, it directed the Income-tax Officer to revise the assessment on the basis that 75% of it should be taken as income accruing or arising in India to the assessee company.\n\nThe Ainerican company went up in appeal to the Appellate Tribunal from tlae revisional order of the CommissiQner. The Tribunal set aside the said order and restored that of the Income-tax Officer, even though it seems to be of the view that even 5 % of the technical fee could not be taken as income of the assessee company taxable under the Act.\n\nBut since the assessee company had not gone in appeal because of the smallness of the amount of tax payable on the basis of 5 % , the Tribunal was obliged to maintain the order of the Income-tax Officer.\n\nThe Tribunal took some new materials into consideration at the A appellate stage in order to ascertain the true nature of the service rendered by the American company to the Indian compa, ny as per - the terms of the agreement and the place of rendering such service.\n\nThe findings of the Tribunal are :\n\n(1) The American company rendered service to the Indian\n\ncompa, ny for the starting of the factory in India in the B shape of examination of the factory design and lay i out prepared by the latter and sending its advice by post.\n\nThese services were not proved to have been rendered in India.\n\n(2) The pamphlets and bulletins incorporating the results of research made by the American company were c also furnished to the Indian company by post and\n\nthu~ the said service was also rendered outside India. ,,; .\n\n(3) That the services of the foreign technical personnel were made available to the Indian company by the American company outside the country.\n\nThe former employed such personnel in India on the basis of the various agreements of employment entered between D the Indian company and such personnel. They were the employees of the Indian company under its control for their day-today working.\n\n(4) The training of the Indian personnel directly by the employees of the assessee compa.riy was unparted outside India.\n\nThe Tribu!!al did not agree with the views of the Commissioner that E the payment of the technical fee of 3 % was dependent upon the use of the information in India or on the volume and extent of such use.\n\nThe use of the technical assistance and know-'how given by the American Company and made use of by the Indian Company in the taxable territory could not make the former liable to payment of income tax on the amount of technical fee received by it nor was it any royalty.\n\nF A new stand taken before the Tribunal on behalf of the Revenue that the asse'ssee company must be deemed to be working in conjunction with the Indian company in the manufacture of the products in question was also rejected.\n\nI The Commissioner of Income-tax-the respondent in this appeal, asked for a reference and the Tribunal referred the following question ) of law for the opinion of the High Court : G\n\n~ \"Whether on the facts and in the circumstances of the case, the technical fee in excess of 5 per cent received by the assessee company from the Indian company during the account year relevant to the assessment year 1957-58 has accrued or arisen in India?\"\n\nBefore the High Court on behalf of the Revenue the point of conjunction between the American company and the Indian company in the manufacture of abrasive products was put in the fore-front.\n\nFinding this stand unsustainable in face 0£ the agreement between. the two companies and in absence of any other material in support of it, the High Court rejected this stand outright.\n\nIt, however, folt persuaded to permit the Revenue to change its stand even at the reference stage and to urge that the agreement clearly established a business connection between the two companies; the technical fee received by the assessee company •had accrued or arose from such business connection and hence it was assessable to income tax under sectio, n 4 (I) ( c) read with section 42 of the Act.\n\nThe objection of the assessee company to the entertaimnent of the new point at the reference stage that it did not arise oil! of the Tribunal's order was over-ruled by the High Court on the grou, nd that the question referred was in general terms and comprehensive enough to embrace within its ambit the point of applicability of section 42(1) of the Act to the transactions in questio.n.\n\nUpholding this sta11d taken on behalf of the Revenue the High Court answered the question referred to it in its favour and against the assessee company. Hence this appeal.\n\nMr. N. A. Palkhivala, learned counsel for the appellant company urged the following fou~ points in support of .this appeal :-\n\n( 1) That the High Court could not go into the matter of business connection between the two companies when such a question was never raised or in issue at\n\n(2)\n\n(3)\n\n(4)\n\nany earlier stage.\n\nThat the High Court was wro11g in founding the tax liability of the assessee company on the basis of the alleged business connection.\n\nIts finding or view in that regard is wholly erroneous.\n\nThat even assuming that the High Court was right in its view of basing the tax liability of the assessee company on the alleged business con.nection, it failed to examine the question of apportionment under section 42(3) of the AcL That apportiomnent nuder section 42(3) and determination of the tax liability of the assessee company in pursuance thereof could not be more than the liability to pay tax on 5 % of the total technical fee as found by the Income-tax Officer and upheld by the Tribunal.\n\nCertain other companies have intervened in this appeal and some argument was advanced on their behalf too in support of the main argument of Mr. Palkhivala.\n\nSection 4 ( 1) of the Act provides :-\n\n \"Subject to the provisions of this Act, the total infome of any previous year of any person includes all income, profits and gains from whatever source derived which-\n\n(c} .................................... if such person is not resident in the taxable territories during such year, accrue or aiise or are deemed to accrue or arise to him in the taxable territories durinll such year : \"\n\nj l\n\nCARBORANDUM co. v. C.I.T. (UntwaUa, !.) iii\n\nThe income assessable to income tax, therefore, is of two kinds viz .A\n\n(i) accruing or arising in the taxable territories and (ii) deemed to accrue or arise to the non-resident in the taxable territory.\n\nThe concept of actual accrual or arising of income in the taxable territories, although not dependent upon the receipt of the income in the taxable territories, is quite distinct and apart from the notion of deemed accrual or arising of the income. The High Court does not appear to have kept this distinction in view and mixed the one with the other While B deciding the reference \\n question. Section 42 of the Act concerns itself With a deemed accrual or arising of the income within the taxable territories.\n\nUnder sub-section (1) \"All income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connection in the taxable territories ................. . shall be deemed to be income accruing or arising Within the taxable territories, and where the person entitled to the income, profits or C gains is not resident in the taxable territories, shall be chargeable to income-tax either in his name or in the name of his agent, and in the latter case such agent shall be deemed to be, for all the purposes of this Act, the assessee in respect of such income-tax : \" If the whole of the deemed income can be roped in for the levy of tax under section\n\n(1) of section 42, no question of any apportionment arises. If not, sub-section (3) is attracted. It says :- D\n\n\"In the case of business of which all the operations are not carried out in the taxable territories, the profits and gains of the business deemed under this section to accrue or arise in the taxable territories shall be only such profits and gains\n\nas are reasonably attributable to that part of the operations carried out in the taxable territories.\" E\n\nIn Comissioner of Income-Tax, Bombay v. Scindia Steam Navigation Co. Ltd. (1) it has been pointed out that when a question of law was neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. In the instant case the question of law based upon the theory of business connection was neither raised E before the Tribunal nor considered by it, nor did it arise on the findings of fact recorded by it. The High Court, therefore, was wrong in entertaining this new point at the reference stage on the basis of the allegedly general and compendious nature of the question referred to it by the Tribunal. But we do not propose to rest our judgment only on this technical aspect of the matter as we find that even on merits the assessee company has a good case to succeed before us.\n\nThe High Court agreed with the Tribunal that the technical information furnished by the assessee company by post was a service which could not .be Said to have been rendered in India; putting it to use in India is not relevant as opined by the Commissioner. But fo regard to the fact of the foreign technicians ha\\iing been employed by the H\n\n(I) 42 I.T.R. 589.\n\nlndia, n company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the assessee company.\n\nIn the opinion of the High Court it did amount to some activity or service in India.\n\nThe, n the High Court proceeds to say : \"Therefore, we are of the view that the assessee having rendered at least some services in India which arno_nnts to a business !lCtivity the technical fee should be taken to have accrued through or from its business connection in India.\" Even though, according rtor the High Court, the finding aforesaid was sufficient to rope in the entire receipts of the assessee company as income having accrued or arisen in India as a resnlt of its business connection. it felt obliged to make the apportionment to the extent of 75% because of the apportiomnent so made by the Commissioner. In our judgment the High Court went wrong in its approach to the question raised before it and did not quite correctly appreciate the scope and applicab!ity of section 42 of the Act.\n\nOn a plain reading of sub-sections (1) and (3) of section 42 it would appear that income accruing or arising from any business connection in the taxable territories-even though the. income may accrue or arise outside the taxable territories-will be deemed to be income accruing or arising in such territory provided operations in connection with such business, either all or a part, are carried out in the taxab1e territories.\n\nIf all such operations are carried out in the taxable territories, sub-section ( 1) would apply and the entire income accruing or arising 011tsi~ the taxable territories but as a result of .the operations in coMectiollj with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations are not carried out in the taxable territories the profits and gains of the business deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.\n\nThus comes in the question of apportiomnent nuder sub-section (3) of section 42.\n\nIn Commis•ioner of Income-Tax Punjab v.\n\nB. D. Aggarwal and Co. and another,(') Shah J, as he then was, speaking for this Court said at page 24 :\n\n\"A business connection in section 42 involves a relation between a business carried on by a non-resident which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of these profits or gains.\n\nIt predicates an element of continuit~ between the business of the non-resident and the activity in the taxable territories : a stray or isolated transaction is normally not to be regarded as aJ business connection.\n\nBusiness connection may take several forms: it may include carrying on a part of the main business or activity incidental to the main business of the non-resident through an agent, or it may merely be a relation between the business of th~ nonresident and the activity in the taxable territories, which facilitates or' assists the carrying on of that business.\n\nIn each case the question whether there is a business connection\n\n(!) S6 I.T.R. ,20.\n\nfrom or through which iucome, profits or gains arise or accrue to non-resident must be determined upon the facts and circumstances of the case.\"\n\nThe learned Judge says further :\n\n\"A relation to be a \"business connection\" must be real and intimate, and through or from which income must accrue or arise whether directly or indirectly to the nonresident.\n\nBut it must in all cases be remembered that by section 42 income, profit or gain which accrues or arises to a non-resident outside the taxable territories is sought to be brought within the net of the income-tax law, and not income, profit or gain which accrues or arises or is deemed to accrue or arise within the taxable territories.\n\nIncome received or deemed to be received or accruing or arising or deemed to be accruing or arising within the taxable territories in the previous year is taxable by section 4(1) (a) and ( c) of the Act, whether the person earning is a resident or non-resident. If the agent of a non-resident receives that income or is entitled to receive that income, it may be taxed in the hands of the agent by the machinery provision enacted in section 40 (2). Income not taxable under section 4 of the Act of a non-resident becomes taxable under section 42\n\n(1) if there subsists a connection between the activity in the taxable territories and the business of the non-resident, and\n\ni~ through or from that connection income directly or indirectly arises.\" ·\n\nThe High Court was wrong in its view that activities of the foreign personnel lent or deputed. by the American company amounted to a business activity carried on by that company in the taxable territory.\n\nThe finding of the Tribunal in that regard was specific and clear and:\n\nwas unassailable in the reference in question. The American company has made the services of the foreign personnel available to tho Indian company outside the taxable territory.\n\nThe latter took them as their employees, paid their salary and they worked under the direct control of the Indian company.\n\nThe service rendered by the American company in that connection was wholly and solely rendered in the foreign territory.\n\nEven assuming, however, that there was any business connection between the earning o~ the income in the shape of the technical fee by the American company and the affairs of the Indian company, yet no part of the activity or operation could be said to have been carried on by the American company in India.\n\nAnd in absence of such a sustainable finding by the High Court the provision of section 42, either of sub-section (1) or of sub-section (3), were not attracted at all. The judgment of the High Court under appeal reported in Commissioner of Income-Tax, Madras-I, v. Carborandum Company(') is not correct. It has rightly) been pointed out by', the Bombay High Court in Commissioner of Income-Tax Bombay City I 'V. Tata Chemicals Ltd.(') with referenc~ to the similar or almost\n\n( 9l I.T.R. 411.\n\n94 I.T.R. 85\n\nSUPREME COURT.REPORTS\n\n(1977] 3 S.C.R.\n\nidentical provisions in section 9(1) of the Income-tax Act, 1961 that in order to rope in the income of a non-resident under the deeming provision it must be shown by the Department that some of the operations were carried out in India in respect of which the income is sought to be assessed.\n\nThe finding of fact recorded by the Tribunal being a, gainst the department in that connection the Bombay High Court refused to call for a reference.\n\nFor the reasons stated above we hold that on the facts and in the circumstances of the case the technical service fee received byi the Assessee company from the Indian company during the accounting year relevant to the assessment year 1957-58 did not accm~ or arise in India nor could it be deemed to have accrued or arisen in India.\n\nBut since 5 % of the technical service fee was brought to tax by the\n\nIncOlme Tax Officer and no appeal was filed against it on behalf of the Assessee-Company, we cannot interfere with the addition of thi~ 5 % but it must be held that the technical fee in excess of 5 % was not taxable.\n\nWe accordingly allow the appeal, set aside the judgment of the High Court and answer the question referred by the Tribunal in favour of th~ assessee and against the Revenue.\n\nThe Commissioner will pay the costs of the appeal as also of thel reference to the assessee.\n\nS.R.\n\nAppeal allowed.", "total_entities": 67, "entities": [{"text": "M/S. CARBORANDUM CO", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "M/S. CARBORANDUM CO", "offset_not_found": false}}, {"text": "C.I.T., MADRAS", "label": "RESPONDENT", "start_char": 22, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "C.I.T., MADRAS", "offset_not_found": true}}, {"text": "April 11, 1977", "label": "DATE", "start_char": 37, "end_char": 51, "source": "ner", "metadata": {"in_sentence": "C.I.T., MADRAS April 11, 1977\n\n{P. N. BIIAGWATI, N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 71, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "S. 4(1)(e)", "label": "PROVISION", "start_char": 141, "end_char": 151, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 42", "label": "PROVISION", "start_char": 410, "end_char": 415, "source": "regex", "metadata": {"linked_statute_text": "Distinction between concept of actual accrual and notion on deenied accrual-Reference under lncome-tnx Act, 1922", "statute": "Distinction between concept of actual accrual and notion on deenied accrual-Reference under lncome-tnx Act, 1922"}}, {"text": "s. 2(5.·\\)", "label": "PROVISION", "start_char": 524, "end_char": 534, "source": "regex", "metadata": {"linked_statute_text": "Distinction between concept of actual accrual and notion on deenied accrual-Reference under lncome-tnx Act, 1922", "statute": "Distinction between concept of actual accrual and notion on deenied accrual-Reference under lncome-tnx Act, 1922"}}, {"text": "Jncome Tax Act", "label": "STATUTE", "start_char": 538, "end_char": 552, "source": "regex", "metadata": {}}, {"text": "Carborandum UniversaJ Ltd.", "label": "ORG", "start_char": 592, "end_char": 618, "source": "ner", "metadata": {"in_sentence": "The appellant a foreign company \\vithin the Il1eaning of s. 2(5.·\\) of Jncome Tax Act, entered into an agreement with 1\\1/s. Carborandum UniversaJ Ltd., _..,,,- having its registered office at 1\\Iadras on June 22, 1955 and rendered certain technical and knowhow services."}}, {"text": "India", "label": "GPE", "start_char": 1462, "end_char": 1467, "source": "ner", "metadata": {"in_sentence": "The income tax officer took the view in his assessment order that sc;::, of the technical fee p3i<l to the American company was earned by it in India and only that small ..amount wns assessable to income-tax and directed the refun(J of rnajr; r portion of the tax deducted at sou\"rce to the assessee company."}}, {"text": "s. 33B", "label": "PROVISION", "start_char": 1704, "end_char": 1710, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 3443, "end_char": 3450, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 3823, "end_char": 3828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42(3)", "label": "PROVISION", "start_char": 4722, "end_char": 4730, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)(c)", "label": "PROVISION", "start_char": 5506, "end_char": 5516, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 5520, "end_char": 5525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(l)(c)", "label": "PROVISION", "start_char": 5641, "end_char": 5651, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 6682, "end_char": 6687, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 6750, "end_char": 6760, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 7831, "end_char": 7836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 42", "label": "PROVISION", "start_char": 8653, "end_char": 8658, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 9130, "end_char": 9158, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "N. A. Palkhivala", "label": "OTHER_PERSON", "start_char": 9299, "end_char": 9315, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, R. Balasubramanian, !."}}, {"text": "R. Balasubramanian", "label": "OTHER_PERSON", "start_char": 9317, "end_char": 9335, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, R. Balasubramanian, !."}}, {"text": "B. Dadacha.nji,", "label": "LAWYER", "start_char": 9340, "end_char": 9355, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": "A. C.\n\nMoneses", "label": "LAWYER", "start_char": 9356, "end_char": 9370, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": "A. K. Verma", "label": "LAWYER", "start_char": 9377, "end_char": 9388, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": "C. R. Dua", "label": "LAWYER", "start_char": 9390, "end_char": 9399, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 9401, "end_char": 9416, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": ". C.\n\nMathur", "label": "LAWYER", "start_char": 9422, "end_char": 9434, "source": "ner", "metadata": {"in_sentence": "B. Dadacha.nji, A. C.\n\nMoneses, Mrs. A. K. Verma, C. R. Dua, Ravinder Narain and 0."}}, {"text": "R. M. Mehta", "label": "LAWYER", "start_char": 9456, "end_char": 9467, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta, and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 9473, "end_char": 9487, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta, and R. N. Sachthey, for the respondent."}}, {"text": "K. R. Ramamani", "label": "LAWYER", "start_char": 9510, "end_char": 9524, "source": "ner", "metadata": {"in_sentence": "K. R. Ramamani and !."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 9609, "end_char": 9617, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nUNTWALIA, J. This is \"'11 appeal by certificate from the decision of the Madras High Court iu a Reference made by the Income-tax Appellate Tribunal under section 66(1) of the ."}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 9763, "end_char": 9776, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 9786, "end_char": 9806, "source": "regex", "metadata": {}}, {"text": "Carborandum Co. of the United States of America", "label": "PETITIONER", "start_char": 9848, "end_char": 9895, "source": "ner", "metadata": {"in_sentence": "M/s Carborandum Co. of the United States of America-hereinafter called the American Company or the Assessee Company, is the appellant."}}, {"text": "Central Board of Revenue", "label": "ORG", "start_char": 9983, "end_char": 10007, "source": "ner", "metadata": {"in_sentence": "The Central Board of Revenue has declared it a, Company under sectiqn 2(5A) of the Act."}}, {"text": "June 22,' 1955", "label": "DATE", "start_char": 10397, "end_char": 10411, "source": "ner", "metadata": {"in_sentence": "The Assessee Company e, ntered into an agreement dated June 22,' 1955 with M/s Carborandum Universal Ltd.-hereinaftcr called the Indian company, having its registered office at Madras."}}, {"text": "Carborandum Universal Ltd.-hereinaftcr", "label": "ORG", "start_char": 10421, "end_char": 10459, "source": "ner", "metadata": {"in_sentence": "The Assessee Company e, ntered into an agreement dated June 22,' 1955 with M/s Carborandum Universal Ltd.-hereinaftcr called the Indian company, having its registered office at Madras."}}, {"text": "Madras", "label": "GPE", "start_char": 10519, "end_char": 10525, "source": "ner", "metadata": {"in_sentence": "The Assessee Company e, ntered into an agreement dated June 22,' 1955 with M/s Carborandum Universal Ltd.-hereinaftcr called the Indian company, having its registered office at Madras."}}, {"text": "section 338", "label": "PROVISION", "start_char": 12560, "end_char": 12571, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 17341, "end_char": 17351, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42(1)", "label": "PROVISION", "start_char": 17695, "end_char": 17708, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42(3)", "label": "PROVISION", "start_char": 18646, "end_char": 18659, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42(3)", "label": "PROVISION", "start_char": 18696, "end_char": 18709, "source": "regex", "metadata": {"statute": null}}, {"text": "Palkhivala", "label": "OTHER_PERSON", "start_char": 19085, "end_char": 19095, "source": "ner", "metadata": {"in_sentence": "Certain other companies have intervened in this appeal and some argument was advanced on their behalf too in support of the main argument of Mr. Palkhivala."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 19098, "end_char": 19107, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 20179, "end_char": 20189, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 20990, "end_char": 21000, "source": "regex", "metadata": {"statute": null}}, {"text": "lndia", "label": "WITNESS", "start_char": 22701, "end_char": 22706, "source": "ner", "metadata": {"in_sentence": "lndia, n company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the assessee company."}}, {"text": "section 42", "label": "PROVISION", "start_char": 23732, "end_char": 23742, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 23806, "end_char": 23816, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 24890, "end_char": 24900, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 24983, "end_char": 24987, "source": "ner", "metadata": {"in_sentence": "In Commis•ioner of Income-Tax Punjab v.\n\nB. D. Aggarwal and Co. and another,(') Shah J, as he then was, speaking for this Court said at page 24 :\n\n\"A business connection in section 42 involves a relation between a business carried on by a non-resident which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of these profits or gains."}}, {"text": "section 42", "label": "PROVISION", "start_char": 25076, "end_char": 25086, "source": "regex", "metadata": {"statute": null}}, {"text": "S6", "label": "PROVISION", "start_char": 25963, "end_char": 25965, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 26381, "end_char": 26391, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 26837, "end_char": 26849, "source": "regex", "metadata": {"statute": null}}, {"text": "section 40", "label": "PROVISION", "start_char": 27104, "end_char": 27114, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 27145, "end_char": 27154, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 27206, "end_char": 27216, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 28511, "end_char": 28521, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9(1)", "label": "PROVISION", "start_char": 29003, "end_char": 29015, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 29023, "end_char": 29043, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 29372, "end_char": 29389, "source": "ner", "metadata": {"in_sentence": "The finding of fact recorded by the Tribunal being a, gainst the department in that connection the Bombay High Court refused to call for a reference."}}]}
{"document_id": "1977_3_485_488_EN", "year": 1977, "text": "BRAHMAN AND v.\n\nSMT. KAUSHALYA DEVI & ANR.\n\nApril 11, 1977\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J\n\nEviction on the ground of arrears of rent-Tenant due to strained relations B deposits r, ent in the Court-Whether such deposit shall be deemed that the rent\n\nhas been duly paid-United Provirices' (Temporary) Control of Rent and Evie~ tion Act 1947. S. 3(l)(a) rlw. s. 7-C(v) and (6) interpretation of.\n\nSection 3(1)(a) of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947, permits ejectment on the ground of arrears of rent when the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him: of a notice of demand. Section 7-C(l) enables deposits of rent to be made when a landlord C refuses to accept 'any rent lawfully paid to him by a tenant ands. 7C(6) enjoins that \"in any case where a deposit has been made as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to th.e landlord.\"\n\nThe appellanttenant had extremely strained relations with his landlady leading to criminal cases. He deposited the rent payable by him in the court regularly. The triaJ court as well as the High Court, taking the view that such prompt deposits of rent in the court did not satisfy the provisions of s. 3(1) (a) D of the United Provinces (Temporary) Control of Rent and Eviction Act, 1947, since it is not equivalent to payment of rent to the landlord, granted the ejection\n\napplication filed by the resvondentlandlady.\n\nAllowing the appeal by special leave and remanding the case, the court,\n\nHELD: (1) The construction put by the courts below on s. 7C is too narrow and a liberal construction of the.expression \"paid to him by a tenant\" ins. 7C (I) is necessary. [ 487 B-D) E\n\n(2) A correct interpretation of s. 7 has to be conditioned by the circums tances prevailing between the parties. In a situation where not merely bitterness and friction but potentially violent terms mar the life of the parties, s. 7.c of the Act has to be read realistically, It is not necessary for the tenant to create a situation of tension and violence by physically giving the rent into the hands of the landlord. It is an idle ritual to insist on: a physical tender of payment of rent where the circumstances make it impracticable. But harassing the landlOrd by straightaway depositing the rent in court without fulfilment of the conditions F required by s. 7-0(1) is also unwarranted. [486 G-H, 487 A, DJ\n\n(3) The expression \"where the deposit has been made as aforesaid\" ins. 7C\n\n(6) means that the deposit is permissible only when the condition in s. 7C(l) is complied with. If the landlord refuses to accept rent paid to him a deposit jg permissible but payment need not be by physical tender person to person. It can be by money order or through messenger or by sending a notice to the landlord asking him to noniinate_ a bank into which the refits may be regularly paid to the credit of the lllI!dlord.· If the landlord refuses under these circutn- G stances then a court deposit will be the remedy. In the instant case the courts below have not considered whether the circumstances which drove the appellant into the depositing of rent in court were such as eliminated the other possibilities of direct payment. [487 E-F, AJ Observation\n\nJt wauld be a far more Satifctory s_olution of the situation between wo ne_ighQours who have fallen out, if the parties would come to terms at the gentle suggestion of :the conrt below as to w)lat it considers just aided b)'. !he activist H endeavoilrs of counsel, fhan -a niere adjudication of the pdints of fact and law riii.00 Which will leave the pat'ties as bitter neighbours. [The court dirocied the\n\nal'POllate court to take the initiative in the matter With a caution to be 1otal!y non-aligned in the process.] [488 A-BJ\n\nCIVIL APPELLATE JURISDCTION : Civil Appeal No. 711 of 1976.\n\n(Appea'l by Special Leave from the Judgment and Order dated the 28-4-1976 of the Allahabad High Court in Second Appeal No. 1719 of 1972)\n\nYogeshwar Prasad, Miss Rani Arora and Meera Bali, for the B appellant.\n\nS. L. Bhatia a1nd H. K. Puri, for respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J. The defendant-tenant is the appellant and the appeal is by special leave.\n\nThe landlord sued for eiectment on the ground of arrears of rent as provided in s. 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, !947. Section 3(1)\n\n(a) states, among one of the grounds of eviction,\n\n\"that the tenant is in arrears, of rent for more than three months and has failed to pay the same to the la, ndlord within one month of the service upon him of a notice of demand.\"\n\nIn the present case, the complaint of the plaintiff was that the rent was , not paid but was deposited into court regularly.\n\nThe trial court as well as the High Court took the view that such prompt deposits of rent into court did not satisfy the provisions of s. 3 ( 1 )(a) since it is not equivalent to payment of rent to the landlord. Counsel for the appellant c0ntends thats. 7-C(6) of the Act strikes a different note.\n\nIt reads :\n\n\"In any case where a deposit has been made, as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord. (emphasis supplied)\"\n\nS. 7-C( 1) enables deposits of rent to be made when a landlord refuses to accept any rent lawfully paid to him by a tenant.\n\nIn the present case the facts are glaring.\n\nThe relations betweein the parties appears to be. extremely strained and they are living in adjacent premises.\n\nThere was a criminal case by the tenant against the landlord as early as 1969 for offences under ss. 323, 504, 506, 352, 354 and\n\n452 I.P.C.\n\nThe case ended in an acquittal but the relations did not improve. Even now there is a pending prosecution by the tenant of the landlord for offences of a serious nature.\n\nIt. is common ground that not merely bitterness and friction but potentially violent terms mar the life of these parties.\n\nIn such a situation s. 7-C of the Act has to be read realistically. It is not necessary for the tenant to create a situation of tension and violence by physically offering the rent into the hands of the landlord..\n\nWe are satisfied that a correct interpretation of s. 7 has to be concjitioned by the circumstances prevailing between the parties. In the case we are concerned With, the relations between the parties being very estranged it, is an idle\n\nBRAHMANAND v. KAUSHALYA DEVI (Krishna Iyer,!.) 487\n\nritual to insist on a physical tender of payment of the rent where the circumstances make it impractical aud, therefor, subject to what we have said later, prima facie, s. 7-C{l) is attracted and in such cases s. 7-C( 6) makes court deposit equivalent to payment by the tenant to the landlord.\n\nOf course, in the absence of special and adequate grounds the tenant cannot drive the landlord to collect his re, nt every time through the court with all the attendant inconvenience and expense.\n\nWe consider the construction put by the courts below on s. 7-C too narrow. The High Court has proceeded on the footing that a deposit under s. 7-C can be made only if the landlord refuses to accept the rent tendered to him or, if there is any dispute as to the person who is actually entitled to receive the rent. \"Nqne of the conditions existed in the instant case ... and the plaintiff had asked the defendant 11ot to deposit the rent in court but to pay her the same.\n\nThe defendant was accordingly required to pay the rent to her, not to deposit the same in court.\n\nThe deposit, accordingly, could , not constitute payment of rent to the plaintiff and the defendant, consequently, was in arrears of rent. .. \".\n\nAs we have earlier pointed out, a liberal construction of the expression 'paid to him by a tenant' in s. 7-C ( 1) is pecessary.\n\nPhysically offering payment when the relations between the parties are strained is to ask for trouble and be impractical.\n\nBut harassing the landlord by straightway depositing the rent in court without fulfilment of the conditions required by s. 7-C(l) is also 11nwarranted.\n\nSection 7-C(6) by using the expression 'where the deposit has been made as aforesaid' takes us back to s. 7-C(l). That is to say, the deposit is permissible only when the condition in s. 7-C(l) is complied with.\n\nIf the landlord refuses to accept rent paid to him a deposit is permissible. But payment need not be by physical tender, person to persqn.\n\nIt can be by money order, or through messenger or by sending a notice to the landlord asking him to nominate a bank into which the rents may be regularly paid to the credit of the landlord. If the landlord refuses under these circumstances, then a court deposit will be the remedy.\n\nIn the present case, on account of the bad blood between the parties a physical tender of the rent is ruled out.\n\nAt the same time the courts below have not considered Whether the circumstances which drove the appellant into depositing the rent in court were such as eliminated the other possibilities of direct payment we have indicated.\n\nIt is therefore fair to set aside the finding of the courts below and remand the case to the lower appellate court (which is the final court of fact under ordinary circumstances) to ascertain whether any of the alternatives we have indicated, or may otherwise be made out by the tenant as equivalent to payment of rent, i~ present in the case. If no such circumstance is made out by the tenant justifying deposit of rent in court, the decree for eviction will stand.\n\nOtherwise, the petition for eviction will be dismissed.\n\nIt may well be that having regard to the fact that the respondent, the landlady belonging to the weaker sex, has necessarily to live as adjacent occupant of the appellant, a fairly affluent doctor, and taking note of the fact that the relations between the parties are so embittered as to lead to criminal cases, it may be furtherance of justice if the appellate court tries to settle the dispute without taking sides.\n\nIf the parties are able to come to terms at the gentle suggestion of the court as to what it considers just, aided by the activist endeavours of counsel, it would be a far more satisfactory solution of the situation between two neighbours who have fa!le1n out than a bare adjudication of the points of fact and law raised which will leave the pa.rties as bitter neighbours.\n\nWe therefore think it proper to direct the appellate court to take the initiative in the matter but caution it to be totally non-aligned in the process. ·\n\nWith these observations we allow the appeal and remand the case to the lower appellate court. Parties will bear their own costs upto now incurred.\n\ns.:a.\n\nAppeal allowed.", "total_entities": 44, "entities": [{"text": "BRAHMAN AND", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "BRAHMANAND", "offset_not_found": false}}, {"text": "KAUSHALYA DEVI & ANR", "label": "RESPONDENT", "start_char": 21, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "KAUSHALYA DEVI & ANR", "offset_not_found": false}}, {"text": "April 11, 1977", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "April 11, 1977\n\n[V. R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J\n\nEviction on the ground of arrears of rent-Tenant due to strained relations B deposits r, ent in the Court-Whether such deposit shall be deemed that the rent\n\nhas been duly paid-United Provirices' (Temporary) Control of Rent and Evie~ tion Act 1947."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 61, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 81, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 100, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "S. 3(l)(a)", "label": "PROVISION", "start_char": 370, "end_char": 380, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 386, "end_char": 390, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(1)(a)", "label": "PROVISION", "start_char": 424, "end_char": 439, "source": "regex", "metadata": {"statute": null}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 476, "end_char": 514, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 744, "end_char": 753, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 3(1)", "label": "PROVISION", "start_char": 1341, "end_char": 1348, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 1391, "end_char": 1429, "source": "regex", "metadata": {}}, {"text": "s. 7C", "label": "PROVISION", "start_char": 1689, "end_char": 1694, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 1852, "end_char": 1856, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2048, "end_char": 2052, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2481, "end_char": 2485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7C(l)", "label": "PROVISION", "start_char": 2677, "end_char": 2685, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDCTION", "label": "PETITIONER", "start_char": 3901, "end_char": 3928, "source": "ner", "metadata": {"in_sentence": "488 A-BJ\n\nCIVIL APPELLATE JURISDCTION : Civil Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4043, "end_char": 4063, "source": "ner", "metadata": {"in_sentence": "(Appea'l by Special Leave from the Judgment and Order dated the 28-4-1976 of the Allahabad High Court in Second Appeal No."}}, {"text": "Yogeshwar Prasad", "label": "OTHER_PERSON", "start_char": 4100, "end_char": 4116, "source": "ner", "metadata": {"in_sentence": "1719 of 1972)\n\nYogeshwar Prasad, Miss Rani Arora and Meera Bali, for the B appellant."}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 4123, "end_char": 4133, "source": "ner", "metadata": {"in_sentence": "1719 of 1972)\n\nYogeshwar Prasad, Miss Rani Arora and Meera Bali, for the B appellant."}}, {"text": "Meera Bali", "label": "LAWYER", "start_char": 4138, "end_char": 4148, "source": "ner", "metadata": {"in_sentence": "1719 of 1972)\n\nYogeshwar Prasad, Miss Rani Arora and Meera Bali, for the B appellant."}}, {"text": "S. L. Bhatia", "label": "LAWYER", "start_char": 4172, "end_char": 4184, "source": "ner", "metadata": {"in_sentence": "S. L. Bhatia a1nd H. K. Puri, for respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 4269, "end_char": 4281, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J. The defendant-tenant is the appellant and the appeal is by special leave.", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4441, "end_char": 4445, "source": "regex", "metadata": {"statute": null}}, {"text": "Control of Rent and Eviction Act", "label": "STATUTE", "start_char": 4482, "end_char": 4514, "source": "regex", "metadata": {}}, {"text": "Section 3(1)", "label": "PROVISION", "start_char": 4522, "end_char": 4534, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5030, "end_char": 5034, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "S. 7", "label": "PROVISION", "start_char": 5369, "end_char": 5373, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "ss. 323, 504, 506, 352, 354 and\n\n452", "label": "PROVISION", "start_char": 5747, "end_char": 5783, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 5784, "end_char": 5789, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6106, "end_char": 6110, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6351, "end_char": 6355, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 6568, "end_char": 6580, "source": "ner", "metadata": {"in_sentence": "In the case we are concerned With, the relations between the parties being very estranged it, is an idle\n\nBRAHMANAND v. KAUSHALYA DEVI (Krishna Iyer,!.)", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6759, "end_char": 6763, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6800, "end_char": 6804, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7138, "end_char": 7142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7222, "end_char": 7226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7900, "end_char": 7904, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8170, "end_char": 8174, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 8203, "end_char": 8212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8306, "end_char": 8310, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8387, "end_char": 8391, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_489_507_EN", "year": 1977, "text": "MADAN LAL LORIA A\n\nASSISTANT CONTROLLER & ORS.\n\nApril 11, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.j B Garnishee Proceedings-Estate Duty A.ct, 1953 (Act 34 of 1953 ), S .. 73(5) r/w. s. 46(5A) of the Income Tax Act, 1922-Scope of.\n\nThe appeUant, a tenant\" in the building situate at No. 13 India Exchri.nge Place, Calcutta and belonging to one Rai Bhupathi Nath Deb Bahadur who died on September 23, 1959, was inducted in as a tenant through a registered lease deed dated 5th March 1960 for a period of thirty one years effective from 18th March 1960 and on a monthly rent of Rs. 1,400/· by nine persons who claimed to be the nephews and nieces of the said Bhupathi Nath Deb.\n\nRespondents Nos. 3 and 4 claiming respectively to be the son and daughter of the deceased Bhupathi Nath, in their capacity as executors of the WiU dated\n\n20th November 1957 said to have been made by the deceased prior to his death filed an account in form No. ED-1, of the properties including the building at 13 India Exchange Place, in respect of which, according to them estate duty was payable on the death of the deceased. The Assistant Controller of Estate Duty, after assessing the principal value of the estate under s. 58 of the Act determined a sum of Rs. 1,40,090/28 as the amount of duty payable by the accountable persons. Being unable to recover the amount, the Assistant Controller of Estate Duty, in view of the fact that the rent payable by the appeilant was a fortiorari an amount which in law belonged to the estate issued a notice to the appellant uls. 73 (5) of the Act r /w section 46(5A) of the Income Tax Act, 1922, pointing out that \"a sum of Rs. lA0,090/20 is due from Tutsi Charan Deb and others on account of estate duty as accountable persons to the estate of late Rai Bhupathi Naith Deb\" and requiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupathi Nath Deb Bahadur\" upto the amount of Rs. 1,40,090/20.\n\nThe appellant on receipt of the notice paid a sum of Rs. 2800 /- being the rent for the months of December 1961 and January 1962. From February 1962 to May 1962, the appellant paid the rent to his lessors on the strength of a notice dated 24th February 1962 from the lessor's attorney to the effect that the Assistant Controller had no jurisdiction to demand from the appellant the rent, since the lessors were not the accountable persons as they were not assessed to estate duty.\n\nNo further payment of rent, therefore was made either to the 1essors or to Revenue; but instead the appeI!ant preferred a claim for refund of Rs. 2800 /- on the ground that this payment had been made by him under a bonafide 1nistake of law. By his order dated 25th March 1964, the Assistant Controller, holding that the appellant had acted in contravention of the notice dated 9th January 1962 issued against him, imposed a penalty of Rs. 3000/- under s. 73(5) of the Estate Duty Act, 1953 r/w. s. 46(1) and required the appellant to pay up the amounts of Rs. 35,000/- and Rs. 3,000/- on or before 6th April 1964.\n\nThe writ petition filed by the appellant challenging the said order was rejected by the Calcutta High Court.\n\nAllowing the appeal by special leave in part, the Court,\n\nHELD: (I) Two conditions must be fulfilled before penalty can be imposed u/s. 46(1) of the Income Tax Act, 1922 : one is that the person on whom penalty is so_ught to be imposed must be assessee and the other __ is tat_ tl!_e assessee must be in default within the tnean1ng of s. 45. Where a garn1shee IS required by notice issued under sub-section (SA) of section 46 to pay to the Income Tax Officer so much of the money due or which may become due frOm the garnishee to the assessee or held or which, may sboequently be held by the garnishee for or on account of the assess(; e, aS 1s uffic1ent to pay the amount due by the tax-payer in respect of the arrears of income tax, he does not become an assessee as defined in section 2, sub-section (2). The garnishee merely pa vs the amonnt which is due from him to the assessee. and such payment. is , in .discharge of the debt owed by hhn to th~ ass_, It LS not a paymnt tlie l1aq1!1ty for which is created under any proVISion of the Act. There LS 110 provmon\n\nin. the Act which by. a legal fkti.on makes him an assessee. Unlike s. 226(3 )(x) of 1961 Act,, there ts ll? pov1s1on 1n the 1922 Act that the garnishee who fails to comply with_ the nottce issued under sub-s. (SA) of s. 46 shall be deemed to be an assessee in default. No pealty, .therefore, can be imposed on a garnishee ll1; lder sub-s. ( 1) of s. 46, even if he fails to comply with the notice issued to him under sub-s. SA of s. 46. [496 G-H, 497 Al\n\n(2) Section 73, sub-sections (I). and (2) of the Estate Duty Act correspond to s. 4S(l) of. the 1922 Act deemmg the accountable person to be in default only on h.1s failure to pay in. accordance with the requisition contained in the notice.\n\nSince s. 73, sub-section (5) by incorporating the provisions of sub sections (1), (lA), (Z), (3), (4), (S), (SA), (6) and (7) of s. 46 of the 1922 Act m?-kes them applicable for the purpose of collection and recovery of estate duty, It ust follow a fqrtiori that penalty cati be imposed on a garnishee, under sect10n 73, sub-sect10n (5) of the Estate Duty Act, 1953 read with section 46, sub-section (1) of the Act of 1922 only, if the garnishee can be said to be an accountable person in default.\n\nThe garnishee cannot be regarded as an accountable person, since section 2, sub-section\n\n(12A) defines 'accountable person' to mean the person accountable for estate duty within the 1neaning of\n\nhe Ac~ and the garnishee does not come within the category of persons specified ln sections 53 and 54 (\\S persons accountable for estate duty. There is also no provision in the Estate Duty Act, 1953, deeming a defaulting garnishee as an accountable person in default by a legal fiction.\n\nIn the instant case the order dated 25th March, 1964, imposing penalty of Rs. 3,000/- on the appellant is outside the power of the Assistant Controller under the Estate Duty Act, 1953. (497 B, D-Hl\n\n(3) The plain effect of section 53, sub-s. (1) read with s. 73, sub-sec. (1) is that when an order of assessment is made not only the accountable person in respect of whom proceeding for assessment has been taken, but also every othe-r accountable person as defined in s. 2(2) and (12A) would be liable to pay the amount of estate duty, limited of course to the assets of the deceased which.he actually received or which, but for his own negligence or default, he might have received. [501 C.H, 502 Al ( 4) The words ''the property passing on the death\", appearing in the ex.pression \"the whole of the estate duty on the property passing on the death\" in subsection (1) of s. 53, according to their plain grammatical construction, indicate that every accountable person would be accountable for the estate duty on the entire property passing or deemed to pass on the death of thi~ deceased. [502 C-Dl\n\n(5) The argument that having regard to the words \"where any property passes\" appearing in the opening part of the sub-section, coupled with the words \"such property so passes\", and \"the property so passing\", appearing in the respective sub-clauses, the word \"the\" appearing before the words \"property passing on the death\" must again refer to the same property which is referred to in the respective sub-clauses (a), (b) or (c), as .the case may be is not \"'ell founded, for it ignores one very important circumstance namely, that each of the persons. mentioned in sub clauses (a), (b) and (c) is rendered accountable for the whole of the estate duty not merely \"on the property so passing\", but on \"the property passing on the death\". [502 D-Fl\n\n(6) Where the legislature wanted to refer to the specific property passing on the death of the deceased described in the opening part of the sub-section, the legislature used the words \"such property so passes\" and \"the property so passing\" in the sub-clauses (a), (b) and (c), but while imposing accountability for the estate duty the legislature made a deliberate departl\\t\"e and instead of the words \"the proPerty so passing\", which were familiar coinage, it used the words\n\n~'the property passing on the death\". This highly significant departure in phraseology clearly indicates that the legislative intent was that each of the persons mentioned in sub-clauses (a), (b) and (c) should be accoun, table for the estate duty on the entire property passing on the death. It was for this reason that the Hability of each of these persons had to be limited to \"the assets of the decease.d which he actually received or which, but for his own neglect or default, he might have received\". If the liability of each of these persons was only to the extent of the estate duty on the particular property falling within the respective sub- -clauses,_ thre .was need for limitipg' it. the MSets of the deceased which such person received or ought to have received. (502 F-H, S03 Al\n\nJ •\n\nM. L. LOH!A V. ASSTT. CONTROLLER 491\n\n( 7) The possibility that an anomaly may arise is only a factor to be taken A into account by the court where two interpretations are possible, but where the meaning of a statutory provision is plain, it cannot alter such meaning. Though the trustee of an insurance policy taken out by the deceac:; ed uiider the Married Women's Property Act, 1874 would fall within sub-clause (b) and hence become accountable for the estate Quty on the entire property passing on the death, he would not be liable to pay the estate duty out of the policy monies, since the estate of the deceased would have no interest in the policy monies and the policy monies would not form part of the estate of the deceased and his liability as an accountable persori would be limited only to the assets of the deceased which B he has actually received or which he ought to have received. [503 C-D]\n\n(8) Sub-section (5) of s. 53 merely emphasises the principle of joint and several liability where two or more persons are a-ccountable for estate duty in respect of any property passing on the death of the deceased, reg&rdJess whether they are so accountable in the same capacity or in different capacities. It would be reading much more in sub-section (5) than what its language. warrants to say that this sub-section is consistent only with an accountable person mentioned in sub-clause (a), (b) or (c) of sub-section (I) being accountable only in respect c of estate duty on the particular property passing to him on the death of the deceased.\n\n(9) The object of sub-setion (5) of s. 53 is to provide that every accountable person shall be liable not only jointly with other accountable persons, but also severally for estate duty in respect of any and every property passing on the death of the deceased. On a proper construction of sub-section (1) of s. 53,\n\nre3.d in the context of the other provisions of the Act, each of the persons mentioned in sub-clauses (a), (b) and ( c) would be accountable for the estate D duty on the entire property passing on the eath and his accountability qua the Revenue would not be limited only to the estate:; duty on the particular property passing to him. [503 F, 503 C-DJ\n\n(10) In the instant case, the lessors were clearly accountable persons since they admittedly took possession of and in.termeddled with the leased premises which formed part of the estat_e of the deceased. The order of assessment made by the Assistant Controller of Estate Duty was not challenged by the appellant in the writ petition, nor was it decared invalid by a superior authority at the E instance of the lessors.\n\nNot even any steps appear to have been taken by the lessors for the purpose of challenging the order of assessment.\n\nThe lessors were in the circumstances, accountab1e for the whole of the estate duty on the entire prQperty. passing on the death of the deceased and hence they were liable to pay the estate duty of Rs. 1,40,0920 /20 limited of course to the extent of the leased premises which constituted the asset of the deceased received by them.\n\n(504 H, 505 A-BJ\n\n(11) Since the rent of the leased premises was payable by the appellant to the lessors under the lease deed and the lessors were liable ito pay the estate duty of Rs. 1,40,090/20 it was competent to the Assistant Controller to issue a notice under section 73. sub-section (5) read with section 46, sub-section (5A) of the Act of 1922 requiring the appeltant to pay the amount of rent due and to he\n\ncome due in respect of the leased premises. [505 C-D]\n\n(12) The notice dated 9th January 1962 was a valid notice ancl the appellant was bound to comply with it and to pay to the Assistant Controller the amount of rent due or to become due in respect of the leased premises. Non-mentioning of the lessors in the notice as the persons to whom the amount of rent was due from the appellant in respect of the leased premises does not render the notice invalid or ineffective. What the notice dated 9th January 1962, in substance and effect required the appellant to do was to pay to the Assistant Contrl1Jler, the amount due or to become due from the appellant to the lessors in respect of the leased premises; that amount could rightly and legitimately be described as amount due to the estate of the deceased so as to be covered bY the terms of the notice. [505 H, 507 DJ\n\n( 13) Questions of fact not raised in the writ petition nor argued before the High Court, oannot be allowed to be agitated for the first time before thi•\n\nCourt. [506 Bl\n\nA _ C.14). In !Jrder that proceeding may be validly ta_ken against a garnishee under section 73, sub-section (5) read with section 46, sub-section (SA), it, is not necessary that the accountable person must be deemed to be in default and hence suCh garnishee proceeding need not be preceded by a notice of demand on the accountable person under sub-section (1)· of section 73~ [506 G-H}\n\nThird Income- Tax Officer, Mangalore v. M. Damadar Bhat, 11 ITR 806, followed.\n\n]Their Lordships expressed their opinion that the view taken ill this decision was not correct for three reasons given by them.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 783 of 1972).\n\n(Appeal by Special Leave from the Judgment and Order dated the 1st December 1969 of the Calcutta High Court in Civil Rule No. 1274 of 1974).\n\nS. C. Majumdar and Mrs. Laxmi Arvind, for the appellant.\n\nG. C. Sharma and P. L. Juneja, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal by special leave raises a short question of law as to the scope of granishee proceeding under section 73, sub-section (5) of the Estate Duty Act, 1953 read with section 46(5A) of the Indian Income-Tax Act, 1922.\n\nA brief narration of the facts giving rise to the appeal would be sufficient to .explain the background against which the question arises for determination in the appeal.\n\nOne Raj Bhupati Nath Dev Bahadur died on 23rd Se)'tember, 1959 leaving considerable movable and immovable properties which included inter alia a building situate at No. 13, India Exchange Place, Calcutta.\n\nRespondents Nos. 3 and 4 claiming respectively to be the son and daughter of the deceased delivered to the Assistant Controller of Estate Duty an account in form ED-1 of the properties in respect of which, according to them, estate duty was payable on the death of the deceased.\n\nThe account was filed by respondents Nos. 3 and 4 in their capacity as executors of the Will dated 20th\n\nbecember, 1957 said to have been made by the deceased prior to his death.\n\nThe Assistant Controller issued notice under section 58, sub-section (2) to respondents Nos. 3 and 4 as accountable per>ons and after hearing them, made an order dated 23rd September, 1960 assessing the principal value of the estate of the deceased and deter- mining a sum qf Rs. 1,40,090.20 as the amount payable as estate duty.\n\nIt appears that the Assistant Controller was not able to recover the amount of estate duty from respondents Nos. 3 and 4, since most of the estate of the deceased consisted of immovable properties which were let out to different tenants and according to respondents Nos. 3 and 4, rent was not being paid to them by the tenants.\n\nOne of the immovable properties left by the deceased, namely, the building situate at No. 13, India Exchange Placei Calcutta was in the possession of the appellant.\n\nAccording to the\n\n~ .....\n\n' ii . .,.\n\nl t\n\nl I\n\nI •\n\nappellant, it had been let out to him by nine persons who were the nephews and nieces of the deceased and who claimed to be the heirs of .the deceased on the basis that the deceased tlied wittlout\n\nmaking any Will and did not leave any widow or son or daughter surviving him.\n\nThe lease given to the appellant by these nine persons, who may for the sake of convenience be hereinafter referred to as the lessors, was under a registered deed dated 5th March, 1960\n\nnd it was a'lease for a period of thirty-one years with effect from 1st March, 1960 carrying rent at the rate of Rs. 1,400/- per month.\n\nSinoe the leased premises-that is how we propose to describe. the building leased to the appellant by the lessors-admittedly belonged to the estate of the deceased, the rent payable by the appellant was a fortiori an amount which in law belonged to the estate and hence the Assistant Controller issued a notice dated 9th January, 1962 to the appellant under section 73, sub-section (5) of the Estate Duty Act. 1953 read with section 46, sub-section (SA) of the Indian Income-Tax Act, 1922 (hereinafter referred to as the Act of 1922) pointing out that \"a sum of Rs. 1,40,090.20 is due from Sim Tulsi Charan Deb and others on account of estate duty as account able persons to the estate of late Rai Bhupati Nath Deb\" and re, quiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupati Nath Deb Bahadur\" upto the amount of Rs. 1,40,090.20 as also \"to pay money which may subsequently become due from you to them or which you may subsequently hold for or on account oi them upto the amount of arre-drs still remaining unpaid, forthwith on the money becoming due or being held by you as aforesaid, as such payment is required to meet the amount due by the accountable person in respect of arrears of estate duty''.\n\nIt was stated in the notice that\n\nny payment made by the appellant in compliance with the request contained in the notice would in law be \"deemed ro have been made under the authority of the accountable person\" and the receipt of the Assistant Controller \"will constitute a good and sufficient discharge of his liability to the person to the extent of the amount referred to in the receipt\".\n\nThe appellant, on receipt of the notice, paid the rent for the months of December, 1961 and January 1962 aggregating to Rs. 2,800/- to the Assistant Controller and informed the lessors about the same. The lessors, by their attorney's letter dated 24th February, l 962, however, contended that the notice issued by the Assistant Controller against the appellant was ineffectual, since the lessors had not been assessed to estate duty by the Assistant Controller as accountable persons and the Assistant Controller was, therefore, not competent to require the appellant to pay to him the amount of retlt which was due from the appellant to the lessors and moreover, the notice required the appellant to pay only such amount as was due from the appellant to respondents Nos. 3 and 4 as accountable persons and since the amount of rent was due from the appellatlt to the lessors and not to respondents Nos. 3 and 4, the appellant was not liable to pay the amount of rent in respect of the leased premises. to the Assistant Controller.\n\nThe 3ppellant, acting on this letter of the lessors' attorneys, did not l'W any further rent to the Assistant Controller btlt paid rent for the months frotn Fehroary to May 1962 to the lessors. No further payment of\n\n5-502 SCJ /77 •\n\nrent was thereafter made by the appellant either to the Assistant COntroller or to the lessors.\n\nSince the appellant did not pay any rent to the Assistant Controller for the period subsequent 10 January 1962 in defiance of the notice dated 9th January, l 962, the Assistant Controller issued a notice dated 5th March, 1964 to the appellant requiring him to show cause why penalty in the sum of Rs. 10,000 /- should not be levied for the default committed by him.\n\nThe appellant addressed a letter dated 13th March, 1964 pointing out that the accountable persons mentioned in the notice dared 9th January, 1962 were \"Shri Tulsi Chandra and Others'', that is, respondents Nos. 3 and 4 and the appellant had no concern or connection with these accountable persons nor was any amount due from him to them and hence the notice dated 9th January, 1962 was misconceived.\n\nThe appellant also called upon the Assistant Controller to refund the sum of Rs. 2,800/- paid by him in respect of rent for the months of December 1961 and January 1962 on the !!fOuhd that this payment had been made by him under a bona fide mistake of law. This explanation furnished by the appellant was found unacceptable and the Assistant Controller passed an order dated 25th March, 1964 holding that rent for the months commencing from .March 1962 and ending with March 196'1 aggregating to Rs. 35,000/- had been paid by the appellant to the lessbrs in contravention of the notice dated 9th January, 1962 issued against him and imposing a penalty or Rs. 3,000/- under section 73, ub section (5) of the Estate Duty Act, 1953 read with section 46(1) of the Act of 1922 and requiring the appellant to pay up the amounts of Rs. 35.000/- and Rs. 3,000/- on or before 6th April, 1964.\n\nThe appellant thereupon filed a writ petition in the High Court challenging the validity of the proceedings adopted by the Assistant Controller under section 73(5) of the Estate Duty Act, 1953 read with s. 46(5A) of the Act of 1922 for recovery of the amount of estate duty from the appellant as also the legality of the Order dated 25th March. 1964 imposing penalty of Rs. 3,000/- on the appe'llant.\n\nThe Hioh Court, by a judj!lllent dated 1st December, 1969. rejected the writ petition and hence the present appeal by special leave obtained from this Court.\n\nThere are two questions which arise for determination in this appeal : first. whether the notice dated 9th January, 1962 issued by the Assistant Controller to the appellant was a valid notice under which the appellant was bound to pay the amount or. rent in re\"iect of the leased oremises to the Assistant <Controller, and &eCO!ldly, even if the notice da•ed 9th January, 1962 was a valid notice an<l it ohliated the aonellant to pay the arnount of rent to the Assistant Controller, whether any penalty could be levied on the aooellant for contravention of the terms of the notice. The ftrst question is not free from difficultv but the second is relatively simple and hence it would be convenient to be!!in first with a discussion of the second ouestion.\n\nNow. at the date when the notice dated Qtl1 fanu\"rv. 1962 was issued bv the Assistant Coritro11er. the Act of 19?2 w>< in force and hence the notice was i<sue<l un~P.t\" on 73, sub-section (5) of the Estate Duty Act, 1953 read with section\n\nM. L. LOHIA v. ASSTT. CONT!l.OLtER (Bhagwati, J.) 495\n\n46(SA) of the Act of 1922.\n\nSection 73, sub-section (S) of the A Estate Duty Act, 19S3 provides inter alia that the provisions of sub-sections (1), (lA), (2), (3), (4), (S), (SA), (6) and (7) of section 46 of the Act of 1922 shall apply as if the said provisions were provisions of Estate Duty Act, 19S3 and referred to estate duty and sums imposed by way of penalty or interest under the Estate Duty Act, 19S3 instead of to income-tax and sums imposed by way of penalty or interest under the Act of 1922 and to Controller B of Estate Duty instead of to Income Tax Officer.\n\nSection 46 of the Act of 1922 lays down the mode and time of recovery of incometax and two sub-sections of this section are material, namely, subsections ( 1) and (SA) which read as follows :\n\n\" ( 1) When an assessee is in default in making a payment of income-tax, the Income-tax Officer may in his C discretion direct that, in addition to the amount of the arrears, a sum not exceeding that amount shall be recovered from the assessee by way of penalty.\" and\n\n\"(SA) The Income-tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the assessee at his last address known to D the Income-tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on acconnt of the assessee to pay to the Income-tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the E money as is sufficient to pay the amount due by the taxpayer in respect of arrears of income-tax and penalty or the whole of the money whv\"Il it is equal to or less than that amount.\n\nThe Income-tax Officer may at any time or from time to time amend or revoke any such notice or extend F the time for making any payment in pursuance of the notice.\n\nAny person making any payment in compliance with a notice under this sub-section shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and G £ufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.\n\nAny person discharging any liability to the assessee after receipt of the notice referred to in this sub-section shall be personally liable to the Income-tax Officer to the H extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.\n\nlf the person to whom a notice Wider this snb-section is sent fails to make payment in pursuance tliereof to the Income-tax Officer, further proceeding may be taken by and before the Collector on the footing that the Income-tax Officer's notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub-section (2) of section 46.\n\nWhere a person to whom a notice under this subsection is sent objects to it on the ground that the sum demanded or any part thereof is not due to the assessee or that he does not hold any money for or on account of the assessee, then, nothing contained in this section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, to the Income-tax Officer.\" The penalty under sub-section ( 1) of section 46 can obvious! y be imposed on an assessee only when the assessee is in default in makmg payment of income tax and under section 4S, the assessee would be deemed to be in default when he fails to pay the amount of income tax specified as payable in a notice of demand served, inter aUa, wider section 29 within the time mentioned in the notice of demand or if no time is so mentioned, then on or before the first day of the second month following the date of service of the notice of demand.\n\nThus, two conditions must be fulfilled before penalty can be imposed under section 46, sub-section ( 1) : one is that the person on whom penalty is sought to be imposed must be an assessee\n\nand ihe other is th.at the assessee must be in default within the meaning of section 45. Where a garnishee is required by notice issued uuder sub-section (SA) of section 46 to pay to the Income-tax Officer so much of tbe money due or which may become due from the garnishee to the assessee or held or which may subsequently be held by the garnishee for or on account of the assessee, as is sufficient to pay the amoWit due by the tax payer in respect of the arrears of income tax, he does not become an assessee as defined in section 2, sub-section (2 ). That sub-section defines an assessee to mean a person by whom income tax or any other sum of money is payable under the Act and the amount which the garnishee is required to pay to the Income Tax Officer in virtue of a notice under sub-section (SA) of section 46 is not \"income tax or any other sum of money-payable under this Act\".\n\nThe garnishee merely pays the amount which is due from him to the assessee and such payment is in dischanre of the debt owned by him to the assessee.\n\nIt is not a payment the iiability for which is created Wider any provision of the Act.\n\nThe garnishee l5 thus not an assessee within the meaning of the definition of that tenn in section 2, sub-section (2) nor is there any provision in the Act which by a legal fiction makes him an assessee.\n\nTile Act also does not contain any provision that the garnishee who fails to cotnoly with the notice issued under sub-section (SA) of section 46 shall be deemed to be an assessee in default. It is int.eresting to comoarc the orovisions of the Act of 1922 with the c0rresoonding orovisions of •he Incnme-tax Act, 1961 '(hereinafter referre<l to as the Act of 1961).\n\nClause (x) of sub-section\n\n(3) of section\n\nJ • ..\n\n226 of the Act of 1961 provides in clear and explicit terms that if the garnishee, to whom a notice under sub-section ( 3) is sent, fails to make payment in pursuance thereof to the Income Tax Officer, he shall be deemed to be an assessee in default in respect of the amount specified in the notice.\n\nBut no such provision is to be found in the Act of 1922.\n\nIt is, therefore, obvious that no penalty can be imposed on a garnishee under sub-section (1) of section 46, even if he fails to comply with the notice issued to him under subsection (5A) of section 46. Now the scheme of collection and recovery of estate duty under the Estate Duty Act, 1953 is substantially the same as that under the income-tax law.\n\nSection 73, sub-sections\n\n(1) and (2) of the Estate Duty Act, 1953 correspond to section 45, su!H; ection (1) of the Act of 1922.\n\nThese two sub-sections provide that where any estate duty, penalty or interest is due in consequence of any order passed nuder the Act, the Controller shall serve upon the person accountable or other person liable to pay such estate duty, penalty on interest, a notice of demand in the prescribed form specifying the sum and the time within which it shall be payable and any amount specified as payable in the notice of demand shall be paid within the time, at the place and to the person ment'oned in the notice, or if no time is so mentioned, then on or before the first day of the second month following the date of service of the notice and any person accoun'able failing so to pay shall be deemed to be in default.\n\nThe Estate Duty Act, 1953 also, therefore, contemplates issue of a notice of demand to the accountable person after an order of assessment is made under the Act and it is only when the accountable person fails to pay in accordance with the requisifon con•ained in the notice of demand that he is to be deemed to be in default. Section 73, subsection (5) then incorporates the provisions of sub-sections (1), (lA) (2), (3), (4), (5), (5A), (6) and (7) of section 46 and makes them applicable for the purpose of collection and recovery of estate duty. It must follow a fortiori that penalty can be imoooed on a varnishee under section 73, sub-section (5) of the Estate Duty Act, 1953 read with section 46, sub-section (1) of the Act of 1922 onlv if the garnishee can be said to be an accountable person in default.\n\nBut, for like reason as those discussed while dealing with the provisions of the Act of 1922, the garnishee cannot be regarded as an accountable person, since section. 2, sub-section (12A) defines 'acconntable person' to mean the person accountable for esta•e dutv within the meaning of the Act and the garnishee does not come w'thin the category of persons specified in sections 53 and 54 as persons accountable for estate duty.\n\nThere is also no provision in the Es'ate Duty Act, 1953 deeming a defaulting garnishee as an acconntable person in default bv a legal fiction.\n\nIt is. therefore, difficult to see how an order imposing penalty could be passed against the appellant. even if the not'ce dated 9th January, 1962 was a valid notice under which the annellant was bound to pay the amount of rent in respect of the lea<ed premi<e< to the Assistant Controller and he failed to tin so.\n\nThe orrler <lated 25th March. 1964 imoosing penalty of Rs. 3.000/- on the aooelhnt mnst therefore. be held to be outside tlie power of •be Ass'stant Contrnlle; under the Estate Duty Act, 1953 and it must be quashed and set aside.\n\nI c\n\nThat takes us to the consideration of the first question as to the validity of the notice dated 9th January, 1962. We have already refer· red to the relevant provisions of this _notice, but !t would~ desirable to recapitulate them here.\n\nThe notice starts with the recital of the fact that a sum of Rs. 1,40,090.20 is due from respondents Nos. 3 a!ild 4 on account of est11te duty \"as accountable persons to the estate of late I!hupati Nath Deb Bahadur\". This recital states very clearly that the amount of Rs. 1,40,090.20 is due on account of estate duty payable on the d.eath of the deceased. Then it goes on to rnqwre the appellant to pay to the Assistant .Controller the amount which is due or mav become due from him to the estate of the deceased or which is held or may subsequently be held by him for or on account ot the estate of the deceased upto the amount of Rs. 1,40,090.20. Here the amount which the appeUant is called upon to pay to the Assistant Controller is the amount due or to become due to the estate of the\n\ndeceased. The purpose for which such amount is required to be pam is to meet \"the amount due by the a, c<:ountable person in respect of the a, rrears of estate duty\" and the appella. nt is intimated that any\n\nayment made by him in compliance wih. the notice would in law be deemed to have been made under the authority of the accountable person\" and the receipt of the Assistant Controller would constitute good and sufficient discharge of the liability of the appellant ''to \\he accountable person.\" The argument of the appellant was that the words \"accountable person\" here in the context meant respondents Nos. 3 and 4 and since the amount of rent was payable by him to the\n\nlsors and not to respondents Nos. 3 and 4, the notice was inoperative alld did not obligate him to pay the amou.nt of rent to the Assistant Controller.\n\nThis a.rgument may, at first blush, appear a little attractive, but a close look at the scheme and relevant provisions of the EsU!te Duty Act, 1953 would b.-; sufficient to repel it.\n\nThe Estate Duty Act, 1953 has been enacted in exercise of the legislative power conferred under Entry 87 of List 1 of Seventh Schedule to the Constitution and it provides for levy and co!lecfon of\n\nes(ate duty in. respect of property. The charge of estate duty is imposed by section 5 which provides that in the case of every pers.on dying\n\nafter the c0ll1mencement of the Act, there shall be levied and paid 11pon the principal value of property, settled or not settled which passes on the death of such person, a duty called \"estate duty\" at lbe rate fixed in accordance with sect; on 3 5.\n\nWhat property sh!IU be deemed to pass on the death of a person is laid down in sections 6 to 16 which occur nuder the heading \"Property which is deemed to JY.ISS\".\n\nSections 17 to 20A enacts special provisions relating to transfers to controlled companies and there are certain exceo'ions to the charge of esU!te duty enumerated in sections 21 to 33. The aggregation of property and rates of e.<tate ntv are nrnvidw in sections 34 and 35-. Th<; node of determination of the principal value of the property passing\n\non the death of a osrson is dealt with in sections 36 to 43 and certain deductions and allowances to be made in determining the princ; pal value of the estate are to be found in sections 44 to 50-B. Then follow a catena of sections oroviding fo_r co11ection of estate duty. Section 53 lays down as to who shall be accountable for estate duty and vdlat\n\nshall be the duties and liabilities of such person and it reads as A follows:\n\n\"53 (1) Where any property passes on the death of the deceased-\n\n(a) every legal representative to whom such property so passes for any beneficial interest in possession or in whom any interest in the property so passing is at any time vested,\n\n(b) every trustee, quardian, committee or other person in whom any interest in the property so passing or the management thereof is at any time vested, and\n\n(c) every person in whom any interest in the property 'so\n\np_assing is vested in possession by alienation or other derivative title,\n\nshall be accountable for the whole of the estate duty on tbe property passing on the death but shall not be liable for any duty in excess of the assets of the deceased which he actually received or which, but for his own neglect or D default, he might have received :\n\nx x x\n\n( 3) Every person accountable for estate duty under this section shall, within six months of the death of the deceased, liver to the C.ontroller an account in the prescribed form and verified in tbe prescribed manner of all the properties in respect of whfch estate duty is payable :\n\nProvided that the Controller may extend the period of 'six months aforesaid on such terms which may include payment of interest as may be prescribed.\n\n( 4) Where the person accountable knows of any property which he has not included in his account because he does not know its amount or value,· he may state that such property exists, but he does not know the amount or value thereof a[ld that he undertakes, as soon aS the amount and value are ascertained to bring a supplementary account thereof and to pay both the duty for which he may be liable in respect of such property and any further duty payable by reason thereof for which he may be liable in respect of the property mentioned in the original account.\n\n(5) Where two or more persons are accountable, whether in the same capacity or in different capacities, for estate duty in respect -0f anjl, property passing on the death of the deceased, they 'shall be liable jointly and severally for the whole of the estate duty on the property so passing.\"\n\nThe words 'legal representative' occurring in clanse (a) of sub-section (!) of section 53 are defined in section 2, sub-section (12) to mean:\n\n\"a person who in law represents the estate of a deceased person, and includes-\n\n(i) an executor,\n\n(ii) as regards any obligation under this Act, any person who takes possession of, or intermeddles with, the estate of a deceased person or any part thereof, and\n\n(iii) where the deceased was a coparcener of a Hindu family, the manager for the time being of the family;\"\n\nC Another expression which occurs in section 53 and other provi:; ions of the Act is 'person accountable' or 'accountable person' and that is defined under section 2, sub-section (12A) to mean: ·\n\n\"the person accountable for e'state duty within the meaning of this Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assess ..\n\nD ment of the principal value of the estate of the deceased : \"\n\nThe power to make provisional assessment in advance of regular assessment is conferred under section 57 which reads as follows :\n\n\"57 ( 1) Estate duty shall be due from the date of the death of the deceased, and the Controller may, at any time after the receipt of account delivered under section 53 or section 56, proceed to make in a snmmary manner a provisional assessment of the estate duty. payable by the person delivering the account on the basis of the account so delivered.\n\n(2) Upon a provisional assessment being made under sub-section (!), the person so assessed shall pay to the Controller, or furni'sh security to the satisfaction of the Controller for the .payment of, the estate duty, if any, payable on the provisional assessment, and the Controller shall thereupon grant him a certificate that such duty has been or will be paid or that none is due, as the case may be, in respect of the property mentioned in the certificate.\n\n( 3) After regular assessment has been made under 'section 58 any amount paid towards the provisional assessment made under sub-section (!) shall be deemed to have been paid towards the regular assessment.\n\nx x x x\"\n\nSection 58 provides for the making of regular assessment and confers power on the Controller to assess the principal value of the estate of the deceased and to determine the amount payable as estate duty.\n\nThen there are provisions relating to reopening of assessment, penalty for default or concealment and rectification of mistakes in the assessment.\n\nSection 62 provides inter alia that any person objecting to any valuation made by the Controller, or to any order made by the Controller determining the estate duty payable under section 58 or section 59 or denying his liability to the amount of estate duty payable in respect of any property, may within thirty days of the date of receipt of the notice of demand under section 73, appeal to the Appellate Controller and the Appellate Controller is given the power to dispose of the appeal.\n\nThen a further appeal is provided to the Appellate Tribunal under section 63 followed by a reference to the High Court under section 64 and an appeal to the Supreme Court under section\n\n65. There are certain other provisions following on these sections which are not material for our purpose until we come to section 73 to which we have already referred.\n\nThe last section which is material is section 74 which provides that, subject to the provision of section 19, the estate duty payable in respect of property, movable or immovable, passing on the death of the deceased shall be a first charge on the immovable property so passing, in whomsoever it may vest on his death, after the debts and encumbrances allowable under Part VI of the Act.\n\nThis is broadly the scheme of the Estate Duty Act, 1953 and it is in the light of this scheme that we have to determine the question which arises for consideration in this appeal.\n\nIt is clear from the resume of the provisions of the Estate Duty Act, 1953 which we have given above that under sub-section (3) of section 53 every person accountable for e5tate duty under sub-section\n\n(1) of that section is liable to deliver to the Controller within six months of the death of the deceased an account of all properties in respect of which estate duty is payable on the death of the deceased.\n\nThere may he and in many cases there would be more than one person accountable for estate duty under sub-section (1) of section 53 and the obligation to deliver an account of all the properties in respect of which estate duty is payable would be on each of t]Je persons so accountable.\n\nBut one out of several accountable persons may deliver an account to the Controller under sub-section (3) of section 53 and. that would be sufficient to empower the Controller to proceed under section 57, sub-section (1) to make a provisional assessment of the estate duty payable by such accountable person on the basis of the oaccount so delivered and when such provisional assessment is made, the accountable person \"so asses'sed'' would be liable under sub- - section (2) of section 57 to pay to the Controller\" the estate duty, if any, payable on such provisional assessment.\n\nThe amount of estate duty provisionally assessed would be payable only by the accountable person on whom the provisional assessment is made.\n\nThe Controller would thereafter be entitled under section 58 to make an order of regular assessment assessiM the orincioal value of the estaie of the deceased and determining the amount payable as estate duty. Wilen\n\nan order of assessment is made, not only the accountable person in resoect of whom oroceeding for assessment has been taken, but also every other accountable person would be liable to pay the amount of estMe ilutv, limited of conrse tn \"the assets <'f the deceaseil which lie actually received or which, but for bis own negligence or default, he\n\nSUPREME COURT REPORTS [1977] 3 s.c.rr.\n\nmight have !eceived\".\n\nThat is the plain effect of section 53, subsection (1) read with section 73, sub-section (1). It may be noticed that so far as the estate duty payable on provisional ; issessment is concerned, sub-section (2) of section 57 provides that \"the person so assessed\" shall pay the amount of such estate duty to the Controller, but when we turn to sub-section (1) of section 53 and section 73, sub-section ( 1), we find that the words \"the person so assessed\" are absent in both these provisions and the liability to .pay the amount of estate duty due in consequence of an order of assessment made under the Act is on every \"person accountable\", irrespective whether asses'sment is made on him or not.\n\nBut here a question of some difficulty arises, namely, whether each of the accountable persons in subclauses (a), (b) and (c) in section 53, sub-section (1) is accountable for estate duty on the entire property passing on the death of the dece!(Sed or only for the estate duty on the particular property falling within the respective sub-clauses which passes on the death.\n\nThe difficulty is created on account of the words \"the property passing on the death\"\n\nappearing in . the expression \"the whole\" of the estate duty on the property passing on the death\" in sub-section ( 1) of section 53 These words, according to their plain grammatical construction, would seem to indicate that every accountable person would be accountable for the estate duty on the entire property passing or deemed to pass on death of the deceased.\n\nBut it was argued on behalf of the appellant that having regard to the words \"where any property passes\" appearing in the opening part of the sub-section coupled with the words \"such property so passes\" and \"the property so passing\" appearing in the respective sub-clauses, the word 'the' appearing before the words \"property passing on the death\" must again refer to the same property which is referred to in the respective sub-clause (a), (b) or (c), as the case may be.\n\nThis argument, plausible though it may seem, is not well founded, for it ignores one very important circumstance, namely that each of the persons mentioned in sub-clauses (a), (b) and (c) is rendered accountable for the whole of the estate duty not merelv \"on the property so passing\" but on \"the property passing on the death\". Where the legislature wanted to refer to the specific property passing on the death of the deceased, described in the opening part of the sub-section, the legislature used the words \"such property so passed\" and \"the property so passing\" in sub-clauses (a), (b) and (c), but wMe irnnnsing accountability for the estate duty, the legislature made a deliberate d\"fJ!ll'ture and instead of the words \"the property so passing\"; which were famiFar coinage, it used the words \"the property passing on the death\".\n\nThis departure in phraseology is highly significant and clearly indicates that the legislative intent was that each of the persons mentioned in sub-clauses (a), (b) and (c) should be accountable for the estate dutv on the entlre nronertv nas'sng on the death.\n\nJt ws for this reason that the liability of each of these oersons had to be limited to \"the a\"ets of the deceased which he actually received or which, but for his own neglect or defualt, he might have received\".\n\nIf the liability of each of these per;; on< was onlv to the extent of the e.•tate dutv on the particular nrnn<>rtv fa ll'ng within the resnective sub-clauses, there was no need for limiting it to the assets of the deceased which such per-\n\nM. L. LORIA v. ASSTT. CONTROLLER (Bhagwati, !.) 5 03\n\nson received or ougnt to have received.\n\nThe appellant, however, con- A tended that if this construction of sub-section (lJ ot section 53 were accepted, it would lead to consequences which could hardly have been intended by the legislature. He pointed out by way of an example that a trustee of an insurance policy taken out by the deceased under the Married Women's Property Act, 1874, which policy is exempt fro111 payment ol' estate duty by reason ol the total amount payable thereunder being Rs. 50,000/- or less, would become accountable and consequently B liable to pay, out of the policy monies, the estate duty payable in respect of the free estate of the deceased-to the extent of the whol.e of the policy monies in the hand of the trustee-even though the Married Women's Property Act expressly provides that the estate of the husband is not to have any interest in the policy monies.\n\nIt is not necessary for us to decide whether such an anomaly would arise or not, because the possibility that an anomaly may arise on a parti- C cular construction is only a factor to be taken into account by the court where two iilterpretations are possible, but where the meaning of a statutory provision is plain, it cannot alter such meanipg.\n\nMoreover, i• appears to us prima fade that no such anomaly would arise on the interpretation which we are inclined to accept, because it seems that though the trustee of the insurance policy would fall within subclause (b) apd hence become accountable for the estate duty on the D entire property passsing on the death, he would not be liable to pay the estate duty out of the policy monies, since the estate of the deceased would have no in•erest in the policy monies and the policy mon'e' would not form nart of the estate of the deceased and his liability as an accountable person would be limited only to the assets of the deceased which he has actually received or which he ought to have received. The appellant then relied on the language of sub- E section (5) of section 53 and pointed out that even that sub-section refers to the p<iint and several liability of an accountable person \"in\n\nrespect of any property passing on the death of the deceased\", only to the extent of \"whole of the estate duty on the property so passing\" and urged that if under sub-section ( 1) of section 53 every a.ccountable person were to be accountable for the whole of the estate duty on the entire property passing or deemed to pass on the F death of the deceased, sub-section (5) would be rendered super fluous.\n\nBut we do not think this is a correct way of looking at sub-section (5) because what this section does is merely to emphsise the principle of joint and several liab'lity where two or more persons are accountable for estate duty in respect of any property passmg on the death of the deceased, regardless whether they are so accountable in the same capacity or in different capacities.\n\nIt would be G reading much more in sub-section (5) than what its language warrants to say that this sub-section is consistent only with an accountable person mentioned in sub-clause (a), (b) or (c) of sub-section ( 1) being accountable only in respect of estate duty on the particular J)(Qperty passing to him on the death of the deceased.\n\nThe object of sub-<ection (5) is to parvided that every accountable person shall be liable not only jointly with other accountable persons, but also H severally, for estate duty in respect of anv and everv property passing on the death of the deceased.\n\nSub-section ( 5) does not, therefore, in QUr opinion, militate against the constrilction which we are inclined\n\nto place upon sub-section (1).\n\nIn fact section 76 clearly postulates that an accountable person may have to pay estate duty in respect of a property not passmg to hun and provides for his indemnificauon in such a contingency by saymg that if a person accountable under section 53 pays any part of the estate duty in respect of any property not passing to hun, it shall, where occasion requires, be repaid to him by the trustees or owners of that property. If an accountable person mentioned in sub-clauses (a), (b) or (c) of sub-section (1) were liable for estate duty only in respect of the particular property passing to him, there would be no need for such a provision as section 76, because in such an even there would be no question of payment by an accountable person of estate duty in respect of any property not passing to him.\n\nThe provision for indemnification enacted in section 76 clearly suggests that an accountable person being liable for estate duty on the entire property passing on the death may have to pay estate duty even in respect of a property not passing to him, but in such a case he would be entitled to be rennbursed by the trustees or owners of that property in respect of the amount of estate duty paid by him.\n\nWe are, therefore, of the view that on a proper construction of sub-section ( 1) of section 53, read in the context of the other provisions of the Act, each of the persons mentioned in sub-clauses (a), (b) and (c) would be accountable for the estate duty on the entire property passing on the death and his accountability qua the Revenue would not be limited only to the estate duty on the particular property passing to him.\n\nThough we are taking his view as a matter of construction, we must point out that it would be very harsh indeed if the Revenue were to proceed only against one accountable person for recovery of the whole of the estate duty, leaving out others to whom some property or the other may have passed, because that would drive the accountable. person who is required to pay the estate duty in respect of the prope:rty not passing to him, to adopt proceedings against the owner of that property for recovery of the amount of estate duty so paid by him and that would unnecessarily foster litigation, apart from causing hardship to the accountable person and involving him in considerable waste of time and money.\n\nWe think it would be desirable if the Estate Duty Officer himself apportions the estate duty amongst different accountable persons in accordance with their respective interests in the property and seeks to recover from each accountable person only that part of the estate duty which is payable in respect of the property passing to him. We are told that this is the practice which is at present being followed by the Estate Duty Office and we hope and trust that the Estate Duty Officer will continue to follow the same practice even under the law as interpreted by us.\n\nNow let us consider the position of the lessors in the light of the aforesaid discuss'on of the law.\n\nThe lessors are clearly-accountable persons since they admittedly took possession of and intermeddled with the leased premises which formed part of the estate of the deceased and if their contention is correct-and we must -assume it to be so s'nce that was the case of the appellant-the leased premises passed to tbem\n\n__ ,,,.\n\nfor beneficial interest in possession and in any event interest in the leai>ed premises, became vested in them on the death of the deceased.\n\nThe order of assessment made by the Assistant Controller was not challenged by the appellant in the writ petition nor was it at any time declared invalid by a superior authority at the instance ol the lessors.\n\nNot even any steps appear to have been taken by the lessors for the\n\npurp06e of challenging the order of assessment.\n\nThe order of assessment must, therefore, be taken to be valid for the pnrpose of the pre-\n\n; ent proceedings.\n\nThe lessors were in the circumstances accountable for the whole of the estate duty on the entire property passing on tll.e ·\n\ndeath of the deceased and hence they were liable to pay the estate duty of Rs. 1,40,090.20 limited of course to the extent of the leased premises which constituted the asset of the deceased received by them.\n\nSince the rent of the leased premises was payable by the appellant to the lessors under the lease deed and the lessors were liable to pay the estate duty of Rs. 1,40,090.20, it was competent to the Assistant Con\n\ntrailer to issue a notice under section 73, sub-section (S) read with section 46, sub-section (SA) of the Act of 1922 requiring the appellant to pay the amount of rent due and to become due in respect of the leased premises. Now it is trne tl1at in the notice dated 9th January,\n\n1962, the lessors were not mentioned as t!1e persons to whom t!ie amount of rent was due from the appellant in respect of the leased oremises but that does not render the notice invalid or ineffective. What the notice dated 9th January, 1962 in substance and effect required the appellant to do was to pay to the Assistant Controller the amount due or to become due from the appellant to tlie lessors in respect of the leased premises; that amount could rightly and legitimately be described as amount due to the estate of the deceased so as to be covered by the terms of the notice and hence under the notice the appe1lant was liable to pay the arrears of rent and the amount of fume rent in respect of the lea•ed premises to the Assistant Controller to the extent of Rs. 1,40,090.20. The 11Poellant in fact rightly understood his obligation under the notice dated 9th January. 1962 and paid 2 months rent aggregating to Rs. 2,800/- to the Assistant Controller and it is only tliereafter that he refused to make further payment of rent, presumably with a view to obliPin~ the lessors.\n\nThis was clearly in brP\"ch of the requisition contained in the notice dated 9th January, 1962.\n\nBefore we close, we must refer to one other contention urged on behalf of the appellant, namely, that no notice of demand having been\n\nissued under sect'on 73, sub-section (1) to the lessors, the amount of estate duty, though due in consequence of the order of assessment made by the Assistant Controller, was not payable by the leasors and consequently no notice under section 7q, sub-section (S) read with section 46, sub-section (SA) of the Act of 1922 could be issued against the appellant requiring him to pay the amount of rent due from him to the lessors and the notice dated 9th January, I 962 was accordingly\n\niJ1vaHd.\n\nThe Revenue put forward a two-fold argument in reply !Cl this contention.\n\nThe first answer made bv the Revenue was that this contention wa• at no time raised in the writ petition nor was it urged\n\nl:J<fore the High Court and since it rested on a question of fact as to\n\nwhether notice of demand under section 73, sub-section (1) was served on the lessors before issuing the notice dated 9th January, 1962, it could not be auowea to be raised for tbe lirst time at Ille nearing ot the appeal before us.\n\nThis answer, in our opinion, affords complete refutation to the contention of the appellant.\n\nThe question whether notice of demand was served on the lessors under section 73, subsection ( 1) before issue of the notice dated 9th January, 1962 is essentially a question of fact and if it has not been raised in the writ petiJion, nor argued before the High Court, it cannot be allowed to be agitated for the first time before tnis Court. Secondly it was urged that, m arty event, notice under section 73, sub-section (5) read with section 46, sub-section (5A) of the Act of 1922 could be validly issued against a garnishee without service of notice of demand on the accountable person under sub-section ( 1) of section 73 and hence the notice dated 9th January, 1962 could not be assailed as invalid of the ground that it was not preceded by a notice of demand on the lessors under section 73, sub-section (1).\n\nSuppose for this contention was sought to be drawn from the decision of this Court in Third Income-Tax Officer, Mangalore v. M. Damodar Bhat.(1) Now, this was a decision given with reference to sub-section (3) of section 226 of the Act of 1961 which corresponds to section 46, sub-section (SA) of the Act of 1922 The question which arose for determination was whether action under section (3) could be taken only where the assessee was in default aild this Court held that in a proceeding under section 226, sub-section (3), it was not necessary that the asses see should be in default or should be deemed to qe in default.\n\nThis Court, speaking through Shah, :r., pointed out: \"Section 226, however, provides other methods of recovery and there is no reference in sec'ion 226 (3) to any default on the part of the assessee.\n\nSection 226(3) merely states that the Income-tax Officer may, at any time or from time to time', by notice in writing require any person who holds or may subsequently hold money for or on account of the assessee, to pay to the Income-tax Officer either forthwith so mnch of the money as is sufficient to pay the amount due by the assessee in respect of arrears or the whole of the money when it is equal to or less than that amount.\n\nIn a proceeding under section 226(3) of the new Act, therefore, it is not necessary that the assessee should be in default or should be deemed to be in default and no such condition or limitation is imposed by the language of that sub-section.\" If this decision lays down the correct law on the .subject.....,-and since this is a decision given by oa Bench of three judges of this Court, it must be regarded as binding noon us-it mn<t be hld, while interpreting the corresponding provisions Of sub-sections (1),\n\n(2) and (5) of section 73 Of the Estate Dutv Act, 1953 reatl with section 46, sub-section (5A) of the Act of 1922 that, in order that proceeding mav be validlv taken aoainst a oornishee under sertion 73 sub-section (5) read with section 46, sub-section (5A), it is not necessary that the accountable person must be deemed to be in default and hence such garnishee ptnceeding need nnt be meceifed bv a nr>tice of demand on the accountable person under sub-section ( t) of sectlon 73.\n\nWe must, however, . point ont that we are taking this view because the decision in Third Income-Tax Of/icet, Mangalore v.\n\n(I) 71 I.T.R. 806.\n\n---'-!'\n\nM. L. LOH!A v. ASSTT. CONTROLLER (Bhagwati, !.) 507\n\nDamodar Bhat (supra) binds us, though we do feel that the view taken A in thib decision is not correct.\n\nIn the first place, the decision seems to have overlooked the fact that it is only when a notice of demand is served on the assessee under section 156 and the period for paymen~ of tax mentioned in it expires that the tax becomes payable by the assessee and it is only then the Income-tax Officer can proceed to recover it from the assessee.\n\nThe garnishee proceeding under section 226, subsection (3) is merely one of the modes of recovery prescribed by B law and it is difficult to see how it can be resorted to before the tax has become payable by the assessee.\n\nSecondly, sub-section (3) of section 226 permits garnishee proceeding to be taken for recovery only of 'arrears' and no tax be said to be in arrears until the expiry of the period for payment of tax specified in the notice of demand, and thirdly, the concept of recovery by any mode whatever before the expiry of the time allowed for payment of tax is foreign to the whole c scheme of recovery both under the Act of 1961 and the Act of 1962 But, as we have pointed out, the decision in Third Income Tax Officer, Mangalore v. M. Damodar Bhat (supra) is binding upon us and it afiords a complete answer to the contention of the appellant.\n\nWe must, in the circumstances, hold that the notice dated 9th January, 1962 was a valid notice and the appellant was bound to comply with it and to pay to the Assistant Controller the amount of rent due or to become due in respect of the leased premises.\n\nWe accordingly allow the appeal in part and issue a writ quashing and setting aside the order dated 25th March, 1964 in so far as it imposes penalty of Rs. 3,000/- on the appellant, but so far as the notice dated 9th January, 1962 is concerned, we uphold its validity and reject the appeal. There will be no order as to costs throughout.\n\nS.R.\n\nAppeal partly allowed.", "total_entities": 203, "entities": [{"text": "MADAN LAL LORIA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "MADAN LAL LOHIA", "offset_not_found": false}}, {"text": "A\n\nASSISTANT CONTROLLER & ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "ASSISTANT CONTROLLER & ORS", "offset_not_found": false}}, {"text": "April 11, 1977", "label": "DATE", "start_char": 48, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "April 11, 1977\n\n[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.j B Garnishee Proceedings-Estate Duty A.ct, 1953 (Act 34 of 1953 ), S .. 73(5) r/w. s. 46(5A) of the Income Tax Act, 1922-Scope of."}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 65, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 84, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 46(5A)", "label": "PROVISION", "start_char": 193, "end_char": 202, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 210, "end_char": 230, "source": "regex", "metadata": {}}, {"text": "s. 58", "label": "PROVISION", "start_char": 1212, "end_char": 1217, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "section 46(5A)", "label": "PROVISION", "start_char": 1583, "end_char": 1597, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1605, "end_char": 1625, "source": "regex", "metadata": {}}, {"text": "Tutsi Charan Deb", "label": "RESPONDENT", "start_char": 1682, "end_char": 1698, "source": "ner", "metadata": {"in_sentence": "lA0,090/20 is due from Tutsi Charan Deb and others on account of estate duty as accountable persons to the estate of late Rai Bhupathi Naith Deb\" and requiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupathi Nath Deb Bahadur\" upto the amount of Rs."}}, {"text": "Rai Bhupathi Naith Deb", "label": "OTHER_PERSON", "start_char": 1781, "end_char": 1803, "source": "ner", "metadata": {"in_sentence": "lA0,090/20 is due from Tutsi Charan Deb and others on account of estate duty as accountable persons to the estate of late Rai Bhupathi Naith Deb\" and requiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupathi Nath Deb Bahadur\" upto the amount of Rs.", "canonical_name": "Rai Bhupathi Naith Deb"}}, {"text": "Bhupathi Nath Deb Bahadur", "label": "OTHER_PERSON", "start_char": 1926, "end_char": 1951, "source": "ner", "metadata": {"in_sentence": "lA0,090/20 is due from Tutsi Charan Deb and others on account of estate duty as accountable persons to the estate of late Rai Bhupathi Naith Deb\" and requiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupathi Nath Deb Bahadur\" upto the amount of Rs.", "canonical_name": "Bhupathi Nath Deb Bahadur"}}, {"text": "25th March 1964", "label": "DATE", "start_char": 2732, "end_char": 2747, "source": "ner", "metadata": {"in_sentence": "By his order dated 25th March 1964, the Assistant Controller, holding that the appellant had acted in contravention of the notice dated 9th January 1962 issued against him, imposed a penalty of Rs."}}, {"text": "9th January 1962", "label": "DATE", "start_char": 2849, "end_char": 2865, "source": "ner", "metadata": {"in_sentence": "By his order dated 25th March 1964, the Assistant Controller, holding that the appellant had acted in contravention of the notice dated 9th January 1962 issued against him, imposed a penalty of Rs."}}, {"text": "s. 73(5)", "label": "PROVISION", "start_char": 2924, 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14794, "end_char": 14821, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Raj Bhupati Nath Dev Bahadur", "label": "PETITIONER", "start_char": 15000, "end_char": 15028, "source": "ner", "metadata": {"in_sentence": "One Raj Bhupati Nath Dev Bahadur died on 23rd Se)'tember, 1959 leaving considerable movable and immovable properties which included inter alia a building situate at No."}}, {"text": "23rd Se)'tember, 1959", "label": "DATE", "start_char": 15037, "end_char": 15058, "source": "ner", "metadata": {"in_sentence": "One Raj Bhupati Nath Dev Bahadur died on 23rd Se)'tember, 1959 leaving considerable movable and immovable properties which included inter alia a building situate at No."}}, {"text": "Calcutta", "label": "GPE", "start_char": 15191, "end_char": 15199, "source": "ner", "metadata": {"in_sentence": "13, India Exchange Place, Calcutta."}}, {"text": "20th\n\nbecember, 1957", "label": "DATE", "start_char": 15581, "end_char": 15601, "source": "ner", "metadata": {"in_sentence": "3 and 4 in their capacity as executors of the Will dated 20th\n\nbecember, 1957 said to have been made by the deceased prior to his death."}}, {"text": "section 58", "label": "PROVISION", "start_char": 15707, "end_char": 15717, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-Tax Act, 1922", "statute": "the Indian Income-Tax Act, 1922"}}, {"text": "section 73", "label": "PROVISION", "start_char": 17500, "end_char": 17510, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 17567, "end_char": 17577, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-Tax Act, 1922", "label": "STATUTE", "start_char": 17603, "end_char": 17630, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sim Tulsi Charan Deb", "label": "OTHER_PERSON", "start_char": 17732, "end_char": 17752, "source": "ner", "metadata": {"in_sentence": "1,40,090.20 is due from Sim Tulsi Charan Deb and others on account of estate duty as account able persons to the estate of late Rai Bhupati Nath Deb\" and re, quiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupati Nath Deb Bahadur\" upto the amount of Rs."}}, {"text": "Rai Bhupati Nath Deb", "label": "OTHER_PERSON", "start_char": 17836, "end_char": 17856, "source": "ner", "metadata": {"in_sentence": "1,40,090.20 is due from Sim Tulsi Charan Deb and others on account of estate duty as account able persons to the estate of late Rai Bhupati Nath Deb\" and re, quiring him to pay forthwith \"any amount due from you to or, held by you, for, or on account of the said estate of Bhupati Nath Deb Bahadur\" upto the amount of Rs.", "canonical_name": "Rai Bhupathi Naith Deb"}}, {"text": "Bhupati Nath Deb Bahadur", "label": "OTHER_PERSON", "start_char": 17981, "end_char": 18005, "source": "ner", "metadata": {"in_sentence": "1,40,090.20 is due from Sim 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"metadata": {"in_sentence": "3 a!ild 4 on account of est11te duty \"as accountable persons to the estate of late I!hupati Nath Deb Bahadur\".", "canonical_name": "Bhupathi Nath Deb Bahadur"}}, {"text": "Duty Act, 1953", "label": "STATUTE", "start_char": 34805, "end_char": 34819, "source": "regex", "metadata": {}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 34860, "end_char": 34881, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 34974, "end_char": 34990, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "section 5", "label": "PROVISION", "start_char": 35131, "end_char": 35140, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "sections 6 to 16", "label": "PROVISION", "start_char": 35528, "end_char": 35544, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "Sections 17 to 20A", "label": "PROVISION", "start_char": 35614, "end_char": 35632, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "sections 21 to 33", "label": "PROVISION", "start_char": 35781, "end_char": 35798, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "sections 34 and 35", "label": "PROVISION", "start_char": 35868, "end_char": 35886, "source": "regex", "metadata": {"linked_statute_text": "The Estate Duty Act, 1953", "statute": "The Estate Duty Act, 1953"}}, {"text": "sections 36 to 43", "label": "PROVISION", "start_char": 36006, "end_char": 36023, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 44 to 50", "label": "PROVISION", "start_char": 36142, "end_char": 36159, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 53", "label": "PROVISION", "start_char": 36238, "end_char": 36248, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 38582, "end_char": 38592, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 38608, "end_char": 38617, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 39053, "end_char": 39063, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 39172, "end_char": 39181, "source": "regex", "metadata": {"statute": null}}, {"text": "section 57", "label": "PROVISION", "start_char": 39553, "end_char": 39563, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 39749, "end_char": 39759, "source": "regex", "metadata": {"statute": null}}, {"text": "section 56", "label": "PROVISION", "start_char": 39763, "end_char": 39773, "source": "regex", "metadata": {"statute": null}}, {"text": "section 58", "label": "PROVISION", "start_char": 40457, "end_char": 40467, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 58", "label": "PROVISION", "start_char": 40623, "end_char": 40633, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 62", "label": "PROVISION", "start_char": 40977, "end_char": 40987, "source": "regex", "metadata": {"statute": null}}, {"text": "section 58", "label": "PROVISION", "start_char": 41156, "end_char": 41166, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 41170, "end_char": 41180, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 41347, "end_char": 41357, "source": "regex", "metadata": {"statute": null}}, {"text": "section 63", "label": "PROVISION", "start_char": 41535, "end_char": 41545, "source": "regex", "metadata": {"statute": null}}, {"text": "section 64", "label": "PROVISION", "start_char": 41594, "end_char": 41604, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 41626, "end_char": 41639, "source": "ner", "metadata": {"in_sentence": "Then a further appeal is provided to the Appellate Tribunal under section 63 followed by a reference to the High Court under section 64 and an appeal to the Supreme Court under section\n\n65."}}, {"text": "section\n\n65", "label": "PROVISION", "start_char": 41646, "end_char": 41657, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 41778, "end_char": 41788, "source": "regex", "metadata": {"statute": null}}, {"text": "section 74", "label": "PROVISION", "start_char": 41863, "end_char": 41873, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 41923, "end_char": 41933, "source": "regex", "metadata": {"statute": null}}, {"text": "Part VI of the Act", "label": "STATUTE", "start_char": 42193, "end_char": 42211, "source": "regex", "metadata": {}}, {"text": "This is broadly the scheme of the Estate Duty Act, 1953", "label": "STATUTE", "start_char": 42214, "end_char": 42269, "source": "regex", "metadata": {}}, {"text": "is clear from the resume of the provisions of the Estate Duty Act, 1953", "label": "STATUTE", "start_char": 42398, "end_char": 42469, "source": "regex", "metadata": {}}, {"text": "section 53", "label": "PROVISION", "start_char": 42526, "end_char": 42536, "source": "regex", "metadata": {"linked_statute_text": "It is clear from the resume of the provisions of the Estate Duty Act, 1953", "statute": "It is clear from the resume of the provisions of the Estate Duty Act, 1953"}}, {"text": "section 53", "label": "PROVISION", "start_char": 42926, "end_char": 42936, "source": "regex", "metadata": {"linked_statute_text": "It is clear from the resume of the provisions of the Estate Duty Act, 1953", "statute": "It is clear from the resume of the provisions of the Estate Duty Act, 1953"}}, {"text": "section 53", "label": "PROVISION", "start_char": 43202, "end_char": 43212, "source": "regex", "metadata": {"linked_statute_text": "It is clear from the resume of the provisions of the Estate Duty Act, 1953", "statute": "It is clear from the resume of the provisions of the Estate Duty Act, 1953"}}, {"text": "section 57", "label": "PROVISION", "start_char": 43286, "end_char": 43296, "source": "regex", "metadata": {"linked_statute_text": "It is clear from the resume of the provisions of the Estate Duty Act, 1953", "statute": "It is clear from the resume of the provisions of the Estate Duty Act, 1953"}}, {"text": "section 57", "label": "PROVISION", "start_char": 43572, "end_char": 43582, "source": "regex", "metadata": {"statute": null}}, {"text": "section 58", "label": "PROVISION", "start_char": 43867, "end_char": 43877, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 44472, "end_char": 44482, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 44509, "end_char": 44519, "source": "regex", "metadata": {"statute": null}}, {"text": "section 57", "label": "PROVISION", "start_char": 44656, "end_char": 44666, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 44805, "end_char": 44815, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 44820, "end_char": 44830, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 45270, "end_char": 45280, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 45724, "end_char": 45734, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 48175, "end_char": 48185, "source": "regex", "metadata": {"statute": null}}, {"text": "Property Act, 1874", "label": "STATUTE", "start_char": 48415, "end_char": 48433, "source": "regex", "metadata": {}}, {"text": "section 53", "label": "PROVISION", "start_char": 50061, "end_char": 50071, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 50371, "end_char": 50381, "source": "regex", "metadata": {"statute": null}}, {"text": "section 76", "label": "PROVISION", "start_char": 51726, "end_char": 51736, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 51956, "end_char": 51966, "source": "regex", "metadata": {"statute": null}}, {"text": "section 76", "label": "PROVISION", "start_char": 52362, "end_char": 52372, "source": "regex", "metadata": {"statute": null}}, {"text": "section 76", "label": "PROVISION", "start_char": 52569, "end_char": 52579, "source": "regex", "metadata": {"statute": null}}, {"text": "section 53", "label": "PROVISION", "start_char": 53013, "end_char": 53023, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 56226, "end_char": 56236, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 56264, "end_char": 56274, "source": "regex", "metadata": {"statute": null}}, {"text": "9th January,\n\n1962", "label": "DATE", "start_char": 56460, "end_char": 56478, "source": "ner", "metadata": {"in_sentence": "Now it is trne tl1at in the notice dated 9th January,\n\n1962, the lessors were not mentioned as t!1e persons to whom t!ie amount of rent was due from the appellant in respect of the leased oremises but that does not render the notice invalid or ineffective."}}, {"text": "9th January. 1962", "label": "DATE", "start_char": 57340, "end_char": 57357, "source": "ner", "metadata": {"in_sentence": "The 11Poellant in fact rightly understood his obligation under the notice dated 9th January."}}, {"text": "section 7", "label": "PROVISION", "start_char": 58027, "end_char": 58036, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 58065, "end_char": 58075, "source": "regex", "metadata": {"statute": null}}, {"text": "9th January, I 962", "label": "DATE", "start_char": 58240, "end_char": 58258, "source": "ner", "metadata": {"in_sentence": "Before we close, we must refer to one other contention urged on behalf of the appellant, namely, that no notice of demand having been\n\nissued under sect'on 73, sub-section (1) to the lessors, the amount of estate duty, though due in consequence of the order of assessment made by the Assistant Controller, was not payable by the leasors and consequently no notice under section 7q, sub-section (S) read with section 46, sub-section (SA) of the Act of 1922 could be issued against the appellant requiring him to pay the amount of rent due from him to the lessors and the notice dated 9th January, I 962 was accordingly\n\niJ1vaHd."}}, {"text": "section 73", "label": "PROVISION", "start_char": 58588, "end_char": 58598, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 58954, "end_char": 58964, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 59282, "end_char": 59292, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 59320, "end_char": 59330, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 59500, "end_char": 59510, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 59671, "end_char": 59681, "source": "regex", "metadata": {"statute": null}}, {"text": "section 226", "label": "PROVISION", "start_char": 59914, "end_char": 59925, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46", "label": "PROVISION", "start_char": 59966, "end_char": 59976, "source": "regex", "metadata": {"statute": null}}, {"text": "section 226", "label": "PROVISION", "start_char": 60196, "end_char": 60207, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "OTHER_PERSON", "start_char": 60355, "end_char": 60359, "source": "ner", "metadata": {"in_sentence": "This Court, speaking through Shah, :r., pointed out: \"Section 226, however, provides other methods of recovery and there is no reference in sec'ion 226 (3) to any default on the part of the assessee."}}, {"text": "Section 226", "label": "PROVISION", "start_char": 60380, "end_char": 60391, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 226(3)", "label": "PROVISION", "start_char": 60527, "end_char": 60541, "source": "regex", "metadata": {"statute": null}}, {"text": "section 226(3)", "label": "PROVISION", "start_char": 60983, "end_char": 60997, "source": "regex", "metadata": {"statute": null}}, {"text": "section 73", "label": "PROVISION", "start_char": 61489, "end_char": 61499, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Dutv Act, 1953", "label": "STATUTE", "start_char": 61507, "end_char": 61528, "source": "regex", "metadata": {}}, {"text": "section 46", "label": "PROVISION", "start_char": 61540, "end_char": 61550, "source": "regex", "metadata": {"linked_statute_text": "Of the Estate Dutv Act, 1953", "statute": "Of the Estate Dutv Act, 1953"}}, {"text": "section 46", "label": "PROVISION", "start_char": 61703, "end_char": 61713, "source": "regex", "metadata": {"linked_statute_text": "Of the Estate Dutv Act, 1953", "statute": "Of the Estate Dutv Act, 1953"}}, {"text": "Damodar Bhat", "label": "OTHER_PERSON", "start_char": 62163, "end_char": 62175, "source": "ner", "metadata": {"in_sentence": "507\n\nDamodar Bhat (supra) binds us, though we do feel that the view taken A in thib decision is not correct."}}, {"text": "section 156", "label": "PROVISION", "start_char": 62407, "end_char": 62418, "source": "regex", "metadata": {"linked_statute_text": "Of the Estate Dutv Act, 1953", "statute": "Of the Estate Dutv Act, 1953"}}, {"text": "section 226", "label": "PROVISION", "start_char": 62642, "end_char": 62653, "source": "regex", "metadata": {"statute": null}}, {"text": "section 226", "label": "PROVISION", "start_char": 62863, "end_char": 62874, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_508_512_EN", "year": 1977, "text": "KARNATAKA ELECTRICITY BOARD\n\nGULAM MOHIUDDIN\n\nApril 12, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nElectricity (Supply) Act, 1948-Sec. 79-Statutory Regulations-Whether can be overriden by ad1ninistrative resolutions-Mysore State Electricity Board Recruitment and Pro1notion of employees of the Board Regulation.t 1960-\n\nPassing of SAS exa1nination if necessary for pron1otion.\n\nThe respondent was serving as an Accountant in the Electricity Departrnent of the former State of Hyderabad. On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956, he was allotted to the new State of Mysore with effect from 1st November, 1956.\n\nOption was given to the respondent to continue in the Government service or to opt to the Board.\n\nOn 1st October, 1957, the respondent opted to the service under the Board. and ceased to be an employee of the Government with effect from that date. In 1960, the Board framed Recruitment and Promotion Regulation in exercise .of its powers conferred under s. 79(c) of the Indian Electricity Supply Act, 1948.\n\nThe regulations were subsequently amended on 16.12.1966. The amended regulations prescribed that the posts of Accounts Superintendents were to be filled on the basis of seniority-cum-merit on their having passed SAS examinatioa. In December, 1966, some persons junior to the respondent vtere promoted on their having passed the SAS examination, while promotion- _was denied to the respondent as h~ had not passed the examination. After the respondent; s representations were rejected he filed a Writ Petition. The Single Judge dismissed the Petition. The Divis:on Bench refus\"\"d to throw out the Writ Petition\n\non the ground of delay. It found on consideration of the two resolutions of the Board one dated 19.5.1969 and another dated 5.1.1970 that the respondent being an allottec was exempted from complying with the requiren1ents of passing the examination.\n\nAllowing the appeal.\n\nHELD : (1) The Division Bench rightly refused to deny relief to the respondent on the ground of delay and !aches. [510 Bl\n\n<2) Section 79 of the Act empowers the Board to make regulations not iriconsistent .with the Act and rules made thereunder to provide for a11 or any of the matters referred to in els. (a) to (k) of the section. Sub-s. (c) en1powers the Board to make regulations regarding the duties of officers and servants of the Board and their salaries, allowances and other conditions of service.\n\nBy virtue of the said powers the Board framed Mysore State Electricity Board Recruitment and Promotion of Employees of the Board Regulations, 1960. The minimum qualification prescribed is passing of SAS examination. The resolu\n\ntion of the Board dated 19.5.69 n1erely provides that the candidates appointed to the Government Board services for the first time after 1st November, 1956, must pass the department examinat:on for purnoses of earninJ? increments and promotion. The said resolution does not deal with cases of allottees. It is silent about allottees and, therefore, it is not pos:; dble to infer from that resolution that the allottees were exempted from passing the departmental examina tion. In any case, the passing of the resolution cannot have the effect of relaxing statutory regulations. Anart from that bv the subsequent resolution of 1970, the Board made it absolutely clear that the SAS examination had to be passed. [510 C-D, G-H, 511 E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 144 of 1977.\n\n,\\:-meal by Soecial leave from the Jnd!!111ent and Order dated the 2nd Januory, 1976 of the Karnataka High Court in Writ Appeal No- 430 of 1974. ·\n\n• .. t.\n\n...\n\nKARNATAKA ELF.CT. BOARD v. G. MOHIUDDIN (Kai/asam, J . .) 509\n\nV. N. Satyqnarayana, K. Rajendra Chowdhary and Veena Devi A (Mrs.) Khanna for the Appellant.\n\nS.S. Javali, B. P. Singh and A. K. Srivastava, for Respondent.\n\nThe Judgment of the Court was delivered by\n\nKA!LASAM, J .-This appeal is by the Karnataka Electricity Board B by its Secretary by Special leave granted by this Court against the judgment of the Karnataka Higb Court allowing the writ petition filed by the respondent and issuing a writ of mandamus to the appellant to consider the case of the respondent for promotion as an Accounts Superintendent as on 30th December, 1966, and to promote him to that post with effect from that date. .\n\nThe respondent was serving as an Accountant, Grade II, in the Electricity Department of the former State of Hyderabad.\n\nOn the reorganisation of the States in pursuance of the States Reorganisation Act, 1956, he was allotted to the l\\ew State of Mysore (now Karnataka) with effect from !st November, 1956. The post which he held came\n\nto be equated with tha't ofl I Division Clerk in the former State of Mysore.\n\nOn !st October, 1957, the Mysore State Electricity Board now Karnataka State Electricity Board was constlfuted under the Indian Electricity (Supply) Act. An option was given to the respondent to continue in the. Government service or fo opt to the Board. On 1st October, 1957, the respondent opted to the service under the Boar<! and ceased to be an employee of the Government with effect from that dafo.\n\nIn the year 1960 the Board framed Recruitment and Promotions Regulations in the exercise of its powers conferred on it under section 79 ( c) of the Act.\n\nThe Regulations were subsequently amended on 16th December, 1966. The amended Rules prescribe\\! that the posts of Accounts Superintendents were to be filled by promotion of I Division Clerks on the basis of seniority-cum-merit on their having passed Part I and II of the S.A.S. examination. ·\n\nOn 30th December, 1966, some persons junior to the respondent were promoted on their having passed the S.A.S. examination while promotion was denied to the respondent as be had not passed the examination.\n\nThe respondent made several representations one such representation being on 24th December, 1970 .. On 21st November, 1972, the respondent's representations were rejected. The respondent thereafter filed a writ petition before the High Court on 13th February, l973. The learned Single Judge who heard the petition dismissed it and the respondent preferred an appeal to a Bench of the Karnataka High Court. On behalf of the appellant, Karnataka Electricity Board, it was contended before the court that the writ petition ought to be dismissed on the ground of inordinate delay and !aches .. on the part of the respondent and also on the ground that in view of the later Resolution of the Board drrted 5th January, 1970, it was no longer open to the respondent to rely on the Resolution dated 19th May, 1969. The Bench of the Karnataka High Court held that the writ petition cannot\n\n6-502SCI/77\n\nA be thrown out on the ground of delay. On a consideration of the two Resolutions of the Board, namely thiit of 19th May, 1969 and 5th January, 1970, it found that the respondent as an allottee was exempted from complying with the requirements of passing the examination and therefore allowed the writ petition. 1--\n\nWe do not see any ground for not accepting the view of the lligh ·..- Court that in the circumstances of the case the relief to the respondent should not be denied on the ground of delay and !aches.\n\nThe only ground therefore on which the order of the High Court was challengd. by the appellant is that the court was in error in con~ truing the relevant provisions of the Regulations and the Resolutions and holding that the res.1JOndent is exempted from passing the S.A.S.\n\nC examination before qualifying for the promotion.\n\nBefore referring to the two Resolutions the relevant provisions of the law and Regulations made thereunder may be referred to.\n\nThe Electricity (Supply) Act, 1948, by section 79 empowers the Board to make Regulations not inconsistent with the Act and the rules made thereunder to provide for all or any of the matters referred to in clauses (a) to (k) of the section.\n\nSub-clause ( c) empowers the Board to make Regulations regarding D the duties of officers and servants of the Board and their salaries, allowances and other conditions of service. By virtue of the powers conferred on the Board it framed Mysore State Electricity Board Recmitment and Promotion of Employees of the Board Regulation, 1960.\n\nThe method of recruitment prescribed for promotion to Accounts Superintendents is prescribed in Chapter V of Annexure-2.\n\nThe method of recruitment is by promotion from the cadre of I Grade Clerks on the E basis of seniority'cum-merit.\n\nThe minimum qulification prescribed is that the candidate ought to have passed S.A.S. examination Part I and Part IL This provision which was enacted in 1960 continued to be in force <luring the relevant time. If this Regulation is applicable, the respondent's plea has to be rejected as it is incumbent Ont him to pass the S.A.S. examination.\n\nThe Resolution of the Board relied on F by the respondent is 19th May, 1969 and the material paragraph runs as follows :-\n\n\"It is hereby directed that the candidates appointed to Government/Board Service for the first time after the date of States Re-organisation i.e., !st November 1956 (as they are not allottees) should pass the Departmental Examination's and Kannada Language Tests for purposes of earning increments and for promotion.\"\n\nThe Resolution requires the passing of the examination and Kannada language test for the purpose of earning increments and for promotion for candidates appointed after !st November, 1956. But as it is not made applicable to the allottces, it is contended that the allottees are bv implication exempted from passing the Departmental Examination and Kannada language test.\n\nThis contention cannot be accepted for the Resolution is silent regarding the allottees and is not made applicable fo them. It is not possible to infer from the Resolution that the\n\nKARNATAKA ELECT. BOARD v. G. MOH!UDDIN (Kailasam, !.) 511\n\nallottees are exempted from passing the Departmental Examination A and the Kannada language test. fhe Resolution was passed by the Board in pursuance of certain proceedings of the Government referred to in the Resolution itself.\n\nParagraph 2 of the Resolution reads thus:\n\n\"Approval is accorded for the adoption of the Government Order Nos. (1) GAD 123 SSH 66 dated 21-11-1966 (2) GAD 2 SSR 67 dated 3-8-1967 and (3) GAD 72 SSR 67 dated 20-7-1968.\"\n\nThe three Gove=ent orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kanuada language test as a consequence of the judgment of the High Couri\n\nof Mysore and the Supreme Court. The orders specifically states that C unless in the Recruitment Rules relating to the service concerned Departmental Examination had been incorporated and pre_scribed and unless it is clearly specified for what purpose the tests are prescribed _ __......,. viz., whether for increments or promotions, the passing of Departmental tests cannot be legally insisted upon for grant of increments or for according promotion to higher posts.\n\nThe three Government orders make it clear that the relaxation of the rule relating to passing D of the Departmental Examinations and Kannada language test is only as regards services where the rules do not specifically require the passing of the examinations and the language test. These G.O.s do not apply in the present case as the Regulations framed by the Board under section 79(c) specifically prescribe the passing of the S.A.S. test.\n\nWe are unable to construe the Resolution dated 19th May, 1969 as exempting the alloftees from passing the test. In any event the plea of the E respondent will have to fail on the gronnd that the Regulations framed under section 79 ( c) of the Board requiring the passing of the examination was not relaxed by amending the Regulations. The passing of !he Resolution by the Board cannot have the effect of modifying a Regulation which was passed by the Board in the exercise of the powers conferred by the statute. Apart from this circumstance by a subsequent Resolution the Board itself considered the question in all its F aspects and resolved that passing of the S.A.S. examination for promotion to the cadre of Accounts Superintendents as before be insisted.\n\nWhatever might have been the purport of the Resolution dated 19th May, 1969, the Board by a subsequent Resolution had resolved on insisting on the passing of the examination.\n\nThe High Court found that the later Resolution did not affect the earlier Resolution on the ground that the subsequent Resolution did not make any reference to the earlier Resolution and that there is no reference to the allottees G at all.\n\nRelying on the words \"the passing of the S.A.S. Examination for promotion to the cadre of Accounts Superintendents as before be insisted\" the court found thaf it would mean that where the passin~\n\nof the S.A.S. Examination was insisted prior to that Resolution the game 'shall continue to be insisted in future also, and if passing of the S.A.S. Examination was nai insisted prior to that Resolution in the case of allottees for promotion to the cadre of Accounts Superinten- H dents.\n\nThe Resolution dated 5th January, 1970, cannot be understood as altering the position existing \"as before\".\n\nThis reasoning is\n\nA erroneous for, as pointed out by us the earlier Resolution was not intended to cover the case of allottees and merely because the allotte<:s were excluded from the operation of the Resolution the inference that the allottees were exempted from the passing of the examination is not justified.\n\nFurther before the Resolution there is nothing to indicate that the allottees were not required to pass the examinatio11. The conclusion of the High Court cannot be upheld as the binding nature of B the Regulations passed by the Board under section 79 ( c) has not\n\nbeen taken due note of.\n\nThis is the view taken by the Single Judge of the High Court.\n\nIn the result we allow the appeal, set aside the judgment of the lower appellate court and restore that of the Single Judge. There will be no order as to costs.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 47, "entities": [{"text": "KARNATAKA ELECTRICITY BOARD", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "KARNATAKA ELECTRICITY BOARD", "offset_not_found": false}}, {"text": "GULAM MOHIUDDIN", "label": "RESPONDENT", "start_char": 29, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "GULAM MOHIUDDIN", "offset_not_found": false}}, {"text": "April 12, 1977", "label": "DATE", "start_char": 46, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "KARNATAKA ELECTRICITY BOARD\n\nGULAM MOHIUDDIN\n\nApril 12, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 63, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 80, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 96, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Sec. 79", "label": "PROVISION", "start_char": 149, "end_char": 156, "source": "regex", "metadata": {"statute": null}}, {"text": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 506, "end_char": 593, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1st October, 1957", "label": "DATE", "start_char": 777, "end_char": 794, "source": "ner", "metadata": {"in_sentence": "On 1st October, 1957, the respondent opted to the service under the Board."}}, {"text": "s. 79(c)", "label": "PROVISION", "start_char": 1030, "end_char": 1038, "source": "regex", "metadata": {"linked_statute_text": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956", "statute": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956"}}, {"text": "Indian Electricity Supply Act, 1948", "label": "STATUTE", "start_char": 1046, "end_char": 1081, "source": "regex", "metadata": {}}, {"text": "16.12.1966", "label": "DATE", "start_char": 1129, "end_char": 1139, "source": "ner", "metadata": {"in_sentence": "The regulations were subsequently amended on 16.12.1966."}}, {"text": "Section 79", "label": "PROVISION", "start_char": 2095, "end_char": 2105, "source": "regex", "metadata": {"statute": null}}, {"text": "19.5.69", "label": "DATE", "start_char": 2729, "end_char": 2736, "source": "ner", "metadata": {"in_sentence": "The resolu\n\ntion of the Board dated 19.5.69 n1erely provides that the candidates appointed to the Government Board services for the first time after 1st November, 1956, must pass the department examinat:on for purnoses of earninJ?"}}, {"text": "1st November, 1956", "label": "DATE", "start_char": 2842, "end_char": 2860, "source": "ner", "metadata": {"in_sentence": "The resolu\n\ntion of the Board dated 19.5.69 n1erely provides that the candidates appointed to the Government Board services for the first time after 1st November, 1956, must pass the department examinat:on for purnoses of earninJ?"}}, {"text": "V. N. Satyqnarayana", "label": "LAWYER", "start_char": 3727, "end_char": 3746, "source": "ner", "metadata": {"in_sentence": "509\n\nV. N. Satyqnarayana, K. Rajendra Chowdhary and Veena Devi A (Mrs.) Khanna for the Appellant."}}, {"text": "K. Rajendra Chowdhary", "label": "LAWYER", "start_char": 3748, "end_char": 3769, "source": "ner", "metadata": {"in_sentence": "509\n\nV. N. Satyqnarayana, K. Rajendra Chowdhary and Veena Devi A (Mrs.) Khanna for the Appellant."}}, {"text": "Veena Devi A (", "label": "LAWYER", "start_char": 3774, "end_char": 3788, "source": "ner", "metadata": {"in_sentence": "509\n\nV. N. Satyqnarayana, K. Rajendra Chowdhary and Veena Devi A (Mrs.) Khanna for the Appellant."}}, {"text": "Khanna for the Appellant.", "label": "LAWYER", "start_char": 3794, "end_char": 3819, "source": "ner", "metadata": {"in_sentence": "509\n\nV. N. Satyqnarayana, K. Rajendra Chowdhary and Veena Devi A (Mrs.) Khanna for the Appellant."}}, {"text": "S.S. Javali", "label": "LAWYER", "start_char": 3821, "end_char": 3832, "source": "ner", "metadata": {"in_sentence": "S.S. Javali, B. P. Singh and A. K. Srivastava, for Respondent."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 3834, "end_char": 3845, "source": "ner", "metadata": {"in_sentence": "S.S. Javali, B. P. Singh and A. K. Srivastava, for Respondent."}}, {"text": "A. K. Srivastava", "label": "LAWYER", "start_char": 3850, "end_char": 3866, "source": "ner", "metadata": {"in_sentence": "S.S. Javali, B. P. Singh and A. K. Srivastava, for Respondent."}}, {"text": "KA!LASAM", "label": "JUDGE", "start_char": 3929, "end_char": 3937, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKA!LASAM, J .-This appeal is by the Karnataka Electricity Board B by its Secretary by Special leave granted by this Court against the judgment of the Karnataka Higb Court allowing the writ petition filed by the respondent and issuing a writ of mandamus to the appellant to consider the case of the respondent for promotion as an Accounts Superintendent as on 30th December, 1966, and to promote him to that post with effect from that date. ."}}, {"text": "Karnataka Higb Court", "label": "COURT", "start_char": 4079, "end_char": 4099, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKA!LASAM, J .-This appeal is by the Karnataka Electricity Board B by its Secretary by Special leave granted by this Court against the judgment of the Karnataka Higb Court allowing the writ petition filed by the respondent and issuing a writ of mandamus to the appellant to consider the case of the respondent for promotion as an Accounts Superintendent as on 30th December, 1966, and to promote him to that post with effect from that date. ."}}, {"text": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 4492, "end_char": 4579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mysore", "label": "GPE", "start_char": 4618, "end_char": 4624, "source": "ner", "metadata": {"in_sentence": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956, he was allotted to the l\\ew State of Mysore (now Karnataka) with effect from !"}}, {"text": "Karnataka", "label": "GPE", "start_char": 4630, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956, he was allotted to the l\\ew State of Mysore (now Karnataka) with effect from !"}}, {"text": "st November, 1956", "label": "DATE", "start_char": 4659, "end_char": 4676, "source": "ner", "metadata": {"in_sentence": "st November, 1956."}}, {"text": "st October, 1957", "label": "DATE", "start_char": 4789, "end_char": 4805, "source": "ner", "metadata": {"in_sentence": "st October, 1957, the Mysore State Electricity Board now Karnataka State Electricity Board was constlfuted under the Indian Electricity (Supply) Act."}}, {"text": "Mysore State Electricity Board", "label": "ORG", "start_char": 4811, "end_char": 4841, "source": "ner", "metadata": {"in_sentence": "st October, 1957, the Mysore State Electricity Board now Karnataka State Electricity Board was constlfuted under the Indian Electricity (Supply) Act."}}, {"text": "section 79", "label": "PROVISION", "start_char": 5316, "end_char": 5326, "source": "regex", "metadata": {"linked_statute_text": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956", "statute": "On the reorganisation of the States in pursuance of the States Reorganisation Act, 1956"}}, {"text": "16th December, 1966", "label": "DATE", "start_char": 5390, "end_char": 5409, "source": "ner", "metadata": {"in_sentence": "The Regulations were subsequently amended on 16th December, 1966."}}, {"text": "24th December, 1970", "label": "DATE", "start_char": 5922, "end_char": 5941, "source": "ner", "metadata": {"in_sentence": "The respondent made several representations one such representation being on 24th December, 1970 .. On 21st November, 1972, the respondent's representations were rejected."}}, {"text": "21st November, 1972", "label": "DATE", "start_char": 5948, "end_char": 5967, "source": "ner", "metadata": {"in_sentence": "The respondent made several representations one such representation being on 24th December, 1970 .. On 21st November, 1972, the respondent's representations were rejected."}}, {"text": "13th February, l973", "label": "DATE", "start_char": 6090, "end_char": 6109, "source": "ner", "metadata": {"in_sentence": "The respondent thereafter filed a writ petition before the High Court on 13th February, l973."}}, {"text": "Karnataka High Court", "label": "COURT", "start_char": 6229, "end_char": 6249, "source": "ner", "metadata": {"in_sentence": "The learned Single Judge who heard the petition dismissed it and the respondent preferred an appeal to a Bench of the Karnataka High Court."}}, {"text": "Karnataka Electricity Board", "label": "ORG", "start_char": 6279, "end_char": 6306, "source": "ner", "metadata": {"in_sentence": "On behalf of the appellant, Karnataka Electricity Board, it was contended before the court that the writ petition ought to be dismissed on the ground of inordinate delay and !"}}, {"text": "5th January, 1970", "label": "DATE", "start_char": 6545, "end_char": 6562, "source": "ner", "metadata": {"in_sentence": "aches .. on the part of the respondent and also on the ground that in view of the later Resolution of the Board drrted 5th January, 1970, it was no longer open to the respondent to rely on the Resolution dated 19th May, 1969."}}, {"text": "19th May, 1969", "label": "DATE", "start_char": 6636, "end_char": 6650, "source": "ner", "metadata": {"in_sentence": "aches .. on the part of the respondent and also on the ground that in view of the later Resolution of the Board drrted 5th January, 1970, it was no longer open to the respondent to rely on the Resolution dated 19th May, 1969."}}, {"text": "Before referring to the two Resolutions the relevant provisions of the law and Regulations", "label": "STATUTE", "start_char": 7583, "end_char": 7673, "source": "regex", "metadata": {}}, {"text": "section 79", "label": "PROVISION", "start_char": 7750, "end_char": 7760, "source": "regex", "metadata": {"linked_statute_text": "Before referring to the two Resolutions the relevant provisions of the law and Regulations", "statute": "Before referring to the two Resolutions the relevant provisions of the law and Regulations"}}, {"text": "High Couri\n\nof Mysore", "label": "COURT", "start_char": 10568, "end_char": 10589, "source": "ner", "metadata": {"in_sentence": "The three Gove=ent orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kanuada language test as a consequence of the judgment of the High Couri\n\nof Mysore and the Supreme Court."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 10598, "end_char": 10611, "source": "ner", "metadata": {"in_sentence": "The three Gove=ent orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kanuada language test as a consequence of the judgment of the High Couri\n\nof Mysore and the Supreme Court."}}, {"text": "section 79(c)", "label": "PROVISION", "start_char": 11421, "end_char": 11434, "source": "regex", "metadata": {"statute": null}}, {"text": "section 79", "label": "PROVISION", "start_char": 11711, "end_char": 11721, "source": "regex", "metadata": {"statute": null}}, {"text": "Resolution by the Board cannot have the effect of modifying a Regulation", "label": "STATUTE", "start_char": 11845, "end_char": 11917, "source": "regex", "metadata": {}}, {"text": "section 79", "label": "PROVISION", "start_char": 13822, "end_char": 13832, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_513_520_EN", "year": 1977, "text": "y r\n\nEKNATH SHANKARRAO MUKKAWAR\n\nSTATE OF MAHARASHTRA\n\nApril 12, 1977\n\n5!3\n\n{Y. V. CHANDRACHUD, P. K. GOSWAM! AND P. N. SHI:-IGHAL, JJ.]\n\nRe1lsional jurisdiction-Suo motu po!vrs of tire 1/ig!J Court to wlrancc sentence-Power not takm away by proi'ISI0/1 for appeal against illlldtquacy of se111ence by the Stale Govemml'llt or the Central Govermncnt-Crlrni~al Procl'durc Coac. C1ct ll of 1974), 1973, section 397 read with s. 401 (Section 435/-439, CmmtUJI Proctdure Code, 1898).\n\nCrfminal Procedure fode (Act 11 of 1974), 1973, Section 317(1), (21- Meanmg of the words by any other a~ncy empowered to make investiatiolt into any oOem:_e under any Central Act\"-lm•estigation under Pr., emion cf Pood Adulterntton Act by Food lttrpcctors-Sution 377(1) and not.._ 377(2) o!rh1 Cr. P. C. applies-Appeal at the instance of State Go>•ernrnent is mainlaiTUJble.\n\nPrc•emion of Food Adulteration Act, 1954, Section 16(1), Pro•i.<o [- Power to impose S<\"lltence less thatt minintttm-lnrerference by appellate ccmrt.\n\n' Appeal against inadequacy of scllfcnce-Power of court to alter cotll'l'ction to an aggral'ated caregory-CrimiMI Procedure Code (Act II of 197-4), 1973, Section 377- Scope of.\n\nPractice and precedents-Binding effect of decisiOIIS of coordinate court.\n\n The llppcllant nnd his !.1ther were t:harged u/s. 2(1) (c) of the Prc\\-ention of Food Adulteration Act, 19j.f for adulteration of chilly powder. The &ample of chilli powder which was seiud by the Food ln.sP.ector on April 13, 1974 cont<aincd 37.25% of the total ash against the permis~1ble pert:entage or 8%. It Y.lS atakd in the Analyst\"5 nport that the percentage of e., tr:tneou5 matter which \\\\&s common salt mixed with the chilli power was 32.-4%. The judicial magis- Irate, Udgir, found that the chilli powder wu adulterated within the meaning of\n\n1. 2(i) of the Act and convicted the appellant under e. 16(1) Cal (i), proviso I of the Preention of Food Adulterauon Act, 1954 r/w s. 2(1)(1) and s. 7(1) !J( the •id Act and sentenced him to simple imprtonment Ill! the risin~: of the court and to pay a lin.: of Ks. SOO /· nnd in default rigor~ us lmprisooment\n\nlor two month~. T~ 11ppellant's fnther was, however. ncqu1tted. The St:ttc of Aiahara.htra preferred an appeal agrunst the order of acqUittal of the father Hod again,! the mdequacy of the bCntence awarded to the appellant. The H1gh Olurt di.!m~ the appeal agairut acquittal of th~ appe!laot's father but allow~.! the appeal of the State '\"'ith regard to the inadequacy o~ the sentef!Ce. A!lifl!lina the conviction of the appelluot under s. 16(1) (a) (1) r/w sectJo~ 2(1)(•). and 7(1) of the Act, the High Court enhanc~ the senl~!1c¢ to. slX, months imple imprisonment and a line of Rs. 1000/-, 1n default s•mple 1mpnsooment '\"' two months.\n\nAllowin1: the appeal by •reciul leave, the Court, HElD : (I) The new Code uf Criminlll Procedure, 1973 ha~ .not al~<i rbe High Court'a pov.er of enhancement of senten.ce y exercJSm8 f re~•on_a iurbdktion suo mo1u. The proviion for appeal IIIJ111nsJ madcu)cJd ~0 seuh'~\n\nby the SUite Government or the Central Government Dell no1 e riat\" concJu\\ioo. High Courts power of enhanmef!l o! sei:~~\"u/~\n\n83~7~~~~:P with ':lee by exerciiina 3UO motu power of revrsloo 11 btill ctho High. cOurt eao \"by\n\n~· . ~! Criminal Procedure Code, l:J-3, tna;~~~ h':fcrior criminal court under lllielf e:..ll for the record of proce 101l' 0 Is bar to a party who d<lell not its Jurudictlon. The provision of': -401 (-4) . such 8 legal bar under\n\napp~:<~[ when appeal liCll, . but applies tot! u 15~ 0Court's exorcise of power of ' ~~1(4) d~ not atand m t~ wnr .o.! .. r'~ ingtho new Code.l'-''H, $46A.CJ tev~•on s11o molu, wbkh c:ontlnu~ a> \"\" 0\n\n-. ·--- -~----- -:\n\n} .\n\n1.·\n\n~· ' I, r\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\n(2) Under sub-section (l) of s. 377, the State Government has a right to appeal against the inadequacy of sentence in all cases other than those referred to in sub-section (2) of that section. The true test under s. 377(2) Criminal Procedure Code is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure.\n\nIn other words, just like s. 3 of the Delhi Special Police Establishment Act, there should be an express provision in an Act empowering the making of investigation under the Act No such express provision is found in tbe Prevention of Food Adulteration Act. Mere provision of an in-built mechanism of some kind of investigation in that Act is not decisive of the matter. There should be an express provision in that Act empowering the Food Inspectom to make investigation of offences under the Act. In the absence of any express provision in the Act in that behalf, it cannot be held that the Food Inspectors are empowered to make investigation under the Act.\n\nSection 377(2) Criminal Procedure Code, therefore, is not attracted and the appeal under s. 377(1), Criminal Procedure Code at the instance of the State Government is maintainable. [517 A, H, 518A, B, C, F}\n\n(3) The Prevention of Food Adulteration Act provides that when conviction is under s. 16(1) (a) {i) for selling an adulterated article coming within the\n\n- definition of section 2(i) (1 ), the Magistrate by recording adequate and special reasons has jurisdiction to award a sentence less than the minimutn.\n\n[519-H-520 A-C]\n\n(4) Courts have to give due recognition. to the intent of the Legislature in awarding proper sentence including the minimum sentence in appropriate caaes described under the Act. When the Legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circumstances, it is permissible for the courts to give the benefit in suitable cases. {519 F-Gl\n\n( 5) In an appeal under s. 3 77, Criminal Procedure Code, the High Court may interfere with the sentence, if no reasons for awarding a lesser sentence are recorded by the Magistrate. Again if the reasons recorded by the Magistrate are irrelevant, extraneous, without materials and grossly inadequate, the High Court will be justified in enhancing the sentence. In the instant case the reasons given by th: Magistrate were not so grossly inadequate that the High Court could interfere with the sentence in a petty case. [520 A-B, C]\n\n( 6) In an appeal against inadequacy of sentence it is not permissible to alter a conviction to an aggravated category of offence for which the accused was not convicted. While the accused in such an appeal under s. 377 can show that he is innocent of the offence, the prosecution is not entitled to show that be ls guilty of graver offence and that on that basis the sentence should be enhanced.\n\nThe prosecution will only be able to urge that the sentence is inadequate on the chargl! as found or even on an altered Jess graver charge. [519 DE]\n\n(7) When there is a decision of a co-ordinate court, it is open to the Judge to differ from it, but in that case, the only judicial alternative is to refer to a larger Bench and not to dispose of the appeal by taking a contrary view.\n\nJudicial discipline as well as decorum should suggest that as the only course.\n\n1520 F1\n\n76~\n\nCRIMINAL APPELLATE JuRISDICTioN: Criminal Appeal No. 577 I •\n\n(Appeal by Special Leave from the Judgment and Order dated the 4th Nov. 1976 of the Bombay High Court in Criminal Appeal No. 448 of 1973).\n\nH V. M. Tarkunde, S. V. Tambwekar and Miss M. Tarkunde, for the appellant.\n\nH. R. Khanna and M. N. Shroff, for the respondent\".\n\nEKNATH SHANKARRAO MUKKAWAR v. MAHARASHTRA 515 (Goswami, J.) The Judgment of the Court was delivered by\n\nGoswAMI, J.-The appellant was convicted by the Judicial Magistrate, Udgir, under section 16(1)(a)(i) proviso (i) of the Prevention of Food Adulteration Act, 1954, read with section 2(D(l) and section 7 (i) of the said Act and sentenced to simple imprisonmen_t till rising of the court and to pay a fine of Rs. 500/-, in default rigorous imprisonment for two months.\n\nThe appellant's father who was also charged for the same offence was, however, acquitted.\n\nThe charge against the appellant was that he sold chilli powder which was adulterated inasmuch as the percentage of the total ash was more than the permissible limit.\n\nThe sample of chilli powder which was seized by the Food Inspector on April 13, 1974, contained 3 7.25% of the total ash against the permissible percentage of 8%. It was stated in the Analyst's report that the percentage of extraneous matter which was common salt mixed with the chilli powder was 32.4%. The learned Magistrate found that the chilli powder was adulterated within the meaning of section 2(i) (I) although the prosecution was on the basis of the article being adulterated within the meaning of section 2 (i )(c) of the Prevention of Food Adulteration Act, 1954 (briefly the Act).\n\nThe State of Maharashtra preferred an appeal against the order of acquittal of the father of the appellant and against the inadequacy of the sentence awarded to the appellant. The High Court dismissed 1he appeal against acquittal of the appellant's father but allowed the appeal of the State with regard to the inadequacy of the sentence. The High Court while affirming the conviction of the appellant under section 16(l)(a)(i) read with sections 2(D(I) and 7(i) of the Act enhanced the sentence to six months' simple imprisonment and a fmc Df Rs. 1000/-, in default simple imprisonment for two months.\n\nHence this appeal by special leave.\n\nMr. Tarkunde, appearing on beh-alf of the appellant, submits that the appeal by the State of Maharashtra under section 377 (1), Criminal\n\nProcedure Code, 1973, was incompetent in view of the provisions of sub-section (2) of that section.\n\nHe further submits that the High Court was not at all justified in a case of this nature to interfere with the sentence when the trial court had given adequate reasons for imposing the lesser sentence.\n\nIt is also pointed out, more or less as an alternative sumission, that the power of th.e High Court to enhance sentence hrch was available under sectton 435/439 Cr.P.C. of the old Code rs replaced by the provision of appeal under section 377 Cr.P.C. of the new Code.\n\nIt is also stated that the High Court's power of revision, suo motu, long exercised nder the old Code !s nw taken away under the new Code by providrng for apppeal agamst madequacy of sentence. The above submission is. put forward ex abundanti caufelalest we. ay\n\nnot interfere with the sentence imposed by the Hrgh Court havng regard to the possibility of exercise of powrs, suo motu, y he High Court for enhancement of sentence assummg the appeal 1s mcompetcnt on the ground urged by the appellant.\n\n5!6\n\n\n(1977] 3 S.C.R.\n\n. V(c -should at once remove the misgiving that the new Code of Cnmmal Procedure, 1973, has abolished th~ High Court's power of !enhancement of sent~ce by exercising rev1sional jurisdiction, suo motu.\n\nThe prov1S1on for appeal against inadeq_uacy of sentence by the State Government or the Central Government does not lead to sucl.1 a conclusion.\n\nHigh Court's power of enhancement of senenc~, m an appropriate case, by exercising suo motu power of revision\n\nJS stlll extent under section 397 read with section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can \"by itself\" calf for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of section 401 ( 4) is a bar to a party, who docs not appeal, whe_n appeal lies, but applies in revision.\n\nSuch a legal bar under section 401 ( 4) does not stand in the way of the High Courts exercise of power of revision, suo motu, which continues as before in the new Code. ·\n\n.,.___\n\nBefore we proceed further we may set out section 3 77 (1) and: ... ........_\n\n(2) Cr. P. C. with. which we arc concerned :\n\n377. ( 1) \"Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.\n\n(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy\".\n\nMr. Tarkundc emphasised upon the difference of language . in section 377(2) and section 378(2) Cr. P.C.\n\nIn the latter section the word \"also\" appears making provision for both the State Govern-\n\n''tr'\n\nment and the Central Government to appeal against acquittal. 9:\n\nOn the other hand it is urged on behalf of the State that the word \"also\" may be read in section 377(2) Cr.P.C. in the context of the scheme of the two provisions in section 377 and section 378 Cr.P.C.\n\nIt is true that section 378(2) follows the pattern of section 417(2) of the old Code and the right to appeal is confrred upon both te State Government and the Central Government m express terms m section 378(2). It is clear that the legislature has maiJ?.tained. a watertight dichotomy while dealing the D?atter of appeal agamst inadequacy of sentence.\n\nWe agree that m the absence of a similar word \"also\" in section 377 (2) it is not possible for the court\n\nEKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 517 (Goswami, J.) to suppply a casus omissus. The two sections, section 377 and section 378 Cr. P. C. being situated in such close proximity, it is not possible to hold that omission of the word \"also\" in section 37i(2) is due to oversight or per incuriam. ·\n\n Secon 37~ Cr. P. C. introduces a new right of appeal which was not earl1er avmlable under the old Code.\n\nUnder sub-section ( 1) of section 377 Cr. P. C. the State Government has a right to appeal against inadequacy of sentence in all cases other than those referred to in sub-section (2) of that section.\n\nThis is made Clear under section 377 (1) by its opening clause \"save as otherwise provided in\n\nsubection (2)\". Sub-section (2) of section 377, on the other hand, confers a right of appeal on the Central Government against a sentence on the ground of its inadequacy in two types of cases :\n\n( 1) Those cases where investigation is conducted by the Delhi Special Police EstaQtishment constituted under the Delhi Special Police Establishment Act, 1946.\n\n( 2) Those other cases which are investigated by any other agency empowered to make investigation under any Central Act not being the Code of Criminal Procedure.\n\nThere is no difficulty about the first type of cases which are investigated by the Delhi Special Police Establishment where, certainly, the Central Government is the competent authority to appeal against inadequacy of sentence.\n\nThe controversy centres round the second type of cases viz., E those which arc investigated by any other agency empowered to make investigation under any Central Act not being .the Code of Criminal Procedure.\n\nThe Criminal Procedure Code inter alia, provides for investigation of all categories of criminal offences. The First Schedule of the Code\n\nclassifies offences under the Indian Penal Code as well as offences against other laws.\n\nBetween the above two classifications the entire denotation of criminal offences is exhausted. It is clear that the Delhi Special Police Establishmeqt also has to comply with the provisions of the Cede of Criminal Procedure in investigation of offences just as the State Police has to do.\n\nBy ~&ection 3 of the Delhi Special Police Establishment Act, the Central Government may by notification in the official gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment. It is only when uch a. notifia tion is made by the Central Government that the Delhi Spec1al Pohce Establishment is empowered to investigate the specified offences.\n\nSimilarly if in any other Central Act, not being the Code of Criminal Procedure, a provision is made for empowering a particular agency\n\nto make investigation of offences under that Act, then also the Central Government alone will be the competent authority to prefer appeal under section 377 (2) Cr. P. C. The true tes.t! .theret:ore, under section 377 (2) Cr. P. C. i~ whether the offence 1S mvestlgated by the\n\n\nDelhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. In other words, just like section 3 of the Delhi Special Police Establishment Act, there should be an express provision in the Prevention of Food Adulteration Act empowering the making of investigation under the Act. But no such express provision is found in the Prevention of Food Adulteration Act.\n\nMr .. Tarkunde took us through all the relevant provisions of the Prevention of Food Adulteration Act and in particular rule 9 of the Central ~lcs to 'point ot tha.t it_ is a self-contained code detailing the reqs1tc manner of mvestlgatlon for the purpose of efficient prosecution of offenders under that Act.\n\nMere provision of an\n\nin-u_ilt mechanism of some kind of investigation in that Act is not dectstve of the matter.\n\nThere should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act.\n\nIt is true that investigation under section 2(h) Cr. P. C. is an inclusive definition and is of wide import. It may also be true that some of the powers exercised by the Food Inspectors under section 10 of the Act are included in the imrestigatory process of the police although the Food Inspectors have no powers of arrest of the offenders unless they refuse to give name and residence or give suspicious name or residence.\n\nThis procedure in the Act follows from the fact that on the date of taking a sample of an article, the Food Inspector :is not in a position to come to a conclusion whether the article is adulterated within the meaning of the Act.\n\nIt is only on receiPt of_ the Analyst's report certifying the article to be adulterated that the Food Inspector will be able to submit a report to the Magistrate for taking cognizance of the offence and his report will have to be accompanied also by a written consent of the appropriate authority under section 20 of the Act The scheme of the Act is such that the case is instituted on his report and dealt with under the Criminal Procedure Code as a case of which cognizance is taken under section 190(1 )(a) of the Criminal Procedure Code. In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspectors are empowered to make investi~Sation under the Act.\n\nSection 3 77 (2) Cr .P. C., therefore, is not attracted and the appeal under section 377(1) Cr.P.C. at the instance of the State Government is maintainable.\n\nThe first submission of the appellant has no force.\n\nWith regard to the second and last submission on sentence Mr.\n\nKhanna on behalf of the State submits that this was a case under section 16 for violation of section 2(i)(c) of the Act in which case the Magistrate had no jurisdiction to award a sentence less than six months.\n\nAccording to counsel, the High Court was right in enhancing the sentence of the appellant.\n\nWe are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act 34 of 1976, which\n\n)I... ..\n\n•. -4:\n\n\n-~'\n\nEKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami, 1.) inter alia, amended section 2 ( i) (1) and added a sub-clause ( m) to section 2 ( i) . ,\n\nIt is true that under section 16(1) (a) (i) if any person sells any article of food which is adulterated he shall b~ punishable with imprison~\n\nment for a term which shall not be less than six months but which may extend to six years and a fine which shall not be less than one thousand rupees.\n\nThe proviso to that section, however, relieves an offence under sub-clause (i) of clause (a) when inter aUa, it is with respect to an article of food which is adulterated under sulrclause\n\n(1) of clause (i) of section 2, from the rigour of the above penal provision and the court may, for any adequate and special reason, impose a sentence of imprisonment for a term of less -than six months or a fine of less than one thousand rupees etc.\n\nIt is by invoking the above proviso that the trial court sentenced the appellant as set out above:\n\nMr. Khanna submits that we should alter the finding of conviction to one for violation of section 2(i)(c) from section 2(D(l), since, according to him, that will be the proper conviCtion on the facts. 0}'\n\nthe case.\n\nWe are unable to entertain this plea for altering the conviction in such a manner for the purpose of enhancing the sentence under section 377 Cr.P.C.\n\nThe State did. not appeal against the acquittal of the appellant under section 16(1) (a) (i) read with section 2(i)(c) and proceeded on the basis that the article was adulterated within the meaning of section 2(i) (1) as held by the trial court.\n\nThis is clear also from the judgment of the High Court. In an appeal against inadequacy of sentence it is not permissible to alter the conviction to an aggravated category of offence for which the accused was not convicted. While the accused in such an appeal under section 377 Cr.P.C. can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of a graver offence and on that basis the sentence should be enhanced.\n\nThe prosecution will only be able to urge that the sentence is inadequate on the charge as found or even on an altered less graver charge.\n\nThe submission of Mr. Khanna is clearly untenable.\n\nMr. Khanna next submits that this Court should not interfere with the sentence in a case under the Prevention of Food Adulteration Act :as the offence is against society at large affecting the health and wellbeing of the people in general.\n\nWe are alive to the seriousness of offences under the Prevention of Food Adulteration Act. Courts have to give due recognition to the intent of the legislature in awarding proper sentence including the minimum sentence in appropriate cases described under the Act. such offences cannot be treated in a lighthearted manner. Even so justice has to be done in accordance with 1aw. The Prevention of Food Adulteration Act, itself, permits for some leniency in an excepted category of cases as pointed out earlier.\n\nWhen the legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circumstances, it is permissible for the courts to give the benefit in suitable cases.\n\nAs seen earlier the Prevention of Food Adulteration Act provides that when convictin is under section 16(]) (a) (i) for selling r.n adulterated article coming within the defi'nition of section 2(i)(l), the\n\n\n(1977] 3 S.C.R.\n\nMagistrate, by recording adequate and special reasons, has jurisdiction\n\nt? award a sentence less than the minimum. In an appeal under section 377 Cr.P.C. the High Court may interfere with the sentence if no reasons for awarding a lesser sentence are recorded by the Magistrate.\n\nAgain, if the reasons recorded by the Magistrate are irrelevant, extraneous, without materials and grossly inadequate, the High Court will be justified in enhancing the sentence. . ·\n\nWhile dealing with the question of sentence the Magistrte noted that the appellant was a small retail shopkeeper who had only 3 kgs.\n\nof chilli powder in his shop for sale out of which 450 gms. were purchased by the Food Inspector.\n\nHe also considered the nature of the offen<; e as disclosed in the report of the Public Analyst. There is nothing in the evidence to show that any injurious ingteaicnt to health was mixed with the article.\n\nWe find that the Magistrate had the jurisdiction under the first proviso to section 16 ( 1 ) to a ward less than the minimum sentence in this case by recording adequate and special reasons. We are unable to hold that the reasons given by the Magistrate are so grossly inadequate that the High Court was right in interfering with the sentence m this petty case.\n\nWe must hasten to add that the matter would have been absolutely different if the article sold contained ingredients injurious to health.\n\nOur attention is drawn to a disquieting feature in the procedure adopted by the learned single Jud.ge (G. N. Vaidy~, J.) in disposin$ of the appeal.\n\nThe learned Judge tgnored the dec1smn of another ~; mgle Judge of the same court (J. M. Gandhi, J.) who had earlier held in a similar case that the appeal by the State was not competent under section 377(1) Cr.P.C. It is true that the decision is pending before this Court in appeal by special leave.\n\nThat, however, cannot be sufficient reason for the learned Judge to ignore it and observe that it is\n\n\"unnecessary to keep back this matter till the Supreme Court decides matter\". When there was a decision of a coordinate court, it was open to the learned Judge to differ from it but in that case the only jlldicial\n\nalternative was to refer it to a larger bench and not to dispose of the appeal by taking a contrary view.\n\nJudicial discipline as w~U as decorum should suggest that as the only course.\n\nIn the result the appeal is allowed and the judgn1e?t and order of the High Court arc set aside. The appellant shall be dtscharged from his bail bond.\n\nS.R.\n\nAppeal allowed.", "total_entities": 140, "entities": [{"text": "r\n\nEKNATH SHANKARRAO MUKKAWAR", "label": "PETITIONER", "start_char": 2, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "EKNATH SHANKARRAO MUKKAWAR", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 33, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "April 12, 1977", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "y r\n\nEKNATH SHANKARRAO MUKKAWAR\n\nSTATE OF MAHARASHTRA\n\nApril 12, 1977\n\n5!3\n\n{Y. V. CHANDRACHUD, P. K. GOSWAM!"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 77, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "Y.V. 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M. Tarkunde", "label": "OTHER_PERSON", "start_char": 7447, "end_char": 7463, "source": "ner", "metadata": {"in_sentence": "H V. M. Tarkunde, S. V. Tambwekar and Miss M. Tarkunde, for the appellant."}}, {"text": "S. V. Tambwekar", "label": "OTHER_PERSON", "start_char": 7465, "end_char": 7480, "source": "ner", "metadata": {"in_sentence": "H V. M. Tarkunde, S. V. Tambwekar and Miss M. Tarkunde, for the appellant."}}, {"text": "H. R. Khanna", "label": "OTHER_PERSON", "start_char": 7523, "end_char": 7535, "source": "ner", "metadata": {"in_sentence": "H. R. Khanna and M. N. Shroff, for the respondent\"."}}, {"text": "M. N. Shroff", "label": "OTHER_PERSON", "start_char": 7540, "end_char": 7552, "source": "ner", "metadata": {"in_sentence": "H. R. Khanna and M. N. Shroff, for the respondent\"."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 7680, "end_char": 7687, "source": "ner", "metadata": {"in_sentence": "EKNATH SHANKARRAO MUKKAWAR v. MAHARASHTRA 515 (Goswami, J.) The Judgment of the Court was delivered by\n\nGoswAMI, J.-The appellant was convicted by the Judicial Magistrate, Udgir, under section 16(1)(a)(i) proviso (i) of the Prevention of Food Adulteration Act, 1954, read with section 2(D(l) and section 7 (i) of the said Act and sentenced to simple imprisonmen_t till rising of the court and to pay a fine of Rs.", "canonical_name": "GoswAMI"}}, {"text": "section 16(1)(a)(i)", "label": "PROVISION", "start_char": 7761, "end_char": 7780, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 7800, "end_char": 7841, "source": "regex", "metadata": {}}, {"text": "section 2(D(l)", "label": "PROVISION", "start_char": 7853, "end_char": 7867, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "section 7", "label": "PROVISION", "start_char": 7872, "end_char": 7881, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "April 13, 1974", "label": "DATE", "start_char": 8376, "end_char": 8390, "source": "ner", "metadata": {"in_sentence": "The sample of chilli powder which was seized by the Food Inspector on April 13, 1974, contained 3 7.25% of the total ash against the permissible percentage of 8%."}}, {"text": "section 2(i)", "label": "PROVISION", "start_char": 8700, "end_char": 8712, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "section 2", "label": "PROVISION", "start_char": 8814, "end_char": 8823, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Prevention of Food Adulteration Act, 1954", "label": "STATUTE", "start_char": 8839, "end_char": 8880, "source": "regex", "metadata": {}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 8905, "end_char": 8925, "source": "ner", "metadata": {"in_sentence": "The State of Maharashtra preferred an appeal against the order of acquittal of the father of the appellant and against the inadequacy of the sentence awarded to the appellant."}}, {"text": "section 16(l)(a)(i)", "label": "PROVISION", "start_char": 9309, "end_char": 9328, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "sections 2(D(I) and 7(i)", "label": "PROVISION", "start_char": 9339, "end_char": 9363, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 9546, "end_char": 9554, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkunde, appearing on beh-alf of the appellant, submits that the appeal by the State of Maharashtra under section 377 (1), Criminal\n\nProcedure Code, 1973, was incompetent in view of the provisions of sub-section (2) of that section.", "canonical_name": "M. Tarkunde"}}, {"text": "section 377", "label": "PROVISION", "start_char": 9653, "end_char": 9664, "source": "regex", "metadata": {"linked_statute_text": "the Prevention of Food Adulteration Act, 1954", "statute": "the Prevention of Food Adulteration Act, 1954"}}, {"text": "Procedure Code, 1973", "label": "STATUTE", "start_char": 9680, "end_char": 9700, "source": "regex", "metadata": {}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 10145, "end_char": 10151, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 377", "label": "PROVISION", "start_char": 10214, "end_char": 10225, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 10226, "end_char": 10232, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Cnmmal Procedure, 1973", "label": "STATUTE", "start_char": 10832, "end_char": 10862, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 11066, "end_char": 11084, "source": "ner", "metadata": {"in_sentence": "The prov1S1on for appeal against inadeq_uacy of sentence by the State Government or the Central Government does not lead to sucl.1 a conclusion."}}, {"text": "section 397", "label": "PROVISION", "start_char": 11257, "end_char": 11268, "source": "regex", "metadata": {"linked_statute_text": "Code of Cnmmal Procedure, 1973", "statute": "Code of Cnmmal Procedure, 1973"}}, {"text": "section 401", "label": "PROVISION", "start_char": 11279, "end_char": 11290, "source": "regex", "metadata": {"linked_statute_text": "Code of Cnmmal Procedure, 1973", "statute": "Code of Cnmmal Procedure, 1973"}}, {"text": "Criminal Procedure Code, 1973", "label": "STATUTE", "start_char": 11291, "end_char": 11320, "source": "regex", "metadata": {}}, {"text": "section 401", "label": "PROVISION", "start_char": 11472, "end_char": 11483, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code, 1973", "statute": "Criminal Procedure Code, 1973"}}, {"text": "section 401", "label": "PROVISION", "start_char": 11599, "end_char": 11610, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code, 1973", "statute": "Criminal Procedure Code, 1973"}}, {"text": "section 3", "label": "PROVISION", "start_char": 11797, "end_char": 11806, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code, 1973", "statute": "Criminal Procedure Code, 1973"}}, {"text": "Delhi Special Police Establishment Act, 1946", "label": "STATUTE", "start_char": 12311, "end_char": 12355, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tarkundc", "label": "OTHER_PERSON", "start_char": 12627, "end_char": 12635, "source": "ner", "metadata": {"in_sentence": "Mr. Tarkundc emphasised upon the difference of language .", "canonical_name": "M. Tarkunde"}}, {"text": "section 377(2)", "label": "PROVISION", "start_char": 12684, "end_char": 12698, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Special Police Establishment Act, 1946", "statute": "the Delhi Special Police Establishment Act, 1946"}}, {"text": "section 378(2)", "label": "PROVISION", "start_char": 12703, "end_char": 12717, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Special Police Establishment Act, 1946", "statute": "the Delhi Special Police Establishment Act, 1946"}}, {"text": "section 377(2)", "label": "PROVISION", "start_char": 12980, "end_char": 12994, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Special Police Establishment Act, 1946", "statute": "the Delhi Special Police Establishment Act, 1946"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 12995, "end_char": 13001, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 377", "label": "PROVISION", "start_char": 13057, "end_char": 13068, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 378", "label": "PROVISION", "start_char": 13073, "end_char": 13084, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 13085, "end_char": 13091, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 378(2)", "label": "PROVISION", "start_char": 13110, "end_char": 13124, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 417(2)", "label": "PROVISION", "start_char": 13148, "end_char": 13162, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 378(2)", "label": "PROVISION", "start_char": 13290, "end_char": 13304, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 377", "label": "PROVISION", "start_char": 13504, "end_char": 13515, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 517", "label": "JUDGE", "start_char": 13554, "end_char": 13599, "source": "ner", "metadata": {"in_sentence": "We agree that m the absence of a similar word \"also\" in section 377 (2) it is not possible for the court\n\nEKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 517 (Goswami, J.) to suppply a casus omissus.", "canonical_name": "EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami"}}, {"text": "Goswami", "label": "JUDGE", "start_char": 13601, "end_char": 13608, "source": "ner", "metadata": {"in_sentence": "We agree that m the absence of a similar word \"also\" in section 377 (2) it is not possible for the court\n\nEKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 517 (Goswami, J.) to suppply a casus omissus.", "canonical_name": "GoswAMI"}}, {"text": "section 377", "label": "PROVISION", "start_char": 13660, "end_char": 13671, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 378", "label": "PROVISION", "start_char": 13676, "end_char": 13687, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 37", "label": "PROVISION", "start_char": 13801, "end_char": 13811, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 377", "label": "PROVISION", "start_char": 13988, "end_char": 13999, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 377", "label": "PROVISION", "start_char": 14188, "end_char": 14199, "source": "regex", "metadata": {"statute": null}}, {"text": "section 377", "label": "PROVISION", "start_char": 14293, "end_char": 14304, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Special Police Establishment Act, 1946", "label": "STATUTE", "start_char": 14567, "end_char": 14611, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 14748, "end_char": 14774, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 15187, "end_char": 15213, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 15327, "end_char": 15341, "source": "regex", "metadata": {"linked_statute_text": "Those other cases which are investigated by any other agency empowered to make investigation under any Central Act not being the Code", "statute": "Those other cases which are investigated by any other agency empowered to make investigation under any Central Act not being the Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 15385, "end_char": 15402, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi Special Police Establishment Act", "label": "STATUTE", "start_char": 15755, "end_char": 15793, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Delhi Spec1al Pohce Establishment", "label": "ORG", "start_char": 16055, "end_char": 16088, "source": "ner", "metadata": {"in_sentence": "It is only when uch a. notifia tion is made by the Central Government that the Delhi Spec1al Pohce Establishment is empowered to investigate the specified offences."}}, {"text": "Similarly if in any other Central Act", "label": "STATUTE", "start_char": 16142, "end_char": 16179, "source": "regex", "metadata": {}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 16195, "end_char": 16221, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 377", "label": "PROVISION", "start_char": 16423, "end_char": 16434, "source": "regex", "metadata": {"linked_statute_text": "Similarly if in any other Central Act", "statute": "Similarly if in any other Central Act"}}, {"text": "section 377", "label": "PROVISION", "start_char": 16484, "end_char": 16495, "source": "regex", "metadata": {"linked_statute_text": "Similarly if in any other Central Act", "statute": "Similarly if in any other Central Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 16700, "end_char": 16726, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 16754, "end_char": 16763, "source": "regex", "metadata": {"linked_statute_text": "Similarly if in any other Central Act", "statute": "Similarly if in any other Central Act"}}, {"text": "Delhi Special Police Establishment Act", "label": "STATUTE", "start_char": 16771, "end_char": 16809, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "no such express provision is found in the Prevention of Food Adulteration Act", "label": "STATUTE", "start_char": 16949, "end_char": 17026, "source": "regex", "metadata": {}}, {"text": "Tarkunde took us through all the relevant provisions of the Prevention of Food Adulteration Act", "label": "STATUTE", "start_char": 17035, "end_char": 17130, "source": "regex", "metadata": {}}, {"text": "section 2(h)", "label": "PROVISION", "start_char": 17621, "end_char": 17633, "source": "regex", "metadata": {"linked_statute_text": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act", "statute": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act"}}, {"text": "section 10", "label": "PROVISION", "start_char": 17777, "end_char": 17787, "source": "regex", "metadata": {"linked_statute_text": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act", "statute": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act"}}, {"text": "section 20", "label": "PROVISION", "start_char": 18545, "end_char": 18555, "source": "regex", "metadata": {"linked_statute_text": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act", "statute": "There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act"}}, {"text": "section 190(1 )(a)", "label": "PROVISION", "start_char": 18733, "end_char": 18751, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 18955, "end_char": 18964, "source": "regex", "metadata": {"statute": null}}, {"text": "section 377(1)", "label": "PROVISION", "start_char": 19032, "end_char": 19046, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 19047, "end_char": 19053, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Khanna", "label": "LAWYER", "start_char": 19229, "end_char": 19235, "source": "ner", "metadata": {"in_sentence": "With regard to the second and last submission on sentence Mr.\n\nKhanna on behalf of the State submits that this was a case under section 16 for violation of section 2(i)(c) of the Act in which case the Magistrate had no jurisdiction to award a sentence less than six months.", "canonical_name": "Khanna"}}, {"text": "section 16", "label": "PROVISION", "start_char": 19294, "end_char": 19304, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 2(i)(c)", "label": "PROVISION", "start_char": 19322, "end_char": 19337, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami", "label": "PETITIONER", "start_char": 19681, "end_char": 19735, "source": "ner", "metadata": {"in_sentence": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act 34 of 1976, which\n\n)I... ..\n\n•. -4:\n~'\n\nEKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami, 1.)", "canonical_name": "EKNATH SHANKARRAO MUKKAWAR V. MAHARASHTRA 519 (Goswami"}}, {"text": "section 2", "label": "PROVISION", "start_char": 19761, "end_char": 19770, "source": "regex", "metadata": {"linked_statute_text": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act", "statute": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act"}}, {"text": "section 2", "label": "PROVISION", "start_char": 19811, "end_char": 19820, "source": "regex", "metadata": {"linked_statute_text": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act", "statute": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act"}}, {"text": "section 16(1)", "label": "PROVISION", "start_char": 19853, "end_char": 19866, "source": "regex", "metadata": {"linked_statute_text": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act", "statute": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act"}}, {"text": "section 2", "label": "PROVISION", "start_char": 20337, "end_char": 20346, "source": "regex", "metadata": {"linked_statute_text": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act", "statute": "We are concerned in this case with the Prevention of Food Adulteration Act prior to the amendment by Act"}}, {"text": "Khanna", "label": "LAWYER", "start_char": 20672, "end_char": 20678, "source": "ner", "metadata": {"in_sentence": "It is by invoking the above proviso that the trial court sentenced the appellant as set out above:\n\nMr. Khanna submits that we should alter the finding of conviction to one for violation of section 2(i)(c) from section 2(D(l), since, according to him, that will be the proper conviCtion on the facts.", "canonical_name": "Khanna"}}, {"text": "section 2(i)(c)", "label": "PROVISION", "start_char": 20758, "end_char": 20773, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(D(l)", "label": "PROVISION", "start_char": 20779, "end_char": 20793, "source": "regex", "metadata": {"statute": null}}, {"text": "section 377", "label": "PROVISION", "start_char": 21015, "end_char": 21026, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 21027, "end_char": 21033, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 16(1)", "label": "PROVISION", "start_char": 21107, "end_char": 21120, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 2(i)(c)", "label": "PROVISION", "start_char": 21139, "end_char": 21154, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 2(i)", "label": "PROVISION", "start_char": 21237, "end_char": 21249, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 377", "label": "PROVISION", "start_char": 21549, "end_char": 21560, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 21561, "end_char": 21567, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "are alive to the seriousness of offences under the Prevention of Food Adulteration Act", "label": "STATUTE", "start_char": 22180, "end_char": 22266, "source": "regex", "metadata": {}}, {"text": "section 16(])", "label": "PROVISION", "start_char": 22993, "end_char": 23006, "source": "regex", "metadata": {"linked_statute_text": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act", "statute": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act"}}, {"text": "section 2(i)(l)", "label": "PROVISION", "start_char": 23084, "end_char": 23099, "source": "regex", "metadata": {"linked_statute_text": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act", "statute": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act"}}, {"text": "section 377", "label": "PROVISION", "start_char": 23259, "end_char": 23270, "source": "regex", "metadata": {"linked_statute_text": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act", "statute": "We are alive to the seriousness of offences under the Prevention of Food Adulteration Act"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 23271, "end_char": 23277, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 16", "label": "PROVISION", "start_char": 24104, "end_char": 24114, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "G. N. Vaidy~", "label": "JUDGE", "start_char": 24632, "end_char": 24644, "source": "ner", "metadata": {"in_sentence": "Our attention is drawn to a disquieting feature in the procedure adopted by the learned single Jud.ge (G. N. Vaidy~, J.) in disposin$ of the appeal."}}, {"text": "J. M. Gandhi", "label": "JUDGE", "start_char": 24761, "end_char": 24773, "source": "ner", "metadata": {"in_sentence": "The learned Judge tgnored the dec1smn of another ~; mgle Judge of the same court (J. M. Gandhi, J.) who had earlier held in a similar case that the appeal by the State was not competent under section 377(1) Cr."}}, {"text": "section 377(1)", "label": "PROVISION", "start_char": 24871, "end_char": 24885, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 24886, "end_char": 24892, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Supreme Court", "label": "COURT", "start_char": 25130, "end_char": 25143, "source": "ner", "metadata": {"in_sentence": "That, however, cannot be sufficient reason for the learned Judge to ignore it and observe that it is\n\n\"unnecessary to keep back this matter till the Supreme Court decides matter\"."}}]}
{"document_id": "1977_3_521_524_EN", "year": 1977, "text": "NRJSINGHA MURARI CHAKRABORTY & ORS A\n\nSTATE OF WEST BENGAL April 12, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N, SHINGHAL. JJ.J\n\nindiun Penal Code 1860-Sec. 415·420-whether Passport is a Property- Meaning of property.\n\nThe appellants \\Vere charged under section 420 read with section 120B of the Indian Penal Code on the ground that there was a conspiracy between them as a result of which hundreds of applications were filed for the issue of pass ports. The applications were made by suppressing the real facts about the nationality and addresses of the applicants and by making false representations in several other respects. The prosecution alleged that hundreds of passports were issued and delivered to persons who were not entitled to have them under the law.\n\nSpecial Leave was granted limited to the question whether the pass ports were property within the meaning of section 420 of the Indian Pchal Code.\n\nDismissing the appeal,\n\nHELD : I. A passport is a document which by its nature and purpose i3 a political document for the benefit of its bolder. It recognises him as a citizen of the country granting it and is in the nature of a request to the other country D tor hia free passage there.\n\n[522-C] Satwant Singh Sawhney v. D. Raniuratlmam (1967) 3 SCR 525 refercd to;\n\nAbhayanand Mishra v. The State of Bihar (1962) 2 SCR 241 followed; Queen Empress v.\n\nAppasan1i (1889) I.L.R. 12 Mad. 151 and Queen Enrpres. v. Sashi Bhuslian (1893) I.L.R. 15 All. 210 approved; Ishwarlal Girdharilal Parekh v. State of Maharashtra and Other (1969) 1 E SCk 13 followed:\n\nJn Packiannthan A.I.R. 1920 1iad. 131 ( 1) and Local Governnze11t v.\n\nGanga Ram A.l.R. 1922 Nagpur 229 approved.\n\n2. The word 'property' is defined as the right to the use or enjoyment or the beneficial right of disposal of anything that can be the subject of ownership, specially ownership of tangible things. Passport is a tangible thing and is capable of ownership. It is the property of the State so long as it is with the passport issuing authority and has not been issued to the person concerned, and after issue F it becomes the property of the person to \\vhom it bas been granted. Passport can be the subject of ownership or exclusive possession and is therefore property within the meaning of sections 415 and 420 1.P.C. [523 A-C, 524 GJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 277 of 1971.\n\nAppeal by Special Leave from the Judgment and Order dated the 23rd June, 1971 of the Calcutta High Court in Cr!. A. No. 45 of 1964.\n\nG P. K. Chatterjee and Rathin Das for the Appellanis.\n\nD. N. Mukherjee and G. S. Chatterjee for Respondents.\n\nThe Judgment of the Court was delivered by SHINGHAL, J.-Thi> appeal by special leave is directed against the judgment of the Calcutta High Court dated June 23, 1971, upholding H the conviction of the appellants for offences under sections 420 znd 420/120B of the Penal Code but reucig their sen.tences.\n\nThe charge related to cheating the passport 1ssumg authority of the Hooghly\n\ndistrict by disho!1estly indcing him to _iss)le passports on the basis of false .representations.\n\nThis Court has limited the special leave to the\n\nquet10n whether the passports were \"property\" within the meaning of sect10n 420 of the Penal Code ? ·\n\nSpeaking broadly, the allegation against the appellants was that\n\ntere was a conspiracy btween them as a result of which 1480 applications were file~ for the issue of passports from July, 1956 to April, 1957, by Muslims and Chinese nationals.\n\nThese applications were alleged to have been made by suppressing the real facts about the nationality and addresses of the applicants, and by making false representations in several other respects.\n\nThe prosecution alleged titat hundreds of passports were thus issued and delivered to persons who were not entitled to them under the law.\n\nSome of the appellants were alleged to be directly concerned with those applications, and it was further alleged that the orders of the Passport Authority were obtained by dishonest inducement and false representation.\n\nA passport is a document which, by its nature and purpose, is a political document for the benefit of its holder.\n\nIt recognises him as a citizen of the country granting it and is in the nature of a request to the other country for his free passage there.\n\nIts importance was examined by this Court in Satwant Singh Sawhney v. D. Ramarathnam(') with reference to the provisions of the Indian Passport (Entry Into India) Act, 1920, (hereinafter referred to as the Act) and tho\n\nRules made thereunder which were in force at the time when the offences were said to have been committed in this case.\n\nAfter referring to sectioQS 3 and 4 of the Act, and rules 4 and 5 of the Rules, this Court observed as follows,-\n\n\" ...... possession of passport, whatever may be its meaning or legal effect, is a necessary requisite for leaving India for travelling abroad.\n\nThe argument that the Act does not impose the taking of a passport as a condition of exit from India, therefore it does not interfere with the right of a person to leave India, if we may say so, is rather hypertechnical and ignores the realities of the situation.\n\nApart from the fact that possession of passport is a necessary condition of travel in the international community, the prohibition against entry indirectly prevents the person from leaving India.\n\nThe State in fact tells a person living in India 'you cau leave India at your pleasure without a passport, but you would not be allowed by foreign countries to enter them without it and you cannot also come back to India withoi:t. it.' No perso!' in India can possibly travel on those cond1t10ns.\n\nIndeed 1t is impossible for him to do so. 1 hat apat, even that tho retical possibility of exit is expressly restncted by executive instructions and by refusal of foreign-exchange.\"\n\nThere can therefore be no doubt that a passport is a document of importance for travel abroad and is of considerable value to its holder.\n\n(I) (1967] 3 S.C.R. 525.\n\nN. M. CHAKRABORTY v. WEST BENGAL (Shinghal, /.) 523\n\nThe word \"property\" has been defined in the Century, Dictionary, which is an encyclopedic lexicon o~ the English language, as follows,-\n\n\"the right to the use or enjoyment or the beneficial light of disposal of anything tht can be the subject of ownership; ownership; estate; especially, ownership of tangible things .... ; anything that may be exclusively possessed and enjoyed; ...... possessions.\"\n\nAs has been stated, a passport provides the several benefits mentioned above.\n\nIt is a tangible thing and is capable of ownership.\n\nThere can therefore be no doubt that it is \"property\". It is property of the State so long as it is with the passport issuilig authority and has not been issued to the person concerned and, after issue, it becomes the property of the person to whom it has been granted.\n\nOur attention has not been invited to any case where the question now before us arose for consideration on an earlier occasion.\n\nBut a somewhat similar question was considered by this Court in Abhayanand Mishra v. The State of Bihar (').\n\nThe appellant there applied to the Patna University for permission to appear at the M.A. examination as a private candidate, representing that he was a graduate having obtained the B.A. degree in 1951 and had been teaching in a school.\n\nOn that basis, an admission card was despatched for him to the Headmaster of the school. It was however found that he was neither a graduate nor a teacher. He was prosecuted for the offence under section 420 read with section 511 of the Penal Code. He contended that his conviction was unsustainable because the admission card had no pecuniary value and was not property. This Court repelled the contention and held that although the admission card as such had no pecuniary value, it had immense value to the candidate appearing in the examination for he could not have appeared at the examination without it, and that it was therefore property within the meaning of section 415 of the Penal Code.\n\nWhile reaching that conclusion, this Court relied on Queen Empress v. Appasami (') and Queen Empress v.\n\nSashi Bhushan. (') In Appasami's case it was held that the ticket entitling the accused to enter the examination room was \"property\", and in Sashi Bhushmi s case it was held that the term \"property\" included a written certificate to the effect that the accused had attended a course of lectures and had paid up his fees.\n\nOn a parity of reasoning, we have no doubt that looking to the importance and characteristics of a passport, the High Court rightly held that it was property within the meaning of sections 415 and 420 of the Penal Code.\n\nWe may make a reference to lshwarlal Girdharlal Parekh v. State of Maharashtra and others (') also.\n\nThere the question for consideration was whether an order of assessment was \"property\" within the\n\n(1) [1962] 2 S.C.R. 241.\n\n(3) [18931!.L.R.15 All. 210.\n\n(2) [1889] I.L.R. 12 Mad.151. <4J [1969]1 s.~.193.\n\nmeaning of. section 420 I.P.C.\n\nThe charge in.that case was that the appellant dishonestly or fradulently induced the income-true authorities and obtained an assessment order for less income-tax than due. It was held that the order of assessment received by an assessee was \"property\", since it was of greau importance to the assessee, as containing a computation,' of his total assessable income and, as containtion of his tax liability.\n\nThis Court also expressed the view that the word \"property\" did not necessarily mean that the thing, of which delivery was dishonestly desired by the person who cheats, \"must have a money value or a market value, in the hand of the person cheated\". It was held that \"even if the thing has ne money value, in the hand of the person cheated, but becomes a thing of value, in the hand of the person, who may get possession of it as a result of the cheating practised by hini, it would still fall within the connotation of the term 'property' in section 420 I.P.C.\" This decision also lends support to the view we have taken for, as has been stated, a passport is a valuable document.\n\nOur attention has also been invited to In re Packianathan(') and Local Government v. Gangaram.(2) The accused in Packianathan's case was prosecuted for an offence under section 419 read with section 511 of the Penal Code.\n\nHe was going to Ceylon, and he used the permit which stood in the name of one Kumarswami, while his own name was J. Packianathan.\n\nOn seeing the permit the Heaffl1 Officer issued a health certificate. It was held that the health certificate was \"property\" within the meaning of section 415 of the Penal Code and that if a person dishonestly and fraudulently induced the Health Officer to deliver it to him, he was guilty of an offence under section 419 I.P.C. Local Government v. Gangaram was a case where the accused obtained a certificate from the Deputy Inspector of Schools by stating untruly that he .had passed the examination.\n\nIt was held that the certificate was 'property' within the meaning of sections 415 and 420 I.P.C. and that the accused was guilty of an offence punishable under section 420 I.P.C. In taking that view the Nagpur High Court relied on Queen Empress v. Appasami (supra) and Queen Empress v. Sashi Bhushan (supra) on which reliance was placed by this Court in Abhayanand Mishra v.\n\nThe State of Bihar (Supra) referred to above.\n\nSo as passport was a tangible thing, and was a useful document, and could be the subiect of ownership or exclusive possession, it was \"property\" within the meaning of sections 415 and 420 I.P.C. There is therefore nothing wrong with the view which has been taken by the High Court and the appeal is hereby dismissed .. '_fhe appellants who are on bail shall surrender to serve out the remammg sentence.\n\nP.H.P.\n\n(l) AI.R. 1920 Mad. 131 (1)\n\n(2) A.LR. 1922 Nagpur 229.\n\nAppeal dismissed.\n\n...\n\n·--<.._", "total_entities": 57, "entities": [{"text": "NRJSINGHA MURARI CHAKRABORTY & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "NRJSINGHA MURARI CHAKRABORTY & ORS", "offset_not_found": false}}, {"text": "A\n\nSTATE OF WEST BENGAL", "label": "RESPONDENT", "start_char": 35, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "April 12, 1977", "label": "DATE", "start_char": 59, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "NRJSINGHA MURARI CHAKRABORTY & ORS A\n\nSTATE OF WEST BENGAL April 12, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N, SHINGHAL."}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 76, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 95, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "P.K. 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K. Chatterjee and Rathin Das for the Appellanis."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 2580, "end_char": 2595, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and G. S. Chatterjee for Respondents."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 2600, "end_char": 2616, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee and G. S. Chatterjee for Respondents."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 2678, "end_char": 2686, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by SHINGHAL, J.-Thi> appeal by special leave is directed against the judgment of the Calcutta High Court dated June 23, 1971, upholding H the conviction of the appellants for offences under sections 420 znd 420/120B of the Penal Code but reucig their sen.tences."}}, {"text": "sections 420", "label": "PROVISION", "start_char": 2865, "end_char": 2877, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 2898, "end_char": 2908, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 3251, "end_char": 3261, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Passport (Entry Into India) Act, 1920", "label": "STATUTE", "start_char": 4462, "end_char": 4499, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 4896, "end_char": 4901, "source": "ner", "metadata": {"in_sentence": "After referring to sectioQS 3 and 4 of the Act, and rules 4 and 5 of the Rules, this Court observed as follows,-\n\n\" ...... possession of passport, whatever may be its meaning or legal effect, is a necessary requisite for leaving India for travelling abroad."}}, {"text": "(1967] 3 S.C.R. 525", "label": "CASE_CITATION", "start_char": 6012, "end_char": 6031, "source": "regex", "metadata": {}}, {"text": "Patna University", "label": "ORG", "start_char": 7166, "end_char": 7182, "source": "ner", "metadata": {"in_sentence": "The appellant there applied to the Patna University for permission to appear at the M.A. examination as a private candidate, representing that he was a graduate having obtained the B.A. degree in 1951 and had been teaching in a school."}}, {"text": "section 420", "label": "PROVISION", "start_char": 7564, "end_char": 7575, "source": "regex", "metadata": {"statute": null}}, {"text": "section 511", "label": "PROVISION", "start_char": 7586, "end_char": 7597, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7605, "end_char": 7615, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 415", "label": "PROVISION", "start_char": 8035, "end_char": 8046, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8054, "end_char": 8064, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Appasami", "label": "OTHER_PERSON", "start_char": 8194, "end_char": 8202, "source": "ner", "metadata": {"in_sentence": "In Appasami's case it was held that the ticket entitling the accused to enter the examination room was \"property\", and in Sashi Bhushmi s case it was held that the term \"property\" included a written certificate to the effect that the accused had attended a course of lectures and had paid up his fees."}}, {"text": "Sashi Bhushmi", "label": "OTHER_PERSON", "start_char": 8313, "end_char": 8326, "source": "ner", "metadata": {"in_sentence": "In Appasami's case it was held that the ticket entitling the accused to enter the examination room was \"property\", and in Sashi Bhushmi s case it was held that the term \"property\" included a written certificate to the effect that the accused had attended a course of lectures and had paid up his fees."}}, {"text": "sections 415 and 420", "label": "PROVISION", "start_char": 8674, "end_char": 8694, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8702, "end_char": 8712, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1962] 2 S.C.R. 241", "label": "CASE_CITATION", "start_char": 8919, "end_char": 8938, "source": "regex", "metadata": {}}, {"text": "section 420", "label": "PROVISION", "start_char": 9035, "end_char": 9046, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9047, "end_char": 9052, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 420", "label": "PROVISION", "start_char": 10005, "end_char": 10016, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10017, "end_char": 10022, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Packianathan", "label": "OTHER_PERSON", "start_char": 10190, "end_char": 10202, "source": "ner", "metadata": {"in_sentence": "Our attention has also been invited to In re Packianathan(') and Local Government v. Gangaram.(2) The accused in Packianathan's case was prosecuted for an offence under section 419 read with section 511 of the Penal Code.", "canonical_name": "J. Packianathan"}}, {"text": "section 419", "label": "PROVISION", "start_char": 10314, "end_char": 10325, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 511", "label": "PROVISION", "start_char": 10336, "end_char": 10347, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 10355, "end_char": 10365, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ceylon", "label": "GPE", "start_char": 10384, "end_char": 10390, "source": "ner", "metadata": {"in_sentence": "He was going to Ceylon, and he used the permit which stood in the name of one Kumarswami, while his own name was J. Packianathan."}}, {"text": "Kumarswami", "label": "OTHER_PERSON", "start_char": 10446, "end_char": 10456, "source": "ner", "metadata": {"in_sentence": "He was going to Ceylon, and he used the permit which stood in the name of one Kumarswami, while his own name was J. Packianathan."}}, {"text": "J. Packianathan", "label": "OTHER_PERSON", "start_char": 10481, "end_char": 10496, "source": "ner", "metadata": {"in_sentence": "He was going to Ceylon, and he used the permit which stood in the name of one Kumarswami, while his own name was J. Packianathan.", "canonical_name": "J. Packianathan"}}, {"text": "section 415", "label": "PROVISION", "start_char": 10646, "end_char": 10657, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 10665, "end_char": 10675, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 419", "label": "PROVISION", "start_char": 10809, "end_char": 10820, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 10821, "end_char": 10826, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "sections 415 and 420", "label": "PROVISION", "start_char": 11073, "end_char": 11093, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 11094, "end_char": 11099, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 420", "label": "PROVISION", "start_char": 11164, "end_char": 11175, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 11176, "end_char": 11181, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 11207, "end_char": 11224, "source": "ner", "metadata": {"in_sentence": "It was held that the certificate was 'property' within the meaning of sections 415 and 420 I.P.C. and that the accused was guilty of an offence punishable under section 420 I.P.C. In taking that view the Nagpur High Court relied on Queen Empress v. Appasami (supra) and Queen Empress v. Sashi Bhushan (supra) on which reliance was placed by this Court in Abhayanand Mishra v.\n\nThe State of Bihar (Supra) referred to above."}}, {"text": "sections 415 and 420", "label": "PROVISION", "start_char": 11594, "end_char": 11614, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 11615, "end_char": 11620, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1977_3_525_528_EN", "year": 1977, "text": ". -\n\nI 525\n\nNATIOC\\AL TEXTILE CORPORATION AND ANOTHER\n\nSTATE OF MAHARASHTRA AND OTHERS\n\nApril 12, 1977\n\n[A. C. GUPTA AND P. S. KAILASAM, JJ.]\n\nSick Te.tt£le Undertakings (Nationalisation) Act, 1914-Inc1anbra11ce- Meani11g of-\"A'otificatjon issued under Land A'cquisition Act-If an incurnbrance.\n\nThe Stat...-: Government issued two notifications under ss. 4 and 6 of the Land Acquisition Act seeking to acquire certain land belonging to a textile mill.\n\nWhen the Letters Patent Appeal of the Textile mil! was pending before the C High Court the mill was taken over by the Central Government and later the appeJlant \\vas substituted for the original appellant.\n\nBy virtue of s. 3 of the Sick Textile Undertakings (Nationalisation) Act, 1974 the management of every sick textile mill vested absolutely_ in the Central Government and later in the appellant. Section 4(2) of the Act provides that all property which vested in the Central Government shall, by force of such vesting, be freed and discharged from trust, obligation, mortgage, charge, lien and all otlier incu111brances affecting it and any attachment, injunction or decree D or order of a:iy court restricting the use of such property in any manner shall be deemed to have been withdrawn. The appellants• contention that by reason of s. 4(2) the t\\\\'0 notifications must be held to have become ineffective because the .section provides that all property vested in the Central Government shall be free from all incumbrailces affecting it was rejected by the High Court.\n\nDismisstni; the appeal to this Court,\n\nHELD : The High Court was right in its view that the notification& issued E under ss. 4 and 6 of the Land Acquisition Act were not incumbrances and could not be held v have become inoperative on the land vesting in the Central.\n\nGovernment,\n\n[528 BJ\n\n1. The te.:.-m \"incumbrance\" has not been defined in the Act, The dictionary meaning given to incumbrance is a claim, lien or liability attached to property.\n\nAn incu.mbrance in. this sense has to. b~ a liability \"attached to property\", a burden or liability that runs with the land. The notifications issued under the Land Acquis'.tion Act are not a burden or liability attached to the property.\n\nF f528 Bl\n\n2, .. 'Incumbrance\" in the context of s. 4(2) means some burden or liability attached to the property like mortgage, charge, lien.etc. That this is so would appear from the words \"all other_ incumbrances affecting it\".\n\nHaving said that the vesting 'ill be free from tfust etc., sub-s. (2) goes on to add that \"any attachment, injunction or decree .... shall be deemed to be withdra\\\\-n\" upon vesting. If \"incumbrance\" meant any kind of fetter, any attachment, injunction or decree or order restricting use of the propert}' \\\\'ould be included in \"all G other incumbraces\" and it would have be!n quite unnecessary to mention them separately. This means that fetters on the property like attachment injunction or decree o:· order of any court restricting the use of the propertY which are deemed to have been withdrawn upon the property vesting in the Central Government are not really incumbrances within the meaning of the word as used in s, 4(2). [528 E-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 309 of 1976.\n\nAppeal by Special Leave from the Judgment and Order dated the 22nd January, 1975 of the Bombay Flih Court in Appeal No. 106 of 1969 in Misc. Petition No. 320 of 1964. 7-S02SC!n7\n\nSUPREME COURT RE).'ORTS\n\n[1977] 3 S.C.R.\n\nA I. N. Shroff and H. S. Parihar for the Appellanfs.\n\nM. N, Shroff for Respondents 1 and 2.\n\nV. P. Raman, Addi. Sol. Gen!, K. J. John and Shri Narain for Respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J. Ahmedabad Jupiter Spinning Weaving and Manufacturing O:>mpany Limited was the owner of 5\\100 Sq. yds of land torming part of its mill premises at Lower Pare! in Bombay which was sought to be acquired by the Maharashtra Government for a municipal\n\nchool. Notifications under sections 4 and 6 were issued on June 19, 1961 and May 29, 1964 respectively. The company filed a petition in the Bombay High Court challenging the validity of the notifications on several grounds.\n\nA single Judge of the High Court having dismissed the writ petition on August 11, 1969 the company preferred a letters patent appeal.\n\nDuring the pendency of the appeal, the management of the company was taken over by the Central Government on October 8, 1972 under the Industries (Development and Regulation) Act, 1951.\n\nOn September 21, 1974 an ordinance called the Sick Textile Undertakings (Nationalisation) Ordinance, 1974 was promulgated by virtue of which the textile undertaking of the company the management of which had been taken over by the Central Government, vested absolutely in the Central Government with effect from the\n\n\"appointed day\", which was April 1, 1974, and immediately thereafter stood transferred and vested in the National Textile Corporation. The Ordinance was later replaced by the Sick Textile Undertakings (Nationalisation) Act, 1974 (hereinafter referred to as Sick Textile Act).\n\nSections 3 and 4 of the Act are as follows :\n\nAcquisition of rights of owners in respect of sick textile undertakings.\n\n\"3. (1) On the appointed day, eYery sick textile undertaking and the right, title and interest of the owner in relation to every such sick textile undertakings shall stand transferred to, and shall vest absolutely in, the Central Government.\n\n(2) Every sick textile undertaking which stands vested in the Central Government by virtue of sub-section ( 1) shall, immediately after it has so vested, stand transferred to, and vested in, the National Textile Corporation.\n\nGeneral effect of vesting\n\n4. ( 1) The sick textile undertaking referred to in section 2 shall be deemed to include all assets, rights, leaseholds, powers, authorities and t?rivileges and . all_ property, movable and immovable, includm~ lands, buildings, workshops stores instruments, machinery and equipment, cash\n\nbalanes cash on hand, reserve funds, investments and book debts and all other rights and }nterests in, or arising ot of, such property as were immediately before the appomted\n\nNATIONAL TEXTILE CORP. v. MAHARASHTRA (Gupta, J.) 527\n\nday in the ownership, possession, power or control of the owner of the sick textile undertaking, whether within or outside India, aud all books of account, registers and all\n\nother documents of whatever nature relating thereto and shall aclso be deemed to include the liabilities and obligations specified in sub-section (2) of section 5.\n\n(2) All property as aforesaid which have vested in the B Central Government under sub'section ( 1) of section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it, and any attachment, injunction or decree or order of any court res!ricting the use of such property in any manner shall be deemed to have been withdrawn.\" C\n\nThe other sub-sections of section 4 are not relevant for the pree11t purpose.\n\nThe National Textile Corporation applied to the High Court for being substituted in place of the original appellant in the letters patent appeal which was pending and th<_! application was allowed.\n\nThe main contention on behalf of the substituted appellant in the High D Court was that the two notifications under sections 4 and 6 of the Land Acquisition Act must be held to have become ineffective in view of section 4(2) of the Sick Textile Act which provides that all property which vests in the Central Government under section 3 (1) does so free from all \"incumbrances affecting it.\" The High Court dismissed the appeal holding that the notifications under the l..and Acquisition Act were not incumbrances within the meaning of sec- E lion 4(2) of the Sick Textile Act. In the appeal before us filed with special leave obtained from this Court, the National Textile Corporation questions the correctness of the view taken by the High Court.\n\nThus the only question for determination in the appeal is whether the notifications issued under the Land Acquisition Act are incumbrances within the meaning of the word as used in section 4( l) ., f the Sick Textile Act.\n\nSection 3 and the first two sub-sections of section 4 of the Sick Textile Act are the only provisions relevant in this context. Section 3 provides that on the appointed day\n\nevery .sick textile undertaking shall vest absolutely in the Central Government, and then in the National Textile Corporation.\n\nSubsection (1) of section 4 states that the undertakings vesting in the Central Government under section 3 shall be deemed to include all assets, rights and interests in the ownership, possession or control of the owners of such undertakings immediately before the appointed day.\n\nSub-section, (2) of section 4 provides that all property vesting in the Central Government under section 3 shall, \"by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it, and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn\".\n\nCounsel for the appellant argues that sub-section (2) of section 4 is intended to vest the sick textile undertakings in the Central Goven1-\n\nSUPREME COURT REPORTS (1977] 3 s.c.R.\n\nment free from all fetters, and the notifications issued under the Land Acquisition Act wh!ch had the effect of freezing the price of the land were fetters falling m the category of \"other incumbrances\" mentioned in section 4(2) of the Sick Textile Act.\n\nThe term 'incumbrance' has not been defined in the Act.\n\nIn Wharton's Law lexicon incumbrance is described as being a claim, lien or liability, attached to property.\n\nThis is the sense in which the term is ordinarily used.\n\nAn iqcumbrance in this sense has to be a liability \"attached to property\"• it must be a burden or liability that runs with the land, as the High Court has held. But a notification issued by the Government under the Land Acquisition Act not a burden or liability that is attached to the property.\n\nThe sovereign right of the State _to take proceedings for the acquisition of any land for public purpose is similar to its tight to impose a tax on the land which is \"paramount to the . ownership over the land and outside it\". [see The Collector of Bombay v.\n\nNusserwanj, i Rattanji.Mistri & others (1955] 1 SC R 1311 (at 1323).\n\nUnder sub-section (2) of section 4 of the Sick Textile Act all property which have vested in the Central Government under section 3 ( 1) shall be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumorances affecting it, and any attachment, injunction or decree or order of any court restricting the use of such property shall be deemed to have been withdrawn.\n\nCounsel for the\n\nrspondent, State of Maharashtra, submits that the term incumbrance should take colour from the different kinds of burden on the land specified in section 4(2) preceding the words 'all other incumbrances\"; it is ai:gued that incumbrance in the context means some burden or liability that is attached to the property, like mortgage, charge, . lien etc. That t11is is so would also appear from what follows the words \"all other incumbrances affecting it\". Having said that the ves!ffig will be free from trust, obligation, mortgage, charge, lien and all other incumbrances affecting it, sub-section (2) goes on to add that. \"any attachment, injm1ction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn\" upon vesting. If the appellant's construction of the provision were correct. and incumbrance meant any kind of fetter, any attachlnent, injunction or decree or order restricting the use of the property would be included in \"all other incumbrances\" and it would have i>een quite unnecessary to mention them separately.\n\nThis makes it clear that fetters on the property like attachment, injunction or decree or order of any court restricting tlie use of the property which are deemed to have been withdrawn upon the prooerty vesting in the Central Government are not reallv incumbrRnces within the meaning of the word as used in sub-section (2) of section 4. We therefore agree With the High Court that the notifications i.ssued under sections 4 and\n\n6 of the Land Acquisition Act are not incumbrances and cannot be held to have become inoperath-e on the land in question vesting in t'te Central Government.\n\nTlle appeal is dismissed but in the circumstances of tbe case with- H cu.~ nny order as to cost.\n\nPS.R.\n\nAppeal dismissed.\n\n.--._.", "total_entities": 65, "entities": [{"text": "525\n\nNATIOC\\AL TEXTILE CORPORATION AND ANOTHER", "label": "PETITIONER", "start_char": 7, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "NATIONAL TEXTILE CORPORATION AND ANOTHER", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA AND OTHERS", "label": "RESPONDENT", "start_char": 55, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA AND OTHERS", "offset_not_found": false}}, {"text": "April 12, 1977", "label": "DATE", "start_char": 88, "end_char": 102, "source": "ner", "metadata": {"in_sentence": "I 525\n\nNATIOC\\AL TEXTILE CORPORATION AND ANOTHER\n\nSTATE OF MAHARASHTRA AND OTHERS\n\nApril 12, 1977\n\n[A. C. GUPTA AND P. S. KAILASAM, JJ.]"}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 105, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 121, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 352, "end_char": 363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 674, "end_char": 678, "source": "regex", "metadata": {"statute": null}}, {"text": "Sick Textile Undertakings (Nationalisation) Act, 1974", "label": "STATUTE", "start_char": 686, "end_char": 739, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 808, "end_char": 826, "source": "ner", "metadata": {"in_sentence": "By virtue of s. 3 of the Sick Textile Undertakings (Nationalisation) Act, 1974 the management of every sick textile mill vested absolutely_ in the Central Government and later in the appellant."}}, {"text": "Section 4(2)", "label": "PROVISION", "start_char": 855, "end_char": 867, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 1294, "end_char": 1301, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 1651, "end_char": 1662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(2)", "label": "PROVISION", "start_char": 2267, "end_char": 2274, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3189, "end_char": 3217, "source": "ner", "metadata": {"in_sentence": "528 E-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "S02S", "label": "PROVISION", "start_char": 3420, "end_char": 3424, "source": "regex", "metadata": {"statute": null}}, {"text": "A I. N. Shroff", "label": "LAWYER", "start_char": 3472, "end_char": 3486, "source": "ner", "metadata": {"in_sentence": "7-S02SC!n7\n\nSUPREME COURT RE).'ORTS\n\n[1977] 3 S.C.R.\n\nA I. N. Shroff and H. S. Parihar for the Appellanfs."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 3491, "end_char": 3504, "source": "ner", "metadata": {"in_sentence": "7-S02SC!n7\n\nSUPREME COURT RE).'ORTS\n\n[1977] 3 S.C.R.\n\nA I. N. Shroff and H. S. Parihar for the Appellanfs."}}, {"text": "M. N", "label": "LAWYER", "start_char": 3526, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "M. N, Shroff for Respondents 1 and 2."}}, {"text": "V. P. Raman", "label": "LAWYER", "start_char": 3565, "end_char": 3576, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, Addi."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 3595, "end_char": 3605, "source": "ner", "metadata": {"in_sentence": "K. J. John and Shri Narain for Respondent No."}}, {"text": "Narain for", "label": "LAWYER", "start_char": 3615, "end_char": 3625, "source": "ner", "metadata": {"in_sentence": "K. J. John and Shri Narain for Respondent No."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 3689, "end_char": 3694, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. Ahmedabad Jupiter Spinning Weaving and Manufacturing O:>mpany Limited was the owner of 5\\100 Sq."}}, {"text": "Ahmedabad Jupiter Spinning Weaving and Manufacturing O:>mpany Limited", "label": "PETITIONER", "start_char": 3699, "end_char": 3768, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. Ahmedabad Jupiter Spinning Weaving and Manufacturing O:>mpany Limited was the owner of 5\\100 Sq."}}, {"text": "Maharashtra Government", "label": "ORG", "start_char": 3906, "end_char": 3928, "source": "ner", "metadata": {"in_sentence": "in Bombay which was sought to be acquired by the Maharashtra Government for a municipal\n\nchool."}}, {"text": "sections 4 and 6", "label": "PROVISION", "start_char": 3973, "end_char": 3989, "source": "regex", "metadata": {"statute": null}}, {"text": "June 19, 1961", "label": "DATE", "start_char": 4005, "end_char": 4018, "source": "ner", "metadata": {"in_sentence": "Notifications under sections 4 and 6 were issued on June 19, 1961 and May 29, 1964 respectively."}}, {"text": "May 29, 1964", "label": "DATE", "start_char": 4023, "end_char": 4035, "source": "ner", "metadata": {"in_sentence": "Notifications under sections 4 and 6 were issued on June 19, 1961 and May 29, 1964 respectively."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 4086, "end_char": 4103, "source": "ner", "metadata": {"in_sentence": "The company filed a petition in the Bombay High Court challenging the validity of the notifications on several grounds."}}, {"text": "August 11, 1969", "label": "DATE", "start_char": 4242, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "A single Judge of the High Court having dismissed the writ petition on August 11, 1969 the company preferred a letters patent appeal."}}, {"text": "October 8, 1972", "label": "DATE", "start_char": 4415, "end_char": 4430, "source": "ner", "metadata": {"in_sentence": "During the pendency of the appeal, the management of the company was taken over by the Central Government on October 8, 1972 under the Industries (Development and Regulation) Act, 1951."}}, {"text": "Industries (Development and Regulation) Act, 1951", "label": "STATUTE", "start_char": 4441, "end_char": 4490, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 21, 1974", "label": "DATE", "start_char": 4496, "end_char": 4514, "source": "ner", "metadata": {"in_sentence": "On September 21, 1974 an ordinance called the Sick Textile Undertakings (Nationalisation) Ordinance, 1974 was promulgated by virtue of which the textile undertaking of the company the management of which had been taken over by the Central Government, vested absolutely in the Central Government with effect from the\n\n\"appointed day\", which was April 1, 1974, and immediately thereafter stood transferred and vested in the National Textile Corporation."}}, {"text": "April 1, 1974", "label": "DATE", "start_char": 4837, "end_char": 4850, "source": "ner", "metadata": {"in_sentence": "On September 21, 1974 an ordinance called the Sick Textile Undertakings (Nationalisation) Ordinance, 1974 was promulgated by virtue of which the textile undertaking of the company the management of which had been taken over by the Central Government, vested absolutely in the Central Government with effect from the\n\n\"appointed day\", which was April 1, 1974, and immediately thereafter stood transferred and vested in the National Textile Corporation."}}, {"text": "National Textile Corporation", "label": "ORG", "start_char": 4915, "end_char": 4943, "source": "ner", "metadata": {"in_sentence": "On September 21, 1974 an ordinance called the Sick Textile Undertakings (Nationalisation) Ordinance, 1974 was promulgated by virtue of which the textile undertaking of the company the management of which had been taken over by the Central Government, vested absolutely in the Central Government with effect from the\n\n\"appointed day\", which was April 1, 1974, and immediately thereafter stood transferred and vested in the National Textile Corporation."}}, {"text": "Sick Textile Undertakings (Nationalisation) Act, 1974", "label": "STATUTE", "start_char": 4985, "end_char": 5038, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sick Textile Act", "label": "STATUTE", "start_char": 5067, "end_char": 5083, "source": "regex", "metadata": {}}, {"text": "Sections 3 and 4", "label": "PROVISION", "start_char": 5087, "end_char": 5103, "source": "regex", "metadata": {"linked_statute_text": "Sick Textile Act", "statute": "Sick Textile Act"}}, {"text": "section 2", "label": "PROVISION", "start_char": 5755, "end_char": 5764, "source": "regex", "metadata": {"linked_statute_text": "Sick Textile Act", "statute": "Sick Textile Act"}}, {"text": "India", "label": "GPE", "start_char": 6346, "end_char": 6351, "source": "ner", "metadata": {"in_sentence": "v. MAHARASHTRA (Gupta, J.) 527\n\nday in the ownership, possession, power or control of the owner of the sick textile undertaking, whether within or outside India, aud all books of account, registers and all\n\nother documents of whatever nature relating thereto and shall aclso be deemed to include the liabilities and obligations specified in sub-section (2) of section 5."}}, {"text": "section 5", "label": "PROVISION", "start_char": 6551, "end_char": 6560, "source": "regex", "metadata": {"statute": null}}, {"text": "B Central Government", "label": "ORG", "start_char": 6618, "end_char": 6638, "source": "ner", "metadata": {"in_sentence": "(2) All property as aforesaid which have vested in the B Central Government under sub'section ( 1) of section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it, and any attachment, injunction or decree or order of any court res!ricting the use of such property in any manner shall be deemed to have been withdrawn.\""}}, {"text": "section 3", "label": "PROVISION", "start_char": 6665, "end_char": 6674, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7008, "end_char": 7017, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4 and 6", "label": "PROVISION", "start_char": 7376, "end_char": 7392, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(2)", "label": "PROVISION", "start_char": 7472, "end_char": 7484, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 7586, "end_char": 7595, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4( l)", "label": "PROVISION", "start_char": 8190, "end_char": 8203, "source": "regex", "metadata": {"linked_statute_text": "Thus the only question for determination in the appeal is whether the notifications issued under the Land 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"start_char": 8360, "end_char": 8369, "source": "regex", "metadata": {"linked_statute_text": "Thus the only question for determination in the appeal is whether the notifications issued under the Land Acquisition Act", "statute": "Thus the only question for determination in the appeal is whether the notifications issued under the Land Acquisition Act"}}, {"text": "section 4", "label": "PROVISION", "start_char": 8552, "end_char": 8561, "source": "regex", "metadata": {"linked_statute_text": "Thus the only question for determination in the appeal is whether the notifications issued under the Land Acquisition Act", "statute": "Thus the only question for determination in the appeal is whether the notifications issued under the Land Acquisition Act"}}, {"text": "section 3", "label": "PROVISION", "start_char": 8631, "end_char": 8640, "source": "regex", "metadata": {"linked_statute_text": "Thus the only question for determination in the appeal is whether the notifications issued under the Land 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"start_char": 9285, "end_char": 9294, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(2)", "label": "PROVISION", "start_char": 9624, "end_char": 9636, "source": "regex", "metadata": {"statute": null}}, {"text": "Wharton", "label": "OTHER_PERSON", "start_char": 9723, "end_char": 9730, "source": "ner", "metadata": {"in_sentence": "In Wharton's Law lexicon incumbrance is described as being a claim, lien or liability, attached to property."}}, {"text": "notification issued by the Government under the Land Acquisition Act", "label": "STATUTE", "start_char": 10054, "end_char": 10122, "source": "regex", "metadata": {}}, {"text": "(1955] 1 SC R 1311", "label": "CASE_CITATION", "start_char": 10483, "end_char": 10501, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 10539, "end_char": 10548, "source": "regex", "metadata": {"linked_statute_text": "But a notification issued by the Government under the Land Acquisition Act", 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"regex", "metadata": {"linked_statute_text": "But a notification issued by the Government under the Land Acquisition Act", "statute": "But a notification issued by the Government under the Land Acquisition Act"}}, {"text": "section 4", "label": "PROVISION", "start_char": 12349, "end_char": 12358, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4 and\n\n6", "label": "PROVISION", "start_char": 12436, "end_char": 12453, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_529_537_EN", "year": 1977, "text": "SHAHZADA NAND & SONS\n\nTHE COMMISSIONER OF INCOME TAX, PATIALA\n\nApril 12, 1977 f P. N. BHAGWATI, N. L. UNIWALIA AND S. MuRIAzA FAzAL ALI, JJ.J\n\n1-llowable expenditure in computing the profits of the assessee from busuzess-Whether the commission paid by the assessee to its employees an allolvable expenditure u/s. 36(1) (ii) of Income Tax Act.\n\nThe appellants were the sole selling agents of the Oriental Carpet- 1'.fanu- . facturers India Pvt. Ltd. in respect of yarn, cloth and blankets manufactured by them n-; J. for the ses effected by the appellnts, as such sole selling agenrs\n\ncom1ss1on was paid to them by OC]i.f. Since the appellants showed \\'ery\n\nat1sfactory turnover from year to year, OCA-1 started giving to them, in addi- 11on to the usual commissio~ over-riding commission@ 2t per cent on the sales effected by the appellants. Since the turnover of the sales reached the figure of Rs. 54.28 lacs and over-riding commission increased to Rs. 1,13,449/- <luring the previous year corresponding to the assessment year 1963-64, the appellants paid out of the over-riding commission received by them a sum of Rs. 22,690/- (i.e. at the rate of !% of the sales) each to two of their employees viz\" Saheb Dayal and Gurditta ]I.fall since they were primarily responsible for the i.ncreased prosperity of the appellants. The commission so paid viz. Rs. 45,380/- was claimed by the appellants as -a deductible expenditure in .their assessment to income tax for the assessment year 1963-64. The Income Tax Officer disallowed the claim onthe ground that there was no evidence to show that the increase in sales during the relevant accounting year was due to the efforts of Saheb Dayal and Gurditta Mal. The Appellate Assistant Comm.is-_ sioner rejected the appeal preferred to him and held that since no evidence had been produced by the assessee to prove that the activities -of Saheb Dayal and Gurditta 1-fal in the relevant account year were of a nature different from those in th: earlier years so that they put in any extra time or energy in the conduct of _the business of the assessee so as to justify the payment of the commission, it could not be said that the commission was paid for services rendered by them.\n\nThe Tribunal, in further appeal took the same view and held that since there was no proof to show that any extra services were rendered by Saheb Dayal and Gurditta l\\.Ial for which payment of commission in addition to salary and bonus could be justified, commission could not be said to have been paid for services rendered so as to attract the applicability of s. 36(1) (ii) of the Act • . The High Court was also of the same view and answered the reference made to it, in favour of the Revenue.\n\nAllowing the appeal by .special leave, the C.ourt;- . HELD : (!) The sum of Rs. 45,380/- paid by the assessee to Saheb Dayal and Gurditta 1-Ial by way of commission during the relevant accounting year was reasonable, having regard to all the circumstances of the case and it ought to have been allowed as a deductible expenditure u/s. 36(1) (ii) of the Income Tax Act. [537 BJ . (2) Section 36, sub-section. (1) clause (ii) does not postulate that there should be any extra services rendered by an employee before payment of commission to him can b'! justified as an aUowable expenditure. What it requires, ls only this, namely, that com.mission paid to an employee. sl!onld be for son:ie se\"ices rendered by him. It is not necessary that the commISSton should be paid under a contractual obligation. It may be purelyvoluntary.\n\n(3) It is immaterial that the services rendered during the rlevant accout ing year were in no way greater or mor~ onerous than the sef!tces reneed tn the earlier years. There is no such reau1rement under the section and it ts not justified by the language of s. 36, sub-section(!), clause (ii) and indeed if it were pushed to its logical extreme, even payment of bot1US cannot be treated as permissible deduction under that provision.\n\n[534. G-H]\n\n~. --\n\n(4) It is n<>w well-settled that the mere fact that commission is paid exgratla would not necessarily mean that it is unreasonable. Commercial ex4 pediency does not mean that an employer should not make any payment to an employee unless the employee is entitled to it under a contract. What is the requirement of commercial expediency must be judged not in the light of the 19th Century latssez faire doctrine which regarded man as an economic being concerned only to protect and advance his self-interest but in the context of current socio-economic thinking which places the general interest of the com~\n\nmunity above the personal interest of the individual and believes that a business or undertaking is the product of the combined efforts of the employer and the employees and wliere there is sufficiently large profit. after providing for the salary or remuneration of the employer and the employees and other prior charges such as interest on capital depreciation, reserves etc., as part of it should in alt fairness go to the employees. [536 E-GJ\n\n(5) The question whether commercial expediency justified the payment of commission would have to be judged in the light of all the circumstances existing at the material time.\n\nIn the instant case, the assessee felt, on grounds of commercial expediency that a part of the over-riding commission should be paid besides salary aad bonus to its two employees who had worked so well and contributed to the prosperity of the assessee and did make the payment.\n\n[525 AB] Laxmandas Seiram v. C.l.T. Guiarat 50 ITR 789 (Gujarat) approved.\n\n(6) The question whether the amount of the commission is a reasonable amount or not has to be determined with reference to the three factors laid down in s. 36(1)(ii). Though described loosely as conditions, they are not really conditions on the fulfilment of which alone the amount of commi!JSion paid to an employee can be. regarded as reasonable.\n\nThe reasonableness of the amount of commission has to be considered from the point of view of a nor~ mal, prudent businessman, and not on any subjecting standard of the . assessing authority.\n\n[525 CD]\n\nObservation : It is high time that the administration of our tax la\\v recognised the demand of social justice today viz., profit-sharing by the employees and encourag~ it by -adopting a progressive and liberal approach in the applicability of s. 36, subsection (!), clause (ii). [536 HJ\n\nClvIL APPELLATE JURISDICTION : Civil Appeal No. 1011 of 1972.\n\nAppeal by Special Leave from the Judgment and Order dated the 18th August, 1971 of the Punjab and Haryana High Court iu Income Tax Reference No. 17 of 1971.\n\nS. T. Desai, (Mrs.) A. K. Verma and Shri Narain for the Appellant.\n\nT. A. Ramachandran and R. N. Sachthey for Respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-The short question that arises for determination in this appeal is whether certain commi.ssion paid by the assessee to two of its employees is an allowable expenditure in computing the profits of the assessee from business.\n\nThe assessee is a registered firm which at all material times consisted of five partners, namely, Chaman Lal, Madan Lal, Harbans Lal, Raj Mohau and Saheb Dayal representing a trust.\n\nChaman Lal was the son of Saheb Dayal and Raj Mohan was the son of one Gurditta Mal.\n\nDuring the accounting year relevant to the assessment year 1963-64, Chaman Lal and Harbans Lal had 'their own independent factories and hence they were not attending\n\nto the business of the assessee and Raj Mohan too was not actively A associated with the conduct of 1he business of the assessee as he was working with the Oriental Carpet Manufacturers India Pvt. Ltd. (hereinafter referred to as OCM). lhus, from amongst the partners . only Madan Lal was looking after the day-to-day management of the business of the assessee and he was assisted by Saheb Dayal and Gurditta Mal who were engaged as employees of the assessee.\n\nSaheb Dayal and Gurditta Mal were looking after the business of the assessee B since a long time and they were each paid remuneration of Rs. 1000/- per month.\n\nThe business of the assessee consisted of sole selling agency of OCM in respect of yarn, ctoth and biankets manufactured by OCM and for the sales affected by the assessee as such sole selling agents, commission was paid to the assessee by OCM.\n\nThe figures show that the business of the assessee prospered from year to year from 1959-60 onwards and there was a o,>radual increase in th.e tum- C over of the assessee which jumped from the figure of Rs. 39.99 lacs .for the assessment year 1962-63 to the figures of Rs. 54.28 lacs for the assessment year 1963-64. Since the assessee showed very satisfactory turnover from year to year, OCM started giving to the assessee, in addition to the usual commission, over-riding commission at the rate of 2t % on the sales affected by the assessee and the over-riding commission thus received by the assessee during the previous years corres- D ponding to the assessment year 1960-61 to 1963-64 was as follows:\n\nAssessment year\n\n1960-61 1961-62 1962-63 1963-64\n\nAmount Received Rs. 35,964/- Rs.\n\n6L818/- Rs. 83,922/- Rs. 1,13,449/- E\n\nSince the turnover of the sales reached the figure of Rs. 54.28 lacs and overriding commission increased to Rs. 1,13,449/- during tb.e previous year corresponding to the assessment year 1963-64, the assessee decided to give to each of Saheb Dayal and Gurditta Mal, who were looking after the business and were primarily responsible for the increased prosperity of the assessee, commission at the rate of F !% of the sales out of 2t% overriding commission received from OCM and each of these two employees was accordingly paid by the assessee a snm of Rs. 22,690/- by way of commission.\n\nThe aggregate amount of commission paid to Saheb Dayal and Gurditta Mal thns came to Rs. 45,380/- and this amount of commission was claimed by the assessee as a deductible expenditure in its assessment to income tax for the assessment year 1963-64. The Incori1e Tax Officer, disallow- G ed the claim of the assessee on the ground that there was no material produced by the assessee which would \"prove the nature of services rendered by these two gentlemen in lieu of which the commission is claimed. to have been paid\" and there being no evidence to show that the increase in sales during the relevant accounting year was dne to the efforts of Saheb Dayal and Gnrditta Mal, the claim for deduction of the amount of commffision as a business exoenditure remained un- H proved.\n\nThe assessee appealed against the disallowance of the amount of comn1ission but the Appellate Assistant Commssioner in appeal affirmed the disallowance on the ground that no evidence had been\n\nproduced by the. assessee to prove that the activities of Saheb Dayal and Gurditta Mal in the relevant account year . were of a nature different from those in the earlier years or that they put in any extra time or energy in the conduct of the business of the assessee so as to justify the payment of the commission and hence it could not he said that the commisson was paid for services rendered by them. The matter was carried in further appeal before the Tribuna~ but the Tribunal also took the same view and held that since there was no proof to show that any services were rendered by Saheb Dayal and Gurditta Mal for which payment of commission in addition to salarv and bonus could be justified, commission coqld not he said to have been paid for services rendered so as to attract the applicability of section 36, subsection (1), clause (ii). The Tribunal observed that it was not possible to say \"that the increase in the turnover in the year under appeal was due to the extra efforts put in by these two employees or that the employees had worked in the hope of receiving extra commission\" and since bonus equivalent to three months' sa:ary was paid to Sahe.b Dayal and Gurditta Mal in addition to their .salary during the releval!t\n\naccounting year, any extra services rendered by them, if any, \"should be deemed to have been covered by the payment of this bonus\". Since in the view taken by the Tribunal it was necessary that there should be .some extra services rendered by Saheb Dayal and Gurditta Mal for which payment of commission could be said to be justified and there was nothing to show that any such extra services were rendered by them, the Tribunal came to the conclusion that the payment of commi5sion could .not be said to be justifieµ on grounas of commercial expediency and section 36, sub-section (1), clause (ii) had no application.\n\nThe assessee being aggrieved by the order made by the Tribunal applied for a reference of the question of law arising out of the order of the Tribunal and on the application of the assessee, tne following question of law was referred for the opinion of the High Court :\n\n\"Whether on the facts and circnmstances of the case, the sum of Rs. 45,380/- paid to L. Gurandittamal and L.\n\nSahebdiyal, employees of the applicant firm is pennissible deduction in computing the business income of tlie applicant?\"\n\nThe High Court answered the question in favour of the Revenue.\n\nThe view taken by the High Court was that in order to attract the applicability of section 36, sub-section (1), clause (ii), it was necessary that the payment of commission should be for services rendered and since there was no evidence led on behalf of the assessee to show that any extra services were rendered by Saheb Dayal and Gurditta Mal, which were responsible for increase in the sales and consequent enlargement, of the overriding commission, there was no justification for payment of commission to them and the commission paid could not be said to be for services rendered.\n\nThe High Court in this view held that section 36, sub-section (1), clause (ii) was not applicable and no claim for deduction could be sustained under it.\n\nThe correctness of this decision is impinged in the present appeal preferred by the assessee with special leave obtained from this Court.\n\nNow, before we proceed to consider, the question which Jrises for A determination before us, we must make it clear at the out set that m the present case the genuineness of the payment of commission made to Saheb Dayal and Gurditta Mal was at no time doubted by the Revenue authorities.\n\nIt was not the case of the Revenue that this payment was not made or that it was sham or bogus. If that had been the finding, there would have been an end of the case of the assessee.\n\nNo question would then have arisen for considering the applicab1lity B. of section 36, sub-section (1), clause (ii). No payment having been made, no deduction would have been permissible. But here the commission was paid : it was a genuine payment and th~ only question was whether it was deductible as an allowable expenditure under section 36, sub-section (1), clause (ii). Section 36, sub-section (1) provides for making of various deductions in computing the income of an assessee under the head : \"Profits and Gains of Business or Pro- C fession\" and one such deduction is set out in clause (ii) which, as it stood at the material time during the assessment year 1963-64, read as follows :\n\n\"36(1) (ii) Any sum paid to an employee as bonus or commission for services rendered, where such sum would not have been payable to him as profit or dividend if it had D not been paid as bonus or commission :\n\nProvided that the amount of bonus or commission is reasonable with reference to -\n\n(a) the pay of the employee and the conditions of his service;\n\n(b) the profits of the business or profession for the previous year in question; and\n\n( c) the general practice in similar business or profession.\"\n\n. Saheb Dayal and Gurditta Mal were admittedly employees of the assessee.\n\nThey were each paid a salary of Rs. 1000/- per month and F for the previous year relevant to the assessment year 1963-64 bonus equivalent to three months' salary was also paid to each of them. The Income Tax Officer disallowed even this salary and bonus paid to Saheb Dayal and Gurditta ]Mal on the ground that there. was nothing to show that any services were rendered by them and the payment of salary and bonus appeared to be ex-gratia. But this decision was reversed in appeal by the Appellate Asi; istant Commissioner who G foll?wing his .earlier order dated 12th December, 1967 in the appeal agamst the assessment to tax for the assessment year 1962-63, allowed the payment <?f salary and. b?nus as a deductible expenditure.\n\nThe Appellate Ass1stnt Comm1Ss10ner c:early recognised that Saheb Dayal and Gurd1tta Mal were employees of the assessee and were attend!ng to the bus!ness of the assessee as such employees since a\n\nIon~ time ai; i; ct Gurd1tta Mal was in fact \"a seasoned and experienced H busmessman and he looked after the assessee's transactions with OCM\n\nand on behal~ of the assessee advised OCM in connection with designs etc. The Tnbunal also found that Saheb Dayal and Gurditta Mal\n\n\"were looki11g after the business of the assessee firm for a long time\".\n\nThus, there can be no doubt that services were rendered by Saheb Dayal and Gurd1tta Mal to the assessee and for these services, besides salary and bonus, co=ission was paid to them, because, according to\".the assessee, during the relevant accounting year, there was considerable enlargement in the turnover of the sales with consequent increase in the amount of overriding commission and the assessee felt, on grounds orf co=ercial expediency, that a part o~ the overriding commission should be paid to the two employees who had worked so well and contributed to the prosperity of the assessee.\n\nThe question is whether this commission qualifies for deduction as an allowable expenditure under section 36, sub-section (1), c; ause (ii). The only ground on which the High Court negatived the. applicability of section 36, sub-section (1), clause (ii) was that during the relevant accounting year Saheb Dayal and Gurditta Mal rendered the same services which they were rendering in earlier years and no extra services were rendered by them which could justify payment of commission in addition to salary and bonus.\n\nThe High Court appeared to take the view that there must be correlation between the payment of commission and the services rendered and since commission was paid by the assessee for the first time during the relevant accounting year, there must be some extra services rendered by Saheb Dayal and .Gurditta Mal in that year over and above the usual services rendered by them in the earlier years.\n\nSince, according to the High Court, there was no proof that any extra services were rendered by Saheb Dayal and Gurditta Mal, the High Court held that the payment ot co=ission could not be said to be for services rendered within the meaning of section 36, sub-section (1), clause (ii). This view taken by the High Court is, in our opinion, plainly erroneous. Section 36, sub-section (1), clause (ii) does not postulate that there should be any extra services rendered by an employee before payment of commission to him can be justified as on a!Jowable expenditure.\n\nWhat it requires is only this, namely, that commission paid to an employee should be for services rendered by him. For example, if an empioyee has not rendered any services at all duri.ng the relevant accounting year, no commission can be paid to him which would be an alTowable expenditure.\n\nThere must be some services rendered by an employee and where commission is paid for the services so rendered, section 36 sub..section (I), clause (ii) would apply and the commission to the extent to which it is found reasonable would be an al:owable expenditure under that provision. 11 is not necessary that the commis.sion should be paid under a contractual obligation.\n\nIt may be purely voluntarv.\n\nBut it must be for services rendered and here services were in fact rendered by Saheb Dayal and Gurditta Mal during the relevant accounting year. It is true that the services rendered by these two employees during the relevant accounting year were in no way greater or more onerous than the services rendered by theJI! in the earlier years, but that is immaterial. There is no such requtrement and the argument based on it cannot be sustained. It is not 1ust1Hed by the lani'Uage of section 36, sub-section (1). clause (ii) and indeed, if it were pushed to its logical extreme, it wou!d be difficult to 5U?ort\n\neven payment of bonus as a permissible rled11rt•<m under that prov1s10n.\n\nOf course, the circumstance that no additional services are rendered\n\nby an employee would undoubtedly be of some relevance in deter- A mining the reasonableness of the amount of commission but it would have to be considered along with other circumstances and the qnestlon whether commercial expediency justified the payment of commission wou:d have to be judged in the light of all the circumstances existing at the material time.\n\nThis was the view taken by the Gujarat High Court in Laxmandas Sejram v.\n\nCommissioner of Income-Tax, Gujarat,(') and we wholly accept that view. It is, therefore, no B answer to the applicability of section 36, sub-section (1), clause (11) to say that no extra services were rendered by Saheb Dayal and Gurditta Mal during the relevant accounting year.\n\nThe amount of commission having been paid for services admittedly rendered by them, the only question would be whether it was reasonable under section 36, sub-section (1), clause (ii).\n\nTurning to the provisions of section 36, sub-section (l), clause (ii), we find that the proviso to that clause lays down three factors for the purpose of determining the reasonableness of the commission paid to an employee. The question whether the amount of the commission is a reasonable amount or not has to be determined with reference to these three factors. Sometimes these three fators are loosely described as conditions but they are not really conditions on the fulfilment of which alone the amount of commission paid to an employee can be regarded as reasonable. They are merely factors to be taken into account by the Revenue authorities in determining the reasonableness of the amount of commission.\n\nIt may be that one of these factors yields a negative response.\n\nTo take an example, there may be no general practice in similar business or profession to give commission to an emp:oyee, but, yet, having regard to the other circumstances, the amount of commission paid to the employee may be regarded as reasonable.\n\nWhat the proviso requires is merely that the reasonableness of the amount of commission shall be determined with reference to the three factors.\n\nBut it is well settled that these factors are to be considered from the point of view of a normal, prudent businessman.\n\nThe reasonableness of the payment with reference to these factors has to be judged not on any subjective standard of the assessing authority but from the point of . view of commercial expediency.\n\nLet us see whether the amount of commission paid to Saheb Dayal and Gurditta Mal in the present case can be said to be reasonable from this stand point. It is clear froin the order of the Tribunal that reliance was placed by the Tribunal mainly and substantially on the fact that the nature. of the work done by Saheb Dayal and Gurditta Mal remained unchanged in the relevant accounting year and there was nothing to. show that the increase in the turnover during the relevant accounting year was as a result of any extra efforts made by t!Jese two employees and hence it could. not be said that there were any special circums•ances which warranted the payment of commission to them. But, as already pointed out above, the commission paid to an emn'.oyee cannot be branded as unreasonable merely because the employee ha.s done in the relevant accounting year the same work which he was doing in the earlier years.\n\nEven where the nature of the work has remained the same, commercial expediency mav require pavment of commission to an employee.\n\nHere, Saheb Dayal and Gurditta\n\n(I) 50 I.T.R. 763:\n\nMal were each receiving a salary of Rs. 1000/- per month and besides this salary, there were admittedly no other perquisites given to them.\n\nThey were the persons attending to the business of the assessee and in fact Gurditta Mal was an experienced and seasoned businessman and it was he who was advising OCM in regard to designs etc. and he and Saheb Dayal were primarily responsible for the flourishing state of the business.\n\nThe turnover of the sales of the assessee steadily rose from 1960-61 and in the relevant accounting year, it reached the exciting figure of Rs. 54.28 lacs.\n\nSo also the overriding commission which started with the modest figure of Rs. 35,964/- in the accounting year relevant to the assessment year 1960-61 went on steadily increasing from year to year until it reached the figure of Rs. 1, 13,449 /- in the relevant accounting year.\n\nThe assessee, therefore, felt that in view of the tremendous progress in the business which was largely the result of the services rendered by Saheb Dayal and Gurditta Mal, a part of the overriding commission should be paid to them, so that they may carry a sense of satisfaction that their efforts have been suitably rewarded and they may have an added incentive to work and may be spurred to greater efficiency in the future.\n\nIt may be noted that the overriding commission of the assessee during the relevant accounting year was Rs.1,13,449/- and the total profit was Rs. 3,08,034/- and if out Qf this! total profit of Rs. 3,08,034/-, an aggregate sum of Rs. 45,380/- was paid to Saheb Dayal and Gurditta Mal as commission, it is diflicu:t to see how such payment could be regarded as unreasonable. It is true that there was no obligation on the assee to make payment of this commission to Saheb Dayal and Gurditta Mal, but it is now well settled that the mere fact that commission is paid ex-gratia would not necessarily mean that it is unreasonable.\n\nCommercial expediency does not mean that an employer should not make any payment to an employee unless the employee is entitl\\:d to i& under a contract. Even where there is no contract, an employer may pay commission to an employee if he thinks that it would be in the interest -of his business to do so. It is obvious that no business can prosper unless the employees engaged in it are satisfied and contented and they feel a sense of involvement and identification and tbis can be best secured by giving them a stake in the business and allowing them to share in the profits.\n\nIt would indeed be a wise step on the part of an employer to offer incentive to his employees by sharing 'a part of his profits. with them.\n\nThis W?uld not only be \"s<J?d husine&S: but a¥.lo good ethics. It would be 1n consonance With Gandhian concept ·; is alsomodem socialistic thought which, with its deeply rooted faith in social and economic democracy, regards the employees as much as the 61llployer as co-sharers in the business. If an employer -earns profits to which the employees have necessarily contributed by putting in their labour, there is no reason why the employer should not share a part of these profits with the employees.\n\nThat is the demand of social justice today and it is high time that the administration of our tax law recognised it and encouraged sj:Jarine of pr-Ofim by employers with emoloyees by adopting a progressive and libec ral approach in the applicability of section 36, sub-section (1), clause (ii).\n\nWhat is the requirement of commercial expediency must be judged not in the light of the 19th Century laissez faire doctrine which regarded man as an economic being concerned only to protect and\n\n• '\n\n. SHAHZADA NAND \"· C.J.T. (Bhaf!Wati, J.) 537\n\nadvance his self-interest but in the context of current socio-economic A thinking which places the general interest of the community above the personal interest of the iqdividual and believes that a business or undertaking is the product of the combined efforts of the employer and the employees and where there is sufficiently large profit, after providing for the salary or remuneration of the employer and the employees ana other prior charges such as interest on capital, depreciation, reserves etc., a part of it should in all fairness go to the employees.\n\nWe are.\n\nB therefore. of the view that the s11m of Rs. 45,380/- paid by the asBeSsee to Saheb Dayal and . Gurditta Mal by way of commission during the relevant accounting year was reasonable having regard. to all the circumstances of the case and it ought to have been allowed as a ddnctible expenditure under section 36, sub-section (I), clause (ii).\n\nWe c.; ordingly allow the appeal, set aside the judgment of the C High Court and answer the question referred by the Tribunal in the affirmative in favour of the assessee.\n\nThe Commissioner will pay the cos\\3 0i the appeal as also of the reference to the assessee.\n\nS.R.\n\nAppeal allowed .", "total_entities": 62, "entities": [{"text": "SHAHZADA NAND & SONS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SHAHZADA NAND & SONS", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF INCOME TAX, PATIALA", "label": "RESPONDENT", "start_char": 22, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX, PATIALA", "offset_not_found": false}}, {"text": "1977 f P. N. BHAGWATI", "label": "JUDGE", "start_char": 73, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "S. MuRIAzA FAzAL ALI, JJ", "label": "JUDGE", "start_char": 115, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 36(1)", "label": "PROVISION", "start_char": 310, "end_char": 318, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 327, "end_char": 341, "source": "regex", "metadata": {}}, {"text": "Saheb Dayal", "label": "OTHER_PERSON", "start_char": 1205, "end_char": 1216, "source": "ner", "metadata": {"in_sentence": "of the sales) each to two of their employees viz\" Saheb Dayal and Gurditta ]I.fall since they were primarily responsible for the i.ncreased prosperity of the appellants.", "canonical_name": "Sahe.b Dayal"}}, {"text": "Gurditta ]I.fall", "label": "LAWYER", "start_char": 1221, "end_char": 1237, "source": "ner", "metadata": {"in_sentence": "of the sales) each to two of their employees viz\" Saheb Dayal and Gurditta ]I.fall since they were primarily responsible for the i.ncreased prosperity of the appellants.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "Gurditta Mal", "label": "LAWYER", "start_char": 1690, "end_char": 1702, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer disallowed the claim onthe ground that there was no evidence to show that the increase in sales during the relevant accounting year was due to the efforts of Saheb Dayal and Gurditta Mal.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "Gurditta", "label": "LAWYER", "start_char": 1897, "end_char": 1905, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Comm.is- sioner rejected the appeal preferred to him and held that since no evidence had been produced by the assessee to prove that the activities -of Saheb Dayal and Gurditta 1-fal in the relevant account year were of a nature different from those in th: earlier years so that they put in any extra time or energy in the conduct of the business of the assessee so as to justify the payment of the commission, it could not be said that the commission was paid for services rendered by them.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "Gurditta l\\.Ial", "label": "LAWYER", "start_char": 2378, "end_char": 2393, "source": "ner", "metadata": {"in_sentence": "The Tribunal, in further appeal took the same view and held that since there was no proof to show that any extra services were rendered by Saheb Dayal and Gurditta l\\.Ial for which payment of commission in addition to salary and bonus could be justified, commission could not be said to have been paid for services rendered so as to attract the applicability of s. 36(1) (ii) of the Act • .", "canonical_name": "Gurditta ]I.fall"}}, {"text": "s. 36(1)", "label": "PROVISION", "start_char": 2585, "end_char": 2593, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36(1)", "label": "PROVISION", "start_char": 3053, "end_char": 3061, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 3104, "end_char": 3114, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 3809, "end_char": 3814, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36(1)(ii)", "label": "PROVISION", "start_char": 5746, "end_char": 5758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 6389, "end_char": 6394, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 6655, "end_char": 6666, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) A. K. Verma and Shri Narain for the Appellant."}}, {"text": "A. K. Verma", "label": "LAWYER", "start_char": 6675, "end_char": 6686, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) A. K. Verma and Shri Narain for the Appellant."}}, {"text": "Narain", "label": "OTHER_PERSON", "start_char": 6696, "end_char": 6702, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) A. K. Verma and Shri Narain for the Appellant."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 6723, "end_char": 6741, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and R. N. Sachthey for Respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6746, "end_char": 6760, "source": "ner", "metadata": {"in_sentence": "T. A. Ramachandran and R. N. Sachthey for Respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 6822, "end_char": 6830, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-The short question that arises for determination in this appeal is whether certain commi.ssion paid by the assessee to two of its employees is an allowable expenditure in computing the profits of the assessee from business.", "canonical_name": "Bhaf!Wati,"}}, {"text": "Chaman Lal", "label": "OTHER_PERSON", "start_char": 7158, "end_char": 7168, "source": "ner", "metadata": {"in_sentence": "The assessee is a registered firm which at all material times consisted of five partners, namely, Chaman Lal, Madan Lal, Harbans Lal, Raj Mohau and Saheb Dayal representing a trust."}}, {"text": "Madan Lal", "label": "OTHER_PERSON", "start_char": 7170, "end_char": 7179, "source": "ner", "metadata": {"in_sentence": "The assessee is a registered firm which at all material times consisted of five partners, namely, Chaman Lal, Madan Lal, Harbans Lal, Raj Mohau and Saheb Dayal representing a trust."}}, {"text": "Harbans Lal", "label": "OTHER_PERSON", "start_char": 7181, "end_char": 7192, "source": "ner", "metadata": {"in_sentence": "The assessee is a registered firm which at all material times consisted of five partners, namely, Chaman Lal, Madan Lal, Harbans Lal, Raj Mohau and Saheb Dayal representing a trust."}}, {"text": "Raj Mohau", "label": "OTHER_PERSON", "start_char": 7194, "end_char": 7203, "source": "ner", "metadata": {"in_sentence": "The assessee is a registered firm which at all material times consisted of five partners, namely, Chaman Lal, Madan Lal, Harbans Lal, Raj Mohau and Saheb Dayal representing a trust.", "canonical_name": "Raj Mohau"}}, {"text": "Raj Mohan", "label": "OTHER_PERSON", "start_char": 7285, "end_char": 7294, "source": "ner", "metadata": {"in_sentence": "Chaman Lal was the son of Saheb Dayal and Raj Mohan was the son of one Gurditta Mal.", "canonical_name": "Raj Mohau"}}, {"text": "Oriental Carpet Manufacturers India Pvt. Ltd.", "label": "ORG", "start_char": 7652, "end_char": 7697, "source": "ner", "metadata": {"in_sentence": "During the accounting year relevant to the assessment year 1963-64, Chaman Lal and Harbans Lal had 'their own independent factories and hence they were not attending\n\nto the business of the assessee and Raj Mohan too was not actively A associated with the conduct of 1he business of the assessee as he was working with the Oriental Carpet Manufacturers India Pvt."}}, {"text": "OCM", "label": "ORG", "start_char": 8182, "end_char": 8185, "source": "ner", "metadata": {"in_sentence": "The business of the assessee consisted of sole selling agency of OCM in respect of yarn, ctoth and biankets manufactured by OCM and for the sales affected by the assessee as such sole selling agents, commission was paid to the assessee by OCM."}}, {"text": "Gnrditta Mal", "label": "LAWYER", "start_char": 10439, "end_char": 10451, "source": "ner", "metadata": {"in_sentence": "to have been paid\" and there being no evidence to show that the increase in sales during the relevant accounting year was dne to the efforts of Saheb Dayal and Gnrditta Mal, the claim for deduction of the amount of commffision as a business exoenditure remained un- H proved.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "section 36", "label": "PROVISION", "start_char": 11559, "end_char": 11569, "source": "regex", "metadata": {"statute": null}}, {"text": "Sahe.b Dayal", "label": "OTHER_PERSON", "start_char": 11912, "end_char": 11924, "source": "ner", "metadata": {"in_sentence": "The Tribunal observed that it was not possible to say \"that the increase in the turnover in the year under appeal was due to the extra efforts put in by these two employees or that the employees had worked in the hope of receiving extra commission\" and since bonus equivalent to three months' sa:ary was paid to Sahe.b Dayal and Gurditta Mal in addition to their .salary during the releval!t\n\naccounting year, any extra services rendered by them, if any, \"should be deemed to have been covered by the payment of this bonus\".", "canonical_name": "Sahe.b Dayal"}}, {"text": "section 36", "label": "PROVISION", "start_char": 12551, "end_char": 12561, "source": "regex", "metadata": {"statute": null}}, {"text": "L. Gurandittamal", "label": "OTHER_PERSON", "start_char": 12969, "end_char": 12985, "source": "ner", "metadata": {"in_sentence": "45,380/- paid to L. Gurandittamal and L.\n\nSahebdiyal, employees of the applicant firm is pennissible deduction in computing the business income of tlie applicant?\""}}, {"text": "L.\n\nSahebdiyal", "label": "OTHER_PERSON", "start_char": 12990, "end_char": 13004, "source": "ner", "metadata": {"in_sentence": "45,380/- paid to L. Gurandittamal and L.\n\nSahebdiyal, employees of the applicant firm is pennissible deduction in computing the business income of tlie applicant?\""}}, {"text": "section 36", "label": "PROVISION", "start_char": 13264, "end_char": 13274, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 13805, "end_char": 13815, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 14609, "end_char": 14619, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 14868, "end_char": 14878, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 14910, "end_char": 14920, "source": "regex", "metadata": {"statute": null}}, {"text": "Gurditta ]Mal", "label": "LAWYER", "start_char": 16089, "end_char": 16102, "source": "ner", "metadata": {"in_sentence": "The Income Tax Officer disallowed even this salary and bonus paid to Saheb Dayal and Gurditta ]Mal on the ground that there.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "12th December, 1967", "label": "DATE", "start_char": 16375, "end_char": 16394, "source": "ner", "metadata": {"in_sentence": "But this decision was reversed in appeal by the Appellate Asi; istant Commissioner who G foll?wing his .earlier order dated 12th December, 1967 in the appeal agamst the assessment to tax for the assessment year 1962-63, allowed the payment <?"}}, {"text": "Gurd1tta Mal", "label": "LAWYER", "start_char": 16619, "end_char": 16631, "source": "ner", "metadata": {"in_sentence": "The Appellate Ass1stnt Comm1Ss10ner c:early recognised that Saheb Dayal and Gurd1tta Mal were employees of the assessee and were attend!ng to the bus!ness of the assessee as such employees since a\n\nIon~ time ai; i; ct Gurd1tta Mal was in fact \"a seasoned and experienced H busmessman and he looked after the assessee's transactions with OCM\n\nand on behal~ of the assessee advised OCM in connection with designs etc.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "section 36", "label": "PROVISION", "start_char": 17785, "end_char": 17795, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 17900, "end_char": 17910, "source": "regex", "metadata": {"statute": null}}, {"text": ".Gurditta Mal", "label": "LAWYER", "start_char": 18501, "end_char": 18514, "source": "ner", "metadata": {"in_sentence": "The High Court appeared to take the view that there must be correlation between the payment of commission and the services rendered and since commission was paid by the assessee for the first time during the relevant accounting year, there must be some extra services rendered by Saheb Dayal and .Gurditta Mal in that year over and above the usual services rendered by them in the earlier years.", "canonical_name": "Gurditta ]I.fall"}}, {"text": "section 36", "label": "PROVISION", "start_char": 18846, "end_char": 18856, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 18961, "end_char": 18971, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 19572, "end_char": 19582, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 20347, "end_char": 20357, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 21013, "end_char": 21031, "source": "ner", "metadata": {"in_sentence": "This was the view taken by the Gujarat High Court in Laxmandas Sejram v.\n\nCommissioner of Income-Tax, Gujarat,(') and we wholly accept that view."}}, {"text": "section 36", "label": "PROVISION", "start_char": 21182, "end_char": 21192, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 21480, "end_char": 21490, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 21552, "end_char": 21562, "source": "regex", "metadata": {"statute": null}}, {"text": "Mal", "label": "PETITIONER", "start_char": 24114, "end_char": 24117, "source": "ner", "metadata": {"in_sentence": "Here, Saheb Dayal and Gurditta\n\n(I) 50 I.T.R. 763:\n\nMal were each receiving a salary of Rs."}}, {"text": "Gandhian", "label": "OTHER_PERSON", "start_char": 26848, "end_char": 26856, "source": "ner", "metadata": {"in_sentence": "It would be 1n consonance With Gandhian concept ·; is alsomodem socialistic thought which, with its deeply rooted faith in social and economic democracy, regards the employees as much as the 61llployer as co-sharers in the business."}}, {"text": "section 36", "label": "PROVISION", "start_char": 27511, "end_char": 27521, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhaf!Wati,", "label": "JUDGE", "start_char": 27781, "end_char": 27791, "source": "ner", "metadata": {"in_sentence": "SHAHZADA NAND \"· C.J.T. (Bhaf!Wati, J.) 537\n\nadvance his self-interest but in the context of current socio-economic A thinking which places the general interest of the community above the personal interest of the iqdividual and believes that a business or undertaking is the product of the combined efforts of the employer and the employees and where there is sufficiently large profit, after providing for the salary or remuneration of the employer and the employees ana other prior charges such as interest on capital, depreciation, reserves etc.,", "canonical_name": "Bhaf!Wati,"}}, {"text": "s11", "label": "PROVISION", "start_char": 28407, "end_char": 28410, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 28674, "end_char": 28684, "source": "regex", "metadata": {"statute": null}}, {"text": "C High Court", "label": "COURT", "start_char": 28781, "end_char": 28793, "source": "ner", "metadata": {"in_sentence": "We c.; ordingly allow the appeal, set aside the judgment of the C High Court and answer the question referred by the Tribunal in the affirmative in favour of the assessee."}}]}
{"document_id": "1977_3_538_555_EN", "year": 1977, "text": "THIRU JOHN & ANR.\n\nRETURNING OFFICER & ORs.\n\nApril 12. 1977\n\n[V. R. KRISHNA lYER, R. S. SARKARIA AND JASWANT SINGH, JJ.]\n\nConstitmion of India, Article 84(b)-Appellant who was underaged to contest Raiya Sabha elections of 1914 gets his age in the electoral Roll alone altered butnot in other documents from 14-5-1946 to 14-5-1943 by producing an extract of the Baptism Register-Whether the result of the election materially affected on th-e improper acceptance of nomination-Representation of the People Act (Act 43), 1951, Sections 83, 97, 100 and 101.\n\nProof of disqualifications in a11 election petition-Onus lies on the petitioner initially.\n\nEvidence Act (Act I), 1812--SectioiiS 17, 18, 19, 20 and 21-Admit'orrs made in several documents ante litem motam-Burden of proof shifts on the maker to show that they are erroneous.\n\n\"Continuing candidate\"-Requisites to be a continuing candidate-Whether non-allotment of a \"basket\" or \"parcel\" under Rule 74 awomatically excludes him-Conduct of Election Rules, 1961-RulcN 71 (1 ), 74 and 15(3 ), 79, 80 lllld 81(2).\n\nIn the biennial elections of 1974 for filling six vacancies to the Rajya Sabha from the State of Tamil N adu, there were eight contestants, including both the appellants and one R. Mohanarangam, the petitioner in Election Petition No. 1 of 1974. The requisite quota to secure the election of a candidate was fixed\n\nat ~O +1=3201 and the appellant John secured 3700 votes. While the\n\nappellant Subrahmanyam secured 300 votes, Mohanarangam failed to secure any. The rest of them secured more than the quota, thus leaving \"surplus votes\" for transfer within the meaning of Rule 71 (6} of the Conduct of Election Rules.\n\nIn the election petitions filed by Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the ground that on March 12, 1974, the date of the scrutiny of the nominations, he was less than 30 years of age and as such he did not possess the qualifications as to age laid down under Art. 84(b) of the Colllltitution that the improper acceptance of John's nomination has materially affected the election. The petitioners prayed that the election of Sri John be declared void and set aside under s. 100 of the Representation of Peoples Act, 1951.\n\nEach of the petioners claimed that in the event of Sri John's election being set aside, he be declared elected under s. 101 of the Act.\n\nA recrimination petition No. 1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote, he, in the event of the election of Sri John being set aside, was not entitled to be declared elected in the place of John.\n\nThe trial Judge of the High Court held that on the date of the scrutiny of nominations Sri John being less than 30 years of age was not qualified under Art. 84(b) of the Constitution to contest the election to the Rajya Sabha and accepting the election petition pro tanto set aside John's election. The trial Judge, however, dclined. o grant further declaration under s. 101 in favour of either of the election petitioner.\n\nDismissing the appeals, the Court, HELD : (1) From the evidence on record it stood clearly established that on the date of the scrutiny of nominations Sri John was less than 30 years of age\n\n. THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 53 9\n\nand in view of Art. 84(b) of the Constitution he was not competent to contest A the election for the Rajya Sabha. His nomination was, therefore, improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it co11cerned the returned candidate, Sri John materially affected the result • of the election.\n\n[547 F-G]\n\n(2) The onus of proving that on the date fixed for the scrutiny of nominations, a contestant was less than 30 years of age was on the election petitioners.\n\nIn the. instant case, the petitioners had amply discharged this onus by bringing on record over-whelming documentary evidertce of a cogent and convincing B character. This documentary evidence includes no less than a don previous admissions and declarations made between March 1964 and July 1973 by Sri John himself about his age, to the effect that he was born in 1946 and that his date of biith was 14.5.1946. Apart from the evidence of these prior admissions the election petitioners had brought other documentary evidence viz., the school record purportedly signed by John's guardian, Secondary School Leaving Certificate and various other documents of the educational institutions, Marriage Register, Bar Council Record and Church records etc. pointing to the conclusion that Sri John was born on 14.5.1946 and not on 14-5-1943. [542 D-H, 543 A-B- F] C\n\n( 3) It is well-settled that a party's admission a~ defined in sections 17 to 20 fulfilling the requirements of section 21, Evidence Act is substantive evidence proprio vigore. An admission, if clearly and unequivocally made is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that \"what a party himself admits to be true may reasonably be presumed to be so\" and until the presumption was rebutted the fact admitted must be taken to be establish'!d. In the instant case, there are a number of clear admissions in prior declarations precisely and deli- D berately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight.\n\nThey had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrect. [543 C-E]\n\n(4) Under Rule 71 (1) of the Conduct of Election Rules, 1961, \"Contimiing candidate\" means any candidate not elected and not excluded from the poll at any given time. Two elements must, therefore, be satisfied before a candidate E can be said to be a Continuing candidate. He should be a 'candidate not lJ' elected\" and further he must not be excluded from the poll at any given time.\n\nIn the instant case Sri Mohanarangam fulfils both these conditions. [550 B,\n\n552 CJ\n\n(5) The contention that an essential prerequisite to the continuance of a candidate is the allotment of a \"basket\" or \"parcel\" under Rule 74 and only such candidate is entitled to the allotment of a basket who at the end of the count gets some vote to his credit and opens his account, and since Mohanaran- F gam did not get any vote whatever he stood automatically excluded is not correct. There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the Returning Officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, be has not received any valid vote.\n\n[552 E-HJ\n\n(6) Sub-Rule (3) of Rule 75 which requires the Returning Officer to exclude from the poll a candidate whose score ts the lowest-governs the ounting\n\nof votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected. Sub-Rule (3) of Rule 75 has no application G •· lo. the instant case.\n\n[552 GJ\n\n(7) Rule 80 can have no application because it comes into operation at a stage \"after all surpluses have been transferred\". That stage never arrived in the instant case because in the first counting itself all the six seat~ were filled . up, six candidates (including Shri John) having received the requisite quota of first preference votes. Nor did the stage for annlyinJl Rule 81 arise. because at the end of the first count, no vacancy remained unfilled.\n\nIn the instant case Shri Mohanaran!l\"am did not get automaticallv PXclurfed. Roth hParid ri H Subrabmanvam were \"continuing candidates\". Sri Subrahmanyam coulrt not be\n\ndPdar~\"d \"'\"ctl\"r'l as he had 'not obtained the required quota of 3201 votes.\n\n[522 H; 553 A]\n\nSUPREME COURT REPORTS [1977] 3 s.c.R..\n\n( ) (8) The wtio decidendi. of Vinvqnmlla v. Krmappa is app.licale only where, a there are tvo contcstmg candtdates and one of them ts dLqualified; (6) and the electun 1s. on the basis of single non-transferable vote. In the instant cnse, the elcllon tn question was not held by mode of single non-transferable vote, acco:dmg to which a simple rn:ajority of votes secured ensures the success of a can~1date, but by proportionul representation with single transferable vote under wt; Uh system the uccess of a candidate normally depends on bis securing the equJSJte Q';!Ota. Shn Subrahmanyam wns not the sole surviving continuing candtdate left m the field, after exclusion of the disqualified candidate Sbri John. (5H G-H, 555 A] '\n\nViswaiJ(rtha v. Konappa AIR 1969 S. C. 604, distinguished.\n\n(9) All the votes that had polled in favour of Shri John who bas been found by the court to be statutorily disqualified for election cannot be reardcd as thrown away and in consequence, the appellant Shri Subrahmanyam who secured 300 votes as against none obtained by Shri Mohanaraogam cannot be dedarcd elected. Shri Subrahmanyam was neither the sole continuing candidate nor bad he secured the requisite quota of votes. It is nobody's case that the electors\n\nwho voted for Shri John had at the time of election knowledge or notice of the statutory disqualification of this candidate. On the contrary. they must have been under the impression that Shri John was n candidate whose nomination\n\nhad been validly accepted by the Returning Officer. Had the electol'11 notice of Shri John's disqualification, how many of them would have voted for him and hew many for the oth::r continuing candidates including Sarvashri Subrah manyam and Mohanarallgam and in whnt preferential ordr. remains a question in the realm of speculation and unpredictability. [553 BEJ\n\nR. 1\\1. SeJ!I(u/rl v. G. V. Pai AIR 1969 SC 692 @ p. 701, followed.\n\ncr\\, L APPELLATE JURlS'DICTION: Civil Appeals Nos. 1895-f896 and 1907 of 1974. (From the Judgment and Da.:crce dated the 14-10-1974 of the Madras High Court in Election Petitions Nos. 1 and 2 of 1974).\n\nR. N. Chaudhary and Mrs. V. D. Klwmw, for the appellant in CAs 1896/74.\n\nt . ... ...\n\nl'. S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74.\n\nT. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No. 10 in CA 1895, R%p. No. 6 inCA 1896 and respondent No. 7 inCA 1907.\n\nA. V. Rtmgam und Miss A. Subslzaslzini, for respondent No. tin nil the rsppe<sls and for respondent No. 2 in 1907.\n\nJ. M. Klwmuz, !or repondcnt No. 8 in CAs. 1895-1896.\n\nTho: Judgment of the Court was ddivcred by\n\nSARKARL\\, J. The basic facts gi, ing riso to these appeals being common, the fiame wiJ.l be disposed of under one judgment.\n\nNotice eallin~ for nominations to be filed before 3 P.M. ott 11-3-1974, for filling six vacancies to the Rajya. Sabha from the State of Tamil Nadu in the biennial elections was issued on March 4,· 1974.\n\neleven CllJldidates tiled their nominations. On scrutiny which was held on Mah 12, 1974. all those nominations weN found to be.\\•atid. On\n\n. --- .. .\n\nTHIRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 541\n\n14-3-1974 which was the last date fixed for withdrawi; ll, three candidates withdrew their nominations leaving eight in the field.\n\nThe poll was held on 21-3-1974. Counting of votes took place on the same. date.\n\nThe result was published, according to which, the contesting candtdates secured the votes noted against their names as follows :\n\n1. Shri Khadar Sha\n\n2. Shri Khaja Mohideen .3. Shri V. Subrahmanyam\n\n4. Shri C. D. Natarajan\n\n5. Shri R. Mohanarangam 6 .Shri S. Ranaganathan\n\n7. G. Laksbmanan\n\n8. D. C. John @ Valampuri John\n\n3500 3700\n\n300 3500\n\nNil\n\nThe requisite quota to secure the election of a candidate was fixed at 22,400\n\nand candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared elected.\n\nTwo Election Petitions were filed by the unsuccessful candidates.\n\nElection Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam. The petitioners prayed that the election of Shri D. C. John be declared void and set E aside under s. 100 of the Representation of the People Act, 1951.\n\nEach of the petitioners claimed that in the event of Shri John's election being set aside, he be declared elected under s. 101 of the Act. In addition to the Returning Officer, the Electoral Registration Officer and the Chief Election Commissioner, all the seven contestants were impleaded as respondents.\n\nThe election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, be was tess than\n\n30 years• of age and as such, did not possess the qualification as to age laid down in Article 84(b) of the Constitution. On these premises it was pleaded that the nomination of Shri John was improperly accepted and in consequence thereof, the result of the election has been materially affected.\n\nA recriminatory petition No. 1/74 under s. 97 read with s. 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 1/\n\n74, opposing Mohana Rangam's relief for declaration under s. 101.\n\nThe recriminator alleged that sine the petitioner in E.P. 1/74 had not secured any vote, he. in the event nf the election of Shri JohH being set aside, was entitled o be declared elected in the place of shri John.\n\nThe learned trial Judae of the High Court tried all the three petitions tC\"eether and decided them by a common judgment.\n\nB-502 SCI/77\n\nSUPREME COURT REPORTS [1977] 3 s.c.R.\n\nThe rial Cour_t held that on the date of the scrutiny of his nomination, Shn John bemg less than 30 years of age, was not qualified under Art. 84(b) of the Constitution, to contest the election to the Rajya Sabha.\n\nOn this short ground his election was set aside and the Election Petitions were accepted pro tanto. The trial Court, however, declined to grant the further declaration under s. 1_01 in favour of either of the election-petitioners.\n\nAggrieved by that judgment, Shri John, has filed in this Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrahmanyam Civil Appeal 1907 of 1974. .\n\nThe first question that falls to be determined in these appeals is : Whether S!tri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him'!\n\nMr. Chowdhary appearing for the appellant (Shri John) contends that the burden of proving that Shri John, was at the material date below 30 years of age was on the election-petitioner and that the latter had faiJed to discharge such burden.\n\nFurther grievance of Shri Chowdhary is that the High Court had wrongly rejected the oral and documentary evidence produced by Shri John.\n\nWe find these contentions wholly devoid of merit.\n\n.While it is true that the onus of proving that on the date fixed for the scrutiny of nominations, Shri John was less than 30 years of age, was ort the election-petitioners, they had amply discharged this onus by bringing on record overwhelming documentary evidence of a cogent and convincing character.\n\nThis documentary evidence includes no le~ tha'n. a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973. These\n\ndocuments containing such declarations constituting Shri John's admi8sions are':\n\n (i) Ex.P.7-Application for Pre-University Examination.\n\n(ii) Ex.P-9-Application for B.A. Examination.\n\n(iii)\n\n(iv)\n\n(v)\n\n(vi)\n\nEx. P-14-Application for appearing in University\n\nExamination.\n\nEx.P-15-Application for the first B.G.L. Examination. ··\n\nEx.P-17-Application for admission to B.G.L. Examination.\n\nR'{.P-18-Application for second B.G.L. Examination April 1972.\n\n(vii) Ex.P-19-Application for second BGL Examination, October 1972.\n\n(viii) Ex.P-21-Application for admission into Law Col- . lege. .\n\n(iv) Ex.-22-Application for B.L. Degree Examination.\n\ni ..\n\nTHIRU JOHN v. RETURNING OFFICER. (Sarkaria, ].)\n\n (x) Ex.P-23(a), (b) & (c)-Applications dated 23-7- 'A 1~73 for enrolment as Advocate submitted to the Bar Counci1.\n\n(xi) Ex.P-27-Voters Card containing declaration of his age as 28 years signed by Shri John.\n\n(xii) Ex.P-87_:__a Book written by Shri John, containing a B . passage on its page 18 suggesting the inference that Shri John was born in 1946.\n\nAll these documents aforesaid contain admissions made by Shri John that he was born in 1946.\n\nIn several of these documents he declared 14-5-1946 as his date of birth.\n\nIt is well settled that a party's admission as defined in Sees. 17 to C 20, fulfilling the requirements of Sec. 21, Evidence Act, is substantive evidence proprio vigore.\n\nAn admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that \"what a party himself admits to be true may reasonably be presumed to be\n\nso\" and until the presumption was rebutted the fact admitted must be faken to be established.\n\nThe above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John.\n\nThese admissions were made ante litem motam during the decade preceding the election in question.\n\nThese admissions were entitled to great weight.\n\nThey had shifted the burden on the appellant E (Shri John) to show that they were incorrect.\n\nThe appellant had miserably failed to show that these admissions were incorrect.\n\nApart from the evidence of these prior admissions the electionpetitioners had brought other documentary evidence, also, pointing to the conclusion that Shri John was born on 14-5-1946 and not on 14-5-1943.\n\nThis evidence consisted of-\n\n\"'\\ .1. (a) Exhibit P-1 an entry in the records of St. Xavier's -i College School, wherein the date of Shri John's birth is recorded as 14-5-1946;\n\n(b) Ex.P .3 which purports to have been signed by the guardian of Sbri John, declaring his age as 14-5-1946;\n\n(c) Ex.P-2, the E.Ss.L.C. signed by Rama Prabhu, the\n\nSecretary to the Commission for . Government Examinations.\n\nThis Certificate was 1ssued under the\n\nauthority of law.\n\nH .. . ,\n\n2. Ex.P-4-Secondary School Leaving Certificate wherein ·\n\nShri John's date of birth is entered as 14-5-1946.\n\nSUPREME COURT REPORTS\n\n[1977] 3 S.C.R.\n\n3. Ex.P~SO, copy of the Fort St. George Gazette dated 19-2-1964 showing Shri John's date of birth as 14:5-1946.\n\n4. (a) Ex.P-5 the transfer certificate issued by the St.\n\nXavier's High School.\n\n(b) Ex.P-10 transfer certificate issued by the Principal\n\nof the College.\n\n(c) Ex.P~13 entry in the admission register of the College for joining the first year B.G.L.\n\n(d) Ex.P-1ntry in the admission register of the College, for admission to second year B.G.L. Class.\n\n(e) Ex. P-10-entry in admission register of the College,\n\n5. Bar Council Records relating to Ex. P~23.\n\n6. Marriage Register, Ex.P-29, containing in the column __.,_ captioned \"Age\" as against the name of Shri John, the entry \"26 years\", and the date of his baptism as 19-10-\n\n1946.\n\n7. Ex.P.30, Periodical report from the Churches regarding marriages solemnised therein, required under the Indian Christian Marriage Act 1872, showing that Shri John'~ marriage was solemnised in St. Francis Xavier's Church, Madras, on 6-4-1972 by Fr. G. K. Swami, and that on the date of this marriage he was 26 years of age.\n\n8. Exhibits Pll, P-ll(a), P-12 and P-12(a) record'S of T.E.L.C. Kabis High School showing Sbri John's date of birth as 14-6-1946.\n\n9. Ex.P-28-Book-Varalatril Kalaignar Written by Shri John containing biographical sketch. Therein, his date of birth is mentioned as 14-10~1946.\n\nThe petitioner had also examined witnesses who testified with regard to these documents and the facts appearing therein. The learned trial Judve has carefully discussed and evaluated this documentary and oral evidence. No material error or illegality on the part of the learned Judge in appreciating this evidence has been pointed out.\n\nThe learned Judge found that the entries, Ex.P.29, in the Marriae Re!!ister are of QTeat evidentiary value. Mr. Chaudhury assails this finding.\n\nAccording to him, no legal provision or rule of oractice requires that the date of Baptism should be entered in such RePister.\n\nSecondly, it is url!ed that the date of baptism given therein is 19-10-46, which stands falsified by the evidence of Rev. Fr. Rosario, the Parish Priest who had baptised Shri John about 7 days after his birth in 1943.\n\nIt is furtl1er arl!ued that the best evidence as to Sbn John's date of birth could be that of the entry in the Public irth Register maintained under authMitv of law and that the election-petitioner on whom the onus lay, did not produce that evidence.\n\n.......\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 545\n\nWe Hnd no substance in these contentions.\n\nIn the witness box both Shri John (RW. 1) and his elder brother (RW 3 )admitted thei.J.1 respective signatures on this entry (Ex.P. 29) in the Marriage Register.\n\nThey however, contended that the information about the date of baptism was not supplied by them to the Priest who solern; llsed the marriage and made this entry.\n\nThe elder brother (RW. 3) however, admitted that they had signed the Register, notwithstanding the fact that the age of Shri John was mentioned therein as 26 years. Both the brothers however, admitted that Shri John's marriage was solemnised in St. Francis Xavier Church on 6-4-1972.\n\nIn view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29\n\nstood proved, and the entries therein were entitled to great weight.\n\nAs regards the Birth Register of 1946, th<~ election-petitioner made repeated attempts to get the same summoned and produced in Court.\n\nThe process issued by the Court was returned with the report that the Register of 1946 was untraceable.\n\nThereafter, a direction was issued by the Court to trace and produce it.\n\nA search for this record was made by the record remained untraceable.\n\nThe Election-Petitioner contended before the High Court that Shri John had by the exercise of his influence, prevented the production of this record. The High Court found this charge to be incorrect. Nevertheless, it held that the Public Birth Register of 1946 had been lost long ago.\n\nThis being the case, the non-production of the Birth Register of 1946, must be held to be a neutral circumstance.\n\nTl!e discrepancy pointed out by Shri Choudhury as to the date of the baptism of Shri John, takes us to the evidence produced by him. shri John brought on the record three documents, R1, R2 and R4.\n\nR-1 is an extract from the Baptism Register kept by the Ovari-Tuticorin Diocese.\n\nThe document R -1 according to the High Court was inducted in a questionable manner, without even an application for it.\n\nThis was issued by the Parish Priest, Peter Royan (R W 5), and purports to be\n\na copy of an entry in the Baptism Register, which according to the admission wrung out from RW 5, had itself been re-written and copied F from the originaL The Parish Priest conceded that he had burnt the original because it was in a very bad condition.\n\nThe High Court found and we think rightly-that this explanation of non-production of the original was thoroughly unsatisfactory, and unbecoming of any Christian, more so, one connected with Church affairs, that by this\n\n'unholy act' of burning the register which was a violation of Canon 777.\n\nParagraph 676, the witness (RW 5) had done \"great disservice to G\n\nChristianity and greater disservice to the cause of truth\".\n\nSince R-1 was only a copy of a copy (R 4), the preparation of which was itself suspect and the explanation about the non-production of the original was palpably unbelievable, these documents were rightly ruled out of evidence.\n\nR.W. 2, Rev. Fr. Rosario stated that he positively remembered H that in the year 1943 when he was the Parish }Jriest, he ha~ baptis~ Shri John.\n\nThe witness was an old man. He had no Baptism Regts-\n\n\n(1977] 3 S.C.R.\n\nter or any other contemporaneous record to refresh his memory with regard to an event which took place more than a quarter of a century back.\n\nHe was deposing to a fact in issue merely from memory.\n\nHuman memory being fallible, it was hazardous to accept his ipse dixit.\n\nThe oral evidence of the witness could not be preferred to the entry in the Marriage Register, Ex. P 29, showing that Shri John on the date of his marnage, which took place in 1972, was 26 year old and had been baptised in 1946. It is true that there is a slight discrepancy between the date of his baptism as entered in the Marriage Register and the date of his birth as admitted by him in the various applications he submitted for admission to various classes in College or for enrolment as an Advocate.\n\nBut there is no discrepancy with regard to the year of birth as well as baptism being 1946. In Ex.P. 29, the date of his baptism is entered as 19-10-46.\n\nThe biodata appearing in the book Ex.P.28, which, according to the publisher, RW-4, was entered by him on the basis of information derived from Shri John, gives h~ date of birth as 14-10-1946, while all the numerous public records, the declarations constituting the prior admissions of Shri John, produced in evidence by the Election-Petitioner, consistently show Shri John's date of birth as 14-5-1946.\n\nWe have been taken through the oral evidence rendered by Shri John (RW 1) and his elder brother (RW 3). Their interested testimony makes interesting reading.\n\nShri John was asked in cross-examination to state how he came to contest the Rajya Sabha elections ? He replied that, as usual, .in his,\n\nvillage Ovari, he was having a discussion with the members of . his community to settle a dispute between owners of catamaran and meciianised boats. A suggestion was made to him that he should contest an election to Parliament as a representative of the fishermen community. Shri John told them that \" .. an election to the Council of.\n\nStates is fast approaching and the only thing is I cannot enter the Rajya Sabha, because I have not complete4 the age of 30 years.\"\n\nShri John was further questioned by the Counsel\n\n\"Then what happened ?\"\n\nHe replied:\n\n\"My eldest brother was one among those who were assembled there.\n\nHe told me along with another elderly gentleman, whose name I am not able to recollect now :\n\n\"What non-sense are you talking ? You have compfeted 30 years positively.\" Moreover, they told me in addition : 'We have to refer to the Registers kept in the Church'\" .\n\n. With this idea put into his head, the witness next morning along with his brother visited the village Church and met Rev. Fr. Peter\n\n(R.W. 5) and asked for the Baptism Register relating to the witness.\n\nRev. Fr. Peter took out the Register, Ex. R-4, and turned the leaves, and to the surprise of the witness, he saw his date of birth noted therein as 14-5-1943. Thereafter, Shri John approached the ChiEf\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 547\n\nElectoral Officer, Madras, and made an application (Ex.P.23) on A 26-2-1974 for correction and change of the date of his birtli, as noted in the Electoral Roll, fro~ '14-5-1946' to '14-5-1943'. His application was allowed and the entry in the Electoral Roll as to age was amended accordingly on the 6th or 7th March 197 4.\n\nOn further cross-examination, Shri John frankly conceded that before seeing the Baptism Register in the second week of February 1974, he had all along been under the genuine impression that he was born on B 14-5-1946. It was only on seeing the Register that he came to believe that he was born in 1943.\n\nIt is to be remembered that this Baptism Register (R. 4) is the same, which was found by the High Court to be a suspicious record, prepared in suspicious circumstances, wholly unworthy of reliance.\n\nRW. 3, the elder brother of Shri John also stated that when the elders of the village asked him to contest the election, he replied that c\n\nhe had not attained the proper age, i.e. \"31 years\" which was necesary to contest the election.\n\nImmediately, the witness intervened : \"What non-sense you are talking ? You have attained the proper age ..... . you must go and refer in the Church\". About their going to Prieilt Rev. Fr. Peter Royan at the village Church and scrutinising the Baptism Register his version is more or less the same as of RW-1.\n\nThis witness, as already noticed, admitted that at the time of his brother, Shri John's marriage, he had alo signed the entry, Ex.P-29, in the Marriage Register on 6-4-1972. He further conceded that in this entry Ex. P-29, the age of the bridegroom, Shri John, was mentioned as 26 years.\n\nHe further conceded that in Ex. P. 29, the date of Shri John's baptism is noted as 19-10-1946. But the witness, wanted the Court to have it believed that he had signed this entry withc, ut looking into it.\n\nThis version was too incredible to be swallowed without demur. The conclusion was inescapable that on 6-4-1972, Shri J. D. Mohan, RW-3, the eldest brother of Shri John, whose parents were dead, knew that the particulars of this entry snowing his age to be 26 years on 6-4-1972, and the date of his baptism in 1946, were true.\n\nThat is why he and his brother John, without raising any objection, affixed their signatures thereto in token of its correctness.\n\nWe need not dilate on the question of Shri John's age further. AY aspects of this issue have been discussed threadbare by the High Court.\n\nSuffice it to say, that from the evidence on record it stood clearly established that on the date of the scrutiny of the nominations, Shri John was less than 30 years of a_ge and in view of Article 84(b) of the Constitution he was not competent to contest the election for the Rajya bha.\n\nHis nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election.\n\nShri John's election was thus rightly set aside by the High Court.\n\nNow we come to the second question, whether Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared elected in lieu of Shri John whose election has been set aside ?\n\nSUPREME COURT REPORTS [1977] 3 s.c.R.\n\nShri Ramaswami, learned Counsel for this appellant, has advanced alternat1ve arguments. It is subn1ttted that since Shri Mohana Rangam did not secure any vote at aU, he had ceased to be a continuing candidate and stood automatically excluded, leaving only Shri Subramanyam, sole continuing candidate in the field. It is emphasised that shri Rangam bas not filed any recriminatory petition.\n\nIn this situation, it is maintained, Shri Subramanyam would be deemed to have been elected, although he had secured only 300 votes.\n\nReference in this connection has been made to Rule 81(2) of the Conduct of Election Rules, 1961.\n\nThe alternative argument of Shri Ramaswami is that since Sbri John was not a qualified candidate, the votes cast in his favour have to be treated as thrown away, and even if both Shri Mohan Rangam and Shri Subramanyam are assumed to be continuing candidates, the surplus votes cast in favour of the five successful candidates had to be transferred and redistributr.d in favour of these continuing candidates.\n\nIt is urged that for this purpose the Court should send for and scrutini-se\n\nthe haJlot papers for further counting.\n\nShri Ramaswami further pointed out that the observations of this Court in Viswanatha Reddy v.\n\nKonappa Rudrappa NadgandaC) to the effect, that the votes cast in favour of the disqualified candidate are to be treated as thrown away, are equally applicable to the elections for filling vacant seats in the Council of States, notwithstanding the fact that these elections are held according to the system of proportional representation with a single transferable vote whereunder there is no question of obtaining majority of valid votes, but only the required quota.\n\nIn support of his contentions Shri Ramaswami has copiously referred to the treatise, the Single Transferable Vote by K. V. Krishnaswamy Aiyar published in 1946, and the relevant provisions of the Conduct of Election Rules, 1961 (for short, referred to as the Election Rules).\n\nThe provisions material for our purpose are contained in Part VII of the Election Rules.\n\nShri K. V. Krishnaswamy Aiyar in his book, The Single Transferable Vote (1946 Edn.) page 23, sums up the general principles of this mode of election, thus :\n\n\"The Single vote is transferable from one nominee to another and that takes place in two contingencies where there would otherwise be a wastage of votes.\n\nThey are :\n\n(I) when a candidate obtains more than what is required for his success and therefore has an unnecessary surplus; ~\n\n(2) When a candidate polls so few votes that be has absolutely no chance and therefore the votes nominating him are liable to be wasted.\" ·:-\n\nRelevant Rules in Part VII of the Election Rules are modulated on the principles enunciated by Shri Aiyar in the aforesaid boOk.\n\nThe\n\n(l) A.J.R. 1969 S.C. 604.\n\nTJ-liRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 549\n\nmaterial provisions are contained in Rule 2(1)(c), 67, 70, 71, 73 A to 81 and 85. ~\n\nUnder the scheme and system envisaged by these Election Rules, each elector has only one vote, irrespective of the number of seats to be filled.\n\nBut that single vote is transferable from one candidate to another. The ballot paper bears the names of the candidates, and the elector marks on it his preferences for the candidates by denoting it B with the figures 1, 2, 3, 4 and so on against the names chosen by him and this denotation is understood to be alternative in the order indicated (vide Aiyar's The Single Transferable Vote), The figure 1 set by the elector opposite the name of a candidate means \"first preference\";\n\nthe figure 2 set opposite the name of a candidate, the \"second preference\", and so on [Rule 71 (ii) ].\n\nTI1e minimum number of valid votes requisite to secure the return of a candidate at the election is C called the quota.\n\nAt an election where only one seat is to be filled, every ballot paper is deemed to be of the value of 1 at each count, and the quota is determined by adding the values credit to all the candidates, and dividing the total by 2, and adding 1 to the quotient, jgnoring the remainder, if any, and the resulting number is the quota, vide, Rule 75 ( 1). At an election where more than one seat is to be filled, every ballot paper is deemed of the value of 100 and the quota D is determined by adding the values credited to all the candidates, and dividing the total by a number which exceeds by 1 the number of vacancies to be filled, and adding 1 to the quotient ignoring the re~ mainder, if any, and the resulting number is the quota (Rule 76).\n\nThe computation in the preliminary process is as under :\n\nThe returning officer first deals with the covers containing the postal ballot papers, and then opens the ballot boxes, counts the baUot papers and sorts out and rejects the ballot papers found invalid.\n\nA ballot papef Ts deemed invali<l on which- ·\n\n(a) the figure 1 is not marked; or\n\n(b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or\n\n(c) the figure 1 and some other figures are set opposite the name of the same candidate; or\n\n(d) there is any mark or writing by which the elector can be identified (Rule 73).\n\nAfter. rjecting the invalid papers, the returning officer (a) arranges thi remammg ballot papers in parcels according to the first preference recorded for each candidate; (b) counts and records the number of\n\npapes in each parcel and the total number; and (c) credits to each H candidate the value of the papers in his parcel.\n\nHe then determines\n\nhe quota in accordance with Rule 7 5 (1 ) , or Rule 7 6, if the election\n\nts to fill one seat or more than one seat, as the case may be.\n\n\nIf (at any election held for filling more than one seat) at the end of any count or a_t the end of the transfer of any parcel or sub-parcel of an excluded candtdate the value of ballot papers credited to a candidate is equal to, or greater than the quota, that candidate shall be declared elected (Rule 78). If at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus is transferred in accordance with the provisions of Rule 79, to the continuing candidates indicated in the ballot papers of that candidate as being next in order of the electors' preference [Sub-Rule (1) of Rule 79] \"Surplus\" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub-rule (6) of Rule 71]. \"Continuing candidate\" means any candidate not elected and not excluded from the poll at any given time [Sub-rule ( 1) of Rule 71].\n\nIf more than one candidate have a surplus, the largest surplus is .dt with first and the others in order of magnitude, but every surplus ansmg on the first count is dealt witth before those arising on the second count and so on.\n\nWhere there are more surJ>luses than one to distribu~. and two or more surpluses are equal, regard shall be had to the ongmal votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original votes are equal,, the returning officer decides by lot which candidate shall have his surplus first distributed. [Sub-rules\n\n(2) & (3) of Rule 78]. \"Original Vote\", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate.\n\nIf the surplus of any candidate to be transferred arises from original votes only, the returning officer shall examine all the papers in the parcel belonging to that candidate, divide the unexhausted papers into subparcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers [Clause (a) of sub-rule\n\n(4) of Rule 78]. \"Exhausted paper\" means a ballot par on which no further preference is recorded for a continuing candidate, provided that a paper shall be deemed to have become exhausted whenever-(a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or\n\n(b) the name of the candidate next in order of preference, whether continuing .or not, is marked by a figure not falling consecutively after some other fiure on the ballot paper or by two or more figures [Sub- Rule ( 3) of Rule 71].\n\nThe Returning Officer has to ascertain the value of the papers in each sub-parcel and of all the unexhausted papers. If the vaJue of the unexbausted papers is equal or less than the surplus, be shall transfer all the unexhausted papers t th~ value at which they were received by the candidate whose surplus ts bemg transferred. If the value of the unexhausted papers is greater than the surpJus, he shall transfer the sub-parcels of unexhausted papers nd the value arwhich each paper shall be transferred shall be ascertatned by dividing the surplus by the total number of unexhausted papers [Sub- Rule (4) of Rule 781.\n\nSub-Rule (5) indicates the procedure where the surplus of any candidate to be tranferred arises frol!l transferred as\n\nwell as oricinal votes.\n\nAll papers in th\" parcel or sub-parcel of !Ul elected candidate not tansferred under •hi~ rule have to set apart as finally dealt with [Sub~Rule (7) of Rule 78].\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 5 51\n\nRule 80 epeaks of exclusion of candidates lowest on the ooll: It A roods :\n\n\"80. Exclusion of candidates lowest on the poll.\" (1) If after all surpluses have been transferred as hereinbefore provided, the number of candidates elected is less than the required number, the returning officer shall exclude from the\n\npoll the candidate lowest on the poll and shall distribute his unexhausted papers among the continuing candidates according to the next preferences recorded thereon; and any exhausted papers shall be set apart as finally dealt with.\n\n( 2) The papers containing original votes of an excluded candidate shall first be transferred, the transfer value of each\n\npaper being one hundred.\n\n( 3) The papers containing transferred votes of an excluded candidate shall then be transferred in the order of the transfers in which, and at the value at which, he obtained them.\n\n( 4) Each of such transfers shall be deemed to be a separate transfer but not a separate count.\n\n(5) If, as a result of the transfer of papers, the value of votes obtained by a candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further papers shall be transferred to him.\n\n( 6) The process directed by this rule shall be repeated on E the successive exclusion one after ano'her of the candid1tes lowest on the poll until such vacancy is fi.lled either by the election of a candidate with the qota or as hereinafter provided.\n\n(7) If at any time it becomes necessary to exclude a candidate and two or more candidates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values of their original votes are equal the candidate with the smallest value at the earliest count at which these candidates had unequal values shall be excluded.\n\n( 8) If two or more candidates are lowest on the poll and each has the same value of votes at all counts the returning officer shall decide by lot which candidate shall be excluded.\"\n\nRule 81 deals with the filling of the last vacancies. It may also be extracted in full because a good deal of argument is founded on it. It proTides:\n\n\"81. Filling the last vacancies.-( 1) When at the end of H any count the number of continuing candidates is reduced to the number of vacancies remaining unfilled, the continuing candidates shall be declared elected;\n\n\n(1977] 3 S.C.R.\n\n(2) When at the end of any count only one vacancy remains unfilled and the value of the papers of some one candidate exceeds the total value of the papers of all the other continuing candidates together with any surplus not transferred, that .candidate shall be declared elected.\n\n(3) When at the end of any count only one vacancy re-- mains unfilled and there are only two continuing candidates and each of them has the same value of vote's and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candidate to be\n\nelected.\"\n\nThe stage is now set for dealing with the contentions canvassed before us.\n\nThe first question that falls to be considered is : Whether Shri Mohana Rangam, on account of his failure to secure any vote in the first count is to be treated as excluded from the poll ? In other words, had he ceased to be a 'continuing candidate' within the contemplation of the Election Rules ?\n\nD We have already referred to the definition of 'Continuing Candidate' in Rule 71 ( 1).\n\nThe definition has two elements which must be satisfied before a candidate can be said to be a continuing candidate. He should be a \"candidate not elected\" and further. he must not have been excluded from the poll at any given time.\n\nShri Mohana Rangam ful fils both these conditions.\n\nShri Ramaswami however, contended that this definition is to be interpreted and applied in the light of what has been said in Ru1es 74 and 81. The argument is that an essential pre-requisite to the continuance of a candidate is the al'otmeiit of a \"basket\" or \"parcel\" under Rule 74, and only such candidate is entitled to the allotment of a 'basket' who at the end of the count, gets some vote to his credit and opens his account.\n\nSince Shri Rangam-proceeds the argumentdid not get any vote whatever, he stood automatically excluded and no question of allotting any \"parcel\" to him arose.\n\nThe contention must be repelled.\n\nThere is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote. Sub- Rule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case.\n\nThat sub-rule--which reauires the returning officer to exclude from the poll a candidate whose score is the lowest-governs the counting of votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected.\n\nSuch is not the case before us.\n\nRule 80 also can have no application because it comes into operation at a stage \"after all surpluses have been transferred\".\n\nThat stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates\n\n_.,\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 553\n\n(including Shri John) ha\\ing secured the requisite quota of first preference votes.\n\nNor did the stage for applying Rule 81 arise, because at e end of the first count, no vacancy remained unfilled.\n\nWe therefore, repel the contention of the learned counsel and hold\n\nthat Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were 'continuing candidates'. Shri Subramanyan could not be declared elected as he had not obtained the re~ B quired quota of 3,201 votes.\n\nThis takes us to the next question. Should all the votes .that had polled ill favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election. be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, Who secured\n\n300 votes ns against none obtained by Shri Mohana Rangam, be declared C elected?\n\n...._ Again, the answer to this question, in our opinion, must be in the negative. It is nobody's case that the electors who vot~ for Shri John, had at the time of election, knowledge or notice of the statutory dis ... qualification of this candidate.\n\nOn the contrary, they must have been under the impression that Sbri John was a. candidate whose nomination D bad been validly accepted by the returning officer.\n\nHad the electors notice of Shri Jolm's disqualification, how many of them would have voted foe him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and urwredictability.\n\nIn the view we take, we are fortified by the observations in this Court's decision in R. M. Seshadri v. G. V. Pai ('). In that case, the election of R. M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters.\n\nThe total votes polled were 12,153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named\n\nin the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G. V. Pai received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertained.\n\nBfore this Court, it was contended that the election of Seshadri having been set aside, G. V. Pai, who had oolled the next highet number G ,.- of votes should be declared elected.\n\nHidayatullah C.J. speaking for the Court, rejected this contention with these observations :\n\n\"This (question) will depend on our reaching the conclusion that but for the fact that voters were brouqht throue:h this corruot oractice to the poltinQ: booths, the result of the\n\nelection had been m:1terialtv afl'ecteif. Tn a !<ino-h'! mfernhle H vote, it is very difficult to say how the voting would have gone,\n\n(1) AIR1969S.C.692, .tpage701\n\nSUPREME cOURT REPORTS-\n\n\n. because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, 'those candidates would have won. We cannot order a recount because those voters were not free from complicity.\n\nIt would be speculating to decide how many of the voters . were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.\"\n\nThe position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not C qualified to contest the election.\n\nIn any case, Shri Subramanyan was neither the sole continuing candidate, nor had he secured the reQuisite quota of votes.\n\nHe cannot th}refore11 be declared elected.\n\nThe dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan.\n\nIn that case, D the election in question was not held according to the system of a single transferable vote.\n\nThere were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification; Shah\n\nJ. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for hin1 were unaware of the disQualification, and the candidate securing the next highest number of votes :E was declared elected.\n\nThe learned Judge was however careful. enough to add: ·\n\n\"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified; on proof of disqualification all the votes cast in his · favour will be discarded and the candidate securing the next highest number of votes will be declared eJected. In such a case, question of notice to the voters may assume, significance, for . ' the voters may not, if aware of the disqualification, have voted for the disqualified candidate.\" ·\n\nThe ratio decidendi of Viswanatha v. Konappa is applicable only G where (a) there are two contesting candidates and one of them is disqualified, (b) and the election is on the basis of single non-traizsferable vote.\n\nBoth these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority H of votes secured ensures the success of a candidate, but by proportional representation with single transferable vote, under which system the success of a candidate normally depends on his securing the requisite qu1tta.\n\n\n- I\n\n11!\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 555\n\nHowever, the principle underlying the obiter in Viswanatha v.\n\nKonappa, which we have extracted, is applicable to the instant case A because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the field.\n\nFor all the reasons aforesaid, the appeals fail and are dismissed.\n\nIn the peculiar circumstances of the case the parties are left to their own costs.\n\nS.R.\n\nAppeals dismissed", "total_entities": 130, "entities": [{"text": "THIRU JOHN & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "THIRU JOHN & ANR", "offset_not_found": false}}, {"text": "RETURNING OFFICER & ORs", "label": "RESPONDENT", "start_char": 19, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "RETURNING OFFICER & ORS", "offset_not_found": false}}, {"text": "April 12. 1977", "label": "DATE", "start_char": 45, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "April 12."}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 82, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Article 84(b)", "label": "PROVISION", "start_char": 144, "end_char": 157, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 475, "end_char": 507, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 83, 97, 100 and 101", "label": "PROVISION", "start_char": 524, "end_char": 552, "source": "regex", "metadata": {"statute": null}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 982, "end_char": 1013, "source": "regex", "metadata": {}}, {"text": "R. Mohanarangam", "label": "LAWYER", "start_char": 1243, "end_char": 1258, "source": "ner", "metadata": {"in_sentence": "In the biennial elections of 1974 for filling six vacancies to the Rajya Sabha from the State of Tamil N adu, there were eight contestants, including both the appellants and one R. Mohanarangam, the petitioner in Election Petition No.", "canonical_name": "R. Mohanarangam"}}, {"text": "Mohanarangam", "label": "OTHER_PERSON", "start_char": 1717, "end_char": 1729, "source": "ner", "metadata": {"in_sentence": "In the election petitions filed by Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the ground that on March 12, 1974, the date of the scrutiny of the nominations, he was less than 30 years of age and as such he did not possess the qualifications as to age laid down under Art.", "canonical_name": "Mohanaran- F gam"}}, {"text": "John", "label": "OTHER_PERSON", "start_char": 1768, "end_char": 1772, "source": "ner", "metadata": {"in_sentence": "In the election petitions filed by Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the ground that on March 12, 1974, the date of the scrutiny of the nominations, he was less than 30 years of age and as such he did not possess the qualifications as to age laid down under Art."}}, {"text": "March 12, 1974", "label": "DATE", "start_char": 1808, "end_char": 1822, "source": "ner", "metadata": {"in_sentence": "In the election petitions filed by Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the ground that on March 12, 1974, the date of the scrutiny of the nominations, he was less than 30 years of age and as such he did not possess the qualifications as to age laid down under Art."}}, {"text": "Art. 84(b)", "label": "PROVISION", "start_char": 1978, "end_char": 1988, "source": "regex", "metadata": {"linked_statute_text": "Conduct of Election Rules, 1961", "statute": "Conduct of Election Rules, 1961"}}, {"text": "s. 100", "label": "PROVISION", "start_char": 2189, "end_char": 2195, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of Peoples Act, 1951", "label": "STATUTE", "start_char": 2203, "end_char": 2238, "source": "regex", "metadata": {}}, {"text": "s. 101", "label": "PROVISION", "start_char": 2358, "end_char": 2364, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "s. 97", "label": "PROVISION", "start_char": 2418, "end_char": 2423, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "s. 83", "label": "PROVISION", "start_char": 2434, "end_char": 2439, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "Subramanyam", "label": "PETITIONER", "start_char": 2509, "end_char": 2520, "source": "ner", "metadata": {"in_sentence": "1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote, he, in the event of the election of Sri John being set aside, was not entitled to be declared elected in the place of John.", "canonical_name": "Subramanyan appellant"}}, {"text": "Mohanarangrun", "label": "OTHER_PERSON", "start_char": 2531, "end_char": 2544, "source": "ner", "metadata": {"in_sentence": "1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote, he, in the event of the election of Sri John being set aside, was not entitled to be declared elected in the place of John.", "canonical_name": "Mohanaran- F gam"}}, {"text": "s. 101", "label": "PROVISION", "start_char": 2580, "end_char": 2586, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "Art. 84(b)", "label": "PROVISION", "start_char": 2963, "end_char": 2973, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "s. 101", "label": "PROVISION", "start_char": 3179, "end_char": 3185, "source": "regex", "metadata": {"linked_statute_text": "the Representation of Peoples Act, 1951", "statute": "the Representation of Peoples Act, 1951"}}, {"text": "Art. 84(b)", "label": "PROVISION", "start_char": 3496, "end_char": 3506, "source": "regex", "metadata": {"statute": null}}, {"text": "14.5.1946", "label": "DATE", "start_char": 4386, "end_char": 4395, "source": "ner", "metadata": {"in_sentence": "This documentary evidence includes no less than a don previous admissions and declarations made between March 1964 and July 1973 by Sri John himself about his age, to the effect that he was born in 1946 and that his date of biith was 14.5.1946."}}, {"text": "14-5-1943", "label": "DATE", "start_char": 4808, "end_char": 4817, "source": "ner", "metadata": {"in_sentence": "pointing to the conclusion that Sri John was born on 14.5.1946 and not on 14-5-1943. ["}}, {"text": "sections 17 to 20", "label": "PROVISION", "start_char": 4907, "end_char": 4924, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 4956, "end_char": 4966, "source": "regex", "metadata": {"statute": null}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 5878, "end_char": 5909, "source": "regex", "metadata": {}}, {"text": "Mohanaran- F gam", "label": "OTHER_PERSON", "start_char": 6616, "end_char": 6632, "source": "ner", "metadata": {"in_sentence": "550 B,\n\n552 CJ\n\n(5) The contention that an essential prerequisite to the continuance of a candidate is the allotment of a \"basket\" or \"parcel\" under Rule 74 and only such candidate is entitled to the allotment of a basket who at the end of the count gets some vote to his credit and opens his account, and since Mohanaran- F gam did not get any vote whatever he stood automatically excluded is not correct.", "canonical_name": "Mohanaran- F gam"}}, {"text": "Mohanaran!l\"am", "label": "OTHER_PERSON", "start_char": 7828, "end_char": 7842, "source": "ner", "metadata": {"in_sentence": "In the instant case Shri Mohanaran!l\"am did not get automaticallv PXclurfed.", "canonical_name": "Mohanaran- F gam"}}, {"text": "Subrahmanyam", "label": "PETITIONER", "start_char": 7944, "end_char": 7956, "source": "ner", "metadata": {"in_sentence": "Sri Subrahmanyam coulrt not be\n\ndPdar~\"d \"'\"ctl\"r'l as he had 'not obtained the required quota of 3201 votes.", "canonical_name": "Subramanyan appellant"}}, {"text": "Sbri John", "label": "OTHER_PERSON", "start_char": 8810, "end_char": 8819, "source": "ner", "metadata": {"in_sentence": "Shn Subrahmanyam wns not the sole surviving continuing candtdate left m the field, after exclusion of the disqualified candidate Sbri John. (", "canonical_name": "S!tri John"}}, {"text": "Mohanaraogam", "label": "OTHER_PERSON", "start_char": 9173, "end_char": 9185, "source": "ner", "metadata": {"in_sentence": "(9) All the votes that had polled in favour of Shri John who bas been found by the court to be statutorily disqualified for election cannot be reardcd as thrown away and in consequence, the appellant Shri Subrahmanyam who secured 300 votes as against none obtained by Shri Mohanaraogam cannot be dedarcd elected.", "canonical_name": "Mohanaran- F gam"}}, {"text": "Sarvashri Subrah manyam", "label": "OTHER_PERSON", "start_char": 9806, "end_char": 9829, "source": "ner", "metadata": {"in_sentence": "Had the electol'11 notice of Shri John's disqualification, how many of them would have voted for him and hew many for the oth::r continuing candidates including Sarvashri Subrah manyam and Mohanarallgam and in whnt preferential ordr."}}, {"text": "Mohanarallgam", "label": "OTHER_PERSON", "start_char": 9834, "end_char": 9847, "source": "ner", "metadata": {"in_sentence": "Had the electol'11 notice of Shri John's disqualification, how many of them would have voted for him and hew many for the oth::r continuing candidates including Sarvashri Subrah manyam and Mohanarallgam and in whnt preferential ordr.", "canonical_name": "Mohanaran- F gam"}}, {"text": "AIR 1969 SC 692", "label": "CASE_CITATION", "start_char": 9990, "end_char": 10005, "source": "regex", "metadata": {}}, {"text": "R. N. Chaudhary", "label": "LAWYER", "start_char": 10230, "end_char": 10245, "source": "ner", "metadata": {"in_sentence": "R. N. Chaudhary and Mrs. V. D. Klwmw, for the appellant in CAs 1896/74."}}, {"text": "V. D. Klwmw", "label": "LAWYER", "start_char": 10255, "end_char": 10266, "source": "ner", "metadata": {"in_sentence": "R. N. Chaudhary and Mrs. V. D. Klwmw, for the appellant in CAs 1896/74."}}, {"text": "Cl1", "label": "PROVISION", "start_char": 10323, "end_char": 10326, "source": "regex", "metadata": {"statute": null}}, {"text": "T. N. S. Srinh•(tsavaradadwry", "label": "LAWYER", "start_char": 10333, "end_char": 10362, "source": "ner", "metadata": {"in_sentence": "S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74."}}, {"text": "G. Ramaswamy", "label": "LAWYER", "start_char": 10367, "end_char": 10379, "source": "ner", "metadata": {"in_sentence": "S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74."}}, {"text": "C. Lakslzminarain", "label": "LAWYER", "start_char": 10381, "end_char": 10398, "source": "ner", "metadata": {"in_sentence": "S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74."}}, {"text": "S.R.L. Narain", "label": "LAWYER", "start_char": 10400, "end_char": 10413, "source": "ner", "metadata": {"in_sentence": "S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74."}}, {"text": "Vinet't Kumar", "label": "LAWYER", "start_char": 10418, "end_char": 10431, "source": "ner", "metadata": {"in_sentence": "S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74."}}, {"text": "T. N. C. Srini", "label": "OTHER_PERSON", "start_char": 10466, "end_char": 10480, "source": "ner", "metadata": {"in_sentence": "T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No."}}, {"text": "asavarudacharya", "label": "OTHER_PERSON", "start_char": 10482, "end_char": 10497, "source": "ner", "metadata": {"in_sentence": "T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No."}}, {"text": "S. C. Lakslunindrain", "label": "OTHER_PERSON", "start_char": 10499, "end_char": 10519, "source": "ner", "metadata": {"in_sentence": "T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No."}}, {"text": "S. R. L.\n\nNarayan", "label": "LAWYER", "start_char": 10521, "end_char": 10538, "source": "ner", "metadata": {"in_sentence": "T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No."}}, {"text": "M. S. Nurasimalwn", "label": "LAWYER", "start_char": 10540, "end_char": 10557, "source": "ner", "metadata": {"in_sentence": "T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.\n\nNarayan, M. S. Nurasimalwn, for respondent No."}}, {"text": "A. V. Rtmgam", "label": "LAWYER", "start_char": 10647, "end_char": 10659, "source": "ner", "metadata": {"in_sentence": "A. V. Rtmgam und Miss A. Subslzaslzini, for respondent No."}}, {"text": "A. Subslzaslzini", "label": "LAWYER", "start_char": 10669, "end_char": 10685, "source": "ner", "metadata": {"in_sentence": "A. V. Rtmgam und Miss A. Subslzaslzini, for respondent No."}}, {"text": "J. M. Klwmuz", "label": "RESPONDENT", "start_char": 10763, "end_char": 10775, "source": "ner", "metadata": {"in_sentence": "J. M. Klwmuz, !"}}, {"text": "SARKARL\\", "label": "JUDGE", "start_char": 10861, "end_char": 10869, "source": "ner", "metadata": {"in_sentence": "Tho: Judgment of the Court was ddivcred by\n\nSARKARL\\, J. The basic facts gi, ing riso to these appeals being common, the fiame wiJ.l be disposed of under one judgment.", "canonical_name": "SARKARL\\"}}, {"text": "Khadar Sha", "label": "OTHER_PERSON", "start_char": 11744, "end_char": 11754, "source": "ner", "metadata": {"in_sentence": "Shri Khadar Sha\n\n2."}}, {"text": "Khaja Mohideen", "label": "OTHER_PERSON", "start_char": 11764, "end_char": 11778, "source": "ner", "metadata": {"in_sentence": "Shri Khaja Mohideen .3."}}, {"text": "V. Subrahmanyam", "label": "PETITIONER", "start_char": 11788, "end_char": 11803, "source": "ner", "metadata": {"in_sentence": "Shri V. Subrahmanyam\n\n4.", "canonical_name": "Subramanyan appellant"}}, {"text": "C. D. Natarajan", "label": "OTHER_PERSON", "start_char": 11813, "end_char": 11828, "source": "ner", "metadata": {"in_sentence": "Shri C. D. Natarajan\n\n5."}}, {"text": "S. Ranaganathan", "label": "OTHER_PERSON", "start_char": 11862, "end_char": 11877, "source": "ner", "metadata": {"in_sentence": "Shri R. Mohanarangam 6 .Shri S. Ranaganathan\n\n7."}}, {"text": "G. Laksbmanan", "label": "OTHER_PERSON", "start_char": 11882, "end_char": 11895, "source": "ner", "metadata": {"in_sentence": "G. Laksbmanan\n\n8."}}, {"text": "D. C. John @ Valampuri John", "label": "RESPONDENT", "start_char": 11900, "end_char": 11927, "source": "ner", "metadata": {"in_sentence": "D. C. John @ Valampuri John\n\n3500 3700\n\n300 3500\n\nNil\n\nThe requisite quota to secure the election of a candidate was fixed at 22,400\n\nand candidates mentioned at serial Nos."}}, {"text": "R. Mohan Rangam", "label": "LAWYER", "start_char": 12231, "end_char": 12246, "source": "ner", "metadata": {"in_sentence": "Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam.", "canonical_name": "R. Mohanarangam"}}, {"text": "V. Subrahmanyam", "label": "LAWYER", "start_char": 12287, "end_char": 12302, "source": "ner", "metadata": {"in_sentence": "Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam.", "canonical_name": "Subramanyan appellant"}}, {"text": "D. C. John", "label": "OTHER_PERSON", "start_char": 12353, "end_char": 12363, "source": "ner", "metadata": {"in_sentence": "The petitioners prayed that the election of Shri D. C. John be declared void and set E aside under s. 100 of the Representation of the People Act, 1951."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 12403, "end_char": 12409, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 12417, "end_char": 12455, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 101", "label": "PROVISION", "start_char": 12578, "end_char": 12584, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "March 9, 1974", "label": "DATE", "start_char": 12826, "end_char": 12839, "source": "ner", "metadata": {"in_sentence": "The election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, be was tess than\n\n30 years• of age and as such, did not possess the qualification as to age laid down in Article 84(b) of the Constitution."}}, {"text": "Article 84(b)", "label": "PROVISION", "start_char": 12990, "end_char": 13003, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 97", "label": "PROVISION", "start_char": 13241, "end_char": 13246, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 83", "label": "PROVISION", "start_char": 13257, "end_char": 13262, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "Mohana Rangam", "label": "OTHER_PERSON", "start_char": 13349, "end_char": 13362, "source": "ner", "metadata": {"in_sentence": "1/74 under s. 97 read with s. 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 1/\n\n74, opposing Mohana Rangam's relief for declaration under s. 101.", "canonical_name": "Mohanaran- F gam"}}, {"text": "s. 101", "label": "PROVISION", "start_char": 13394, "end_char": 13400, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "JohH", "label": "OTHER_PERSON", "start_char": 13533, "end_char": 13537, "source": "ner", "metadata": {"in_sentence": "in the event nf the election of Shri JohH being set aside, was entitled o be declared elected in the place of shri John."}}, {"text": "SUPREME COURT REPORTS [1977] 3 s.c.R.", "label": "COURT", "start_char": 13754, "end_char": 13791, "source": "ner", "metadata": {"in_sentence": "B-502 SCI/77\n\nSUPREME COURT REPORTS [1977] 3 s.c."}}, {"text": "Art. 84(b)", "label": "PROVISION", "start_char": 13931, "end_char": 13941, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajya Sabha", "label": "ORG", "start_char": 13994, "end_char": 14005, "source": "ner", "metadata": {"in_sentence": "84(b) of the Constitution, to contest the election to the Rajya Sabha."}}, {"text": "s. 1", "label": "PROVISION", "start_char": 14182, "end_char": 14186, "source": "regex", "metadata": {"statute": null}}, {"text": "S!tri John", "label": "OTHER_PERSON", "start_char": 14468, "end_char": 14478, "source": "ner", "metadata": {"in_sentence": "The first question that falls to be determined in these appeals is : Whether S!tri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him'!", "canonical_name": "S!tri John"}}, {"text": "May 14, 1946", "label": "DATE", "start_char": 14491, "end_char": 14503, "source": "ner", "metadata": {"in_sentence": "The first question that falls to be determined in these appeals is : Whether S!tri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him'!"}}, {"text": "May 14, 1943", "label": "DATE", "start_char": 14549, "end_char": 14561, "source": "ner", "metadata": {"in_sentence": "The first question that falls to be determined in these appeals is : Whether S!tri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him'!"}}, {"text": "Chowdhary", "label": "OTHER_PERSON", "start_char": 14589, "end_char": 14598, "source": "ner", "metadata": {"in_sentence": "Mr. Chowdhary appearing for the appellant (Shri John) contends that the burden of proving that Shri John, was at the material date below 30 years of age was on the election-petitioner and that the latter had faiJed to discharge such burden."}}, {"text": "14-5-1946", "label": "DATE", "start_char": 16686, "end_char": 16695, "source": "ner", "metadata": {"in_sentence": "In several of these documents he declared 14-5-1946 as his date of birth."}}, {"text": "Sec. 21", "label": "PROVISION", "start_char": 16826, "end_char": 16833, "source": "regex", "metadata": {"statute": null}}, {"text": "Rama Prabhu", "label": "OTHER_PERSON", "start_char": 18297, "end_char": 18308, "source": "ner", "metadata": {"in_sentence": "L.C. signed by Rama Prabhu, the\n\nSecretary to the Commission for ."}}, {"text": "[1977] 3 S.C.R.\n\n3", "label": "CASE_CITATION", "start_char": 18576, "end_char": 18594, "source": "regex", "metadata": {}}, {"text": "Indian Christian Marriage Act 1872", "label": "STATUTE", "start_char": 19448, "end_char": 19482, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "6-4-1972", "label": "DATE", "start_char": 19576, "end_char": 19584, "source": "ner", "metadata": {"in_sentence": "P.30, Periodical report from the Churches regarding marriages solemnised therein, required under the Indian Christian Marriage Act 1872, showing that Shri John'~ marriage was solemnised in St. Francis Xavier's Church, Madras, on 6-4-1972 by Fr."}}, {"text": "G. K. Swami", "label": "OTHER_PERSON", "start_char": 19592, "end_char": 19603, "source": "ner", "metadata": {"in_sentence": "G. K. Swami, and that on the date of this marriage he was 26 years of age."}}, {"text": "T.E.L.C. Kabis High School", "label": "ORG", "start_char": 19723, "end_char": 19749, "source": "ner", "metadata": {"in_sentence": "Exhibits Pll, P-ll(a), P-12 and P-12(a) record'S of T.E.L.C. Kabis High School showing Sbri John's date of birth as 14-6-1946."}}, {"text": "Varalatril Kalaignar", "label": "OTHER_PERSON", "start_char": 19815, "end_char": 19835, "source": "ner", "metadata": {"in_sentence": "P-28-Book-Varalatril Kalaignar Written by Shri John containing biographical sketch."}}, {"text": "Chaudhury", "label": "OTHER_PERSON", "start_char": 20394, "end_char": 20403, "source": "ner", "metadata": {"in_sentence": "Mr. Chaudhury assails this finding.", "canonical_name": "Chaudhury"}}, {"text": "Rosario", "label": "WITNESS", "start_char": 20681, "end_char": 20688, "source": "ner", "metadata": {"in_sentence": "Rosario, the Parish Priest who had baptised Shri John about 7 days after his birth in 1943."}}, {"text": "Sbn John", "label": "OTHER_PERSON", "start_char": 20826, "end_char": 20834, "source": "ner", "metadata": {"in_sentence": "It is furtl1er arl!ued that the best evidence as to Sbn John's date of birth could be that of the entry in the Public irth Register maintained under authMitv of law and that the election-petitioner on whom the onus lay, did not produce that evidence.", "canonical_name": "S!tri John"}}, {"text": "THIRU JOHN", "label": "JUDGE", "start_char": 21035, "end_char": 21045, "source": "ner", "metadata": {"in_sentence": ".......\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 545\n\nWe Hnd no substance in these contentions.", "canonical_name": "THIRU JOHN & ANR"}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 21068, "end_char": 21076, "source": "ner", "metadata": {"in_sentence": ".......\n\nTHIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 545\n\nWe Hnd no substance in these contentions.", "canonical_name": "SARKARL\\"}}, {"text": "John", "label": "WITNESS", "start_char": 21159, "end_char": 21163, "source": "ner", "metadata": {"in_sentence": "In the witness box both Shri John (RW."}}, {"text": "St. Francis Xavier Church", "label": "ORG", "start_char": 21701, "end_char": 21726, "source": "ner", "metadata": {"in_sentence": "Both the brothers however, admitted that Shri John's marriage was solemnised in St. Francis Xavier Church on 6-4-1972."}}, {"text": "Choudhury", "label": "OTHER_PERSON", "start_char": 22727, "end_char": 22736, "source": "ner", "metadata": {"in_sentence": "Tl!e discrepancy pointed out by Shri Choudhury as to the date of the baptism of Shri John, takes us to the evidence produced by him.", "canonical_name": "Chaudhury"}}, {"text": "Peter Royan", "label": "WITNESS", "start_char": 23130, "end_char": 23141, "source": "ner", "metadata": {"in_sentence": "This was issued by the Parish Priest, Peter Royan (R W 5), and purports to be\n\na copy of an entry in the Baptism Register, which according to the admission wrung out from RW 5, had itself been re-written and copied F from the originaL The Parish Priest conceded that he had burnt the original because it was in a very bad condition."}}, {"text": "Parliament", "label": "ORG", "start_char": 26144, "end_char": 26154, "source": "ner", "metadata": {"in_sentence": "A suggestion was made to him that he should contest an election to Parliament as a representative of the fishermen community."}}, {"text": "Peter", "label": "WITNESS", "start_char": 26943, "end_char": 26948, "source": "ner", "metadata": {"in_sentence": "Peter\n\n(R.W. 5) and asked for the Baptism Register relating to the witness."}}, {"text": "Peter Royan", "label": "OTHER_PERSON", "start_char": 28528, "end_char": 28539, "source": "ner", "metadata": {"in_sentence": "Peter Royan at the village Church and scrutinising the Baptism Register his version is more or less the same as of RW-1."}}, {"text": "19-10-1946", "label": "DATE", "start_char": 29022, "end_char": 29032, "source": "ner", "metadata": {"in_sentence": "P. 29, the date of Shri John's baptism is noted as 19-10-1946."}}, {"text": "J. D. Mohan", "label": "WITNESS", "start_char": 29263, "end_char": 29274, "source": "ner", "metadata": {"in_sentence": "The conclusion was inescapable that on 6-4-1972, Shri J. D. Mohan, RW-3, the eldest brother of Shri John, whose parents were dead, knew that the particulars of this entry snowing his age to be 26 years on 6-4-1972, and the date of his baptism in 1946, were true."}}, {"text": "Article 84(b)", "label": "PROVISION", "start_char": 29933, "end_char": 29946, "source": "regex", "metadata": {"statute": null}}, {"text": "V. Subramanyan", "label": "PETITIONER", "start_char": 30368, "end_char": 30382, "source": "ner", "metadata": {"in_sentence": "Now we come to the second question, whether Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared elected in lieu of Shri John whose election has been set aside ?", "canonical_name": "Subramanyan appellant"}}, {"text": "Ramaswami", "label": "OTHER_PERSON", "start_char": 30553, "end_char": 30562, "source": "ner", "metadata": {"in_sentence": "R.\n\nShri Ramaswami, learned Counsel for this appellant, has advanced alternat1ve arguments."}}, {"text": "Subramanyam", "label": "PETITIONER", "start_char": 30809, "end_char": 30820, "source": "ner", "metadata": {"in_sentence": "It is subn1ttted that since Shri Mohana Rangam did not secure any vote at aU, he had ceased to be a continuing candidate and stood automatically excluded, leaving only Shri Subramanyam, sole continuing candidate in the field.", "canonical_name": "Subramanyan appellant"}}, {"text": "Rangam", "label": "OTHER_PERSON", "start_char": 30889, "end_char": 30895, "source": "ner", "metadata": {"in_sentence": "It is emphasised that shri Rangam bas not filed any recriminatory petition."}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 31136, "end_char": 31167, "source": "regex", "metadata": {}}, {"text": "Mohan Rangam", "label": "OTHER_PERSON", "start_char": 31354, "end_char": 31366, "source": "ner", "metadata": {"in_sentence": "The alternative argument of Shri Ramaswami is that since Sbri John was not a qualified candidate, the votes cast in his favour have to be treated as thrown away, and even if both Shri Mohan Rangam and Shri Subramanyam are assumed to be continuing candidates, the surplus votes cast in favour of the five successful candidates had to be transferred and redistributr.d in favour of these continuing candidates.", "canonical_name": "Mohanaran- F gam"}}, {"text": "K. V. Krishnaswamy Aiyar", "label": "OTHER_PERSON", "start_char": 32380, "end_char": 32404, "source": "ner", "metadata": {"in_sentence": "In support of his contentions Shri Ramaswami has copiously referred to the treatise, the Single Transferable Vote by K. V. Krishnaswamy Aiyar published in 1946, and the relevant provisions of the Conduct of Election Rules, 1961 (for short, referred to as the Election Rules)."}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 32459, "end_char": 32490, "source": "regex", "metadata": {}}, {"text": "Relevant Rules in Part VII of the Election Rules", "label": "STATUTE", "start_char": 33215, "end_char": 33263, "source": "regex", "metadata": {}}, {"text": "Aiyar", "label": "OTHER_PERSON", "start_char": 33315, "end_char": 33320, "source": "ner", "metadata": {"in_sentence": "Relevant Rules in Part VII of the Election Rules are modulated on the principles enunciated by Shri Aiyar in the aforesaid boOk."}}, {"text": "THIRU JOHN V. RETURNING OFFICER", "label": "JUDGE", "start_char": 39873, "end_char": 39904, "source": "ner", "metadata": {"in_sentence": "THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 5 51\n\nRule 80 epeaks of exclusion of candidates lowest on the ooll: It A roods :\n\n\"80."}}, {"text": "Subramanyan", "label": "PETITIONER", "start_char": 45783, "end_char": 45794, "source": "ner", "metadata": {"in_sentence": "Both he and Shri Subramanyan were 'continuing candidates'.", "canonical_name": "Subramanyan appellant"}}, {"text": "Subramanyan", "label": "PETITIONER", "start_char": 46194, "end_char": 46205, "source": "ner", "metadata": {"in_sentence": "be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, Who secured\n\n300 votes ns against none obtained by Shri Mohana Rangam, be declared C elected?", "canonical_name": "Subramanyan appellant"}}, {"text": "Jolm", "label": "OTHER_PERSON", "start_char": 46749, "end_char": 46753, "source": "ner", "metadata": {"in_sentence": "Had the electors notice of Shri Jolm's disqualification, how many of them would have voted foe him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and urwredictability."}}, {"text": "Sarv", "label": "OTHER_PERSON", "start_char": 46876, "end_char": 46880, "source": "ner", "metadata": {"in_sentence": "Had the electors notice of Shri Jolm's disqualification, how many of them would have voted foe him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and urwredictability."}}, {"text": "R. M. Seshadri", "label": "OTHER_PERSON", "start_char": 47167, "end_char": 47181, "source": "ner", "metadata": {"in_sentence": "In that case, the election of R. M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters."}}, {"text": "Madras Legislative Council", "label": "ORG", "start_char": 47189, "end_char": 47215, "source": "ner", "metadata": {"in_sentence": "In that case, the election of R. M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters."}}, {"text": "Seshadri", "label": "OTHER_PERSON", "start_char": 47615, "end_char": 47623, "source": "ner", "metadata": {"in_sentence": "At the final count Seshadri received 5643 votes and his nearest rival, G. V. Pai received 5388 votes."}}, {"text": "G. V. Pai", "label": "OTHER_PERSON", "start_char": 47667, "end_char": 47676, "source": "ner", "metadata": {"in_sentence": "At the final count Seshadri received 5643 votes and his nearest rival, G. V. Pai received 5388 votes."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 47982, "end_char": 47994, "source": "ner", "metadata": {"in_sentence": "Hidayatullah C.J. speaking for the Court, rejected this contention with these observations :\n\n\"This (question) will depend on our reaching the conclusion that but for the fact that voters were brouqht throue:h this corruot oractice to the poltinQ: booths, the result of the\n\nelection had been m:1terialtv afl'ecteif."}}, {"text": "Vasanta Pai", "label": "OTHER_PERSON", "start_char": 48846, "end_char": 48857, "source": "ner", "metadata": {"in_sentence": "We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.\""}}, {"text": "Shah", "label": "OTHER_PERSON", "start_char": 49802, "end_char": 49806, "source": "ner", "metadata": {"in_sentence": "There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification; Shah"}}, {"text": "Subramanyan appellant", "label": "PETITIONER", "start_char": 50953, "end_char": 50974, "source": "ner", "metadata": {"in_sentence": "As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John.", "canonical_name": "Subramanyan appellant"}}]}
{"document_id": "1977_3_556_561_EN", "year": 1977, "text": "STATE OF ORIS$A AND ORS.\n\nARAKHITA BISOI\n\nApril 14, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA ANO P. S. KAILASAM, JJ.)\n\nB Oriss.1 Land Reforms Act, 1960 as amended by Act 13 of 196S and Act 29 of 1916-Revisional powers ul s 59-Whether an order passed by lhe appellate authority u/s 44 of the Act whicli ha.s become final uls 44(2) is capable of rel'isiOn by the Collector u/s 59 before the amendment Act 29 of\n\n1916--Construction of S. 59. ·\n\nUnder Section 43 of the Orissa Land Reforms Act, the Revenue Officer determines the ceiling surplus and on _the termination of the proceedings there~ under, the Revenue Officer u/s 44(1) confirms the draft statement; u/s 44(2) an appeal lies to the prescnbed authority against the order under sub-section\n\n(1) and_ subject to results of such appeal, if any, order. of the Revenue Officer shall be final.\n\nSection 58 provides a right of appeal to any person aggrieved by an order passed under any of the Sections enumerate.d in &':b~ section (I). Sub-section ( 1) of S. 59 provides that the Collector may roVJSe\n\nany order passed in appeal by any officer below the rank of a Collector uer tfiis Act.\n\nSection 59(1) also empowers the Board of Revenue to rev1Se any order passed by the Collector.\n\nSub-section (2) enables the Collector or the Board of Revenue suo nwtu or on the application of the party concerned call for and enmine the record in respect of any proceedings_ under the Act and modify, annual reverse or remit for reconsideration. . ·\n\nIn the proceedings u/s 38 of the Act_ the plea of the resporideD.t landlord that there was a partition between him and his sons was rejected by the Revenue Officer who determined the surplus extent as 12.08 standard acres.\n\nThe appeal preferred before the Sub-Divisional Officer having failed. the res~\n\npondent filed a revision before the Additional District Magistrate. 1he Addi:ional Magistrate held that the appellate orders u/s 44 are final and that no revision lay to him.. The writ petition filed against this order filed by the respondent was aUowed by the 0-issa High Court by its order dated lS-7-1976 holding that the Additional Magistrate had powers to revise an order of the appellate authority passed u/s 44 by virtue of the powers conferred on bin1 under .s. 59 of the Act. . 'Dismissing the appeal by certificate, the Court.\n\nHEID : (i) The language of S. 59(1) of the Orissa Land Reforms Act is \\\\'ide enough to enable the Collector to revise any order including an appellate order under S. 44 of the Act. [561 BJ ·\n\n(ii) In appying. the rule of ha!monious -constructio~ with a viw .to _giye effect to the . mtention : of the legislature the court will not be 111c; ttlied tn putting a construction which would restr'ct the revisionary jurisdiction of the Collector and the Board of Revenue.\n\n[560E] • •\n\nIn the instant case, the Act is of expropratory _nature and the determination of the excess lands is done by the Revenue Officer.\n\nThe. legis1ature intended that anr. error or irregularity should be rectified by higher authorities Uke the Collector and the Board of Revenue.\n\n[560E] ·\n\n1. K. Cotton Spinning & Weaving Mills Co. Ltd. v. Stafe of U.P. & Ors. [1961] 3 S.C.R. !SS held not applicable.\n\nThe Benal Tmmunity Cotnpany Ltd .. v. The State of Bihar & Ors. [t9SS] . 2 S.C.R .• 603 referred to.\n\n(iii) It cannot be said that there is any conflict between S.- 44(1 l and S. 58 ina.;:much oo S. 44( 1) provides that the ordE>r of the Revenue Officer shall be fmal, subject to the result of appeal u/s 44(2), while no such finJ.lity\n\n'.;\n\nORISSA v. BISOI (Kailasam, !.) 557\n\nis mellticm.ed in the case of an appeal u/s 58. 'fhe provision as to finality u/s 44(2) is provided for so that in the absence of the agrieved party proceeding further in the matter, the consequences of the vestmg of surplus lands u/s 45, the preparation of the Compensation A-; sessment Roll, the settlement of surplus lands etc. can be proceeded with. [559 D-F]\n\n(iv) The amendment to S. 44(3) by the Amendment Act of 1975 making it clear that a right to revision is provided for orders passed u/s 44(2) does not make any difference.\n\nThe amendment could not mean that S. 44(2) as B it originally stood did not provide for power of revision to the Collector u/s 59, [560 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 903 of 1976.\n\nAppeal from the Judgment and Order dated the 15-7-1976 of the Orissa High Court in O.J C. No. 698 of 1976.\n\nG:· Rath, Advocate General, Orissa, R. K. Mehta for the Appellants.\n\nVepa Parthasarthy and C. S. Rao for Respondents.\n\nThe Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal is by the State of Orissa represented by the Secretary, Revenue Department, against the judgment of a Bench of the Orissa High Court on a certificate of fitness granted by it.\n\nThe respondent herein is a land-holder whose ceiling surplus was determined by the Revenue Offi= under section 43 of the Orissa Land Reforms Act, 1960, as amended by Act 13 of 1965 and subsequently by Act 29 of 1976.\n\nThe Revenue Officer rejected the plea of the respondent that there\n\nwas a partition between him and his sons and determined the surplus extent as 12.08 standard acre.. The respondent prefen-ed an appeal before the Sub-Divisional Officer and the Sub-Divisional Officer confirmed the order of the Revenue Officer and dismissed the appeal.\n\nAgainst the order of the appellate authority the respondent filed a F revision before the Additional District Magistrate, Ganjam.\n\nThe Additional District Magistrate held that the appellate orders under section 44 were final and that no revision lay to him. The respondent thereupon filed a petition under Articles 226 and 22 7 of the Constitution challenging the order of the Additional District Magistrate rejecting the revision petition. A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that G the Additional District Magistrate had powers to revise the order of the appellate authority passed under section 44 by virtue of the powers conferred on him under section 59 of the Act. The High Court came to this conclusion that a revision was entertainable under section 59 by the Additional District Magistrate even before the amendment introduced by Orissa Act 29 of 1976. the details of which will be referred to later.\n\nThe only question that arises in this appeal is whether an order passed by the appellate authority under section 44 which has become\n\n9-502 SCI/77\n\nA final under section 44(2) is capable of revision by the Collector under section 59 before the amendment of the Act in 1976.\n\nSection 44 runs as follows :-\n\n\"44. (1) On the termination of the proceedings under Section 43, the Revenue Officer shall by order confirm the draft statement with s.uch alterations or amendments as may have been made ther.ein under the said Section.\n\n(2) An appeal against the order of the Revenue Oflicer under sub-section (I) confirming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the results of such appeal, if any, the orders of the Revenue Officer shall be final.''\n\nUnder section 44(1) the Revenue Officer confirms the draft statement and under section 44(2) an appeal lies to the prescribed authority against the order nnder sub-section (I) and 'subject to results of such appeal, if any, order of thei Revenue Officer shall be final.\n\nSection 58 provides a right of appeal to any prson aggrieved by an order passed under any of the sections enumerated in sub-section (I).\n\nAs the decision in this case will depend upon the construction that is put upon section 59 we extract section 59(1) and (2) in full.\n\n\"59. Revision :\n\n(1) The Collector may revise any order passed in appea 1 by any officer below the rank of a Collector under this Act and the Board of Revenue may revise any order passed by the Collector under this Act and the period of limitation for such revision shall be as may be prescribed.\n\n(2) For the purposes of sub-section {1) the Collector or the Board of Revenue as the case may be may suo motu or on application of either party or any interested person call for and examine the record of any matter in respect of any proceedings under this Act as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed thereon and if in any case it appears that any such decision or order shall be mOflified, annulled, reversed or remitted for reconsideration. t:c CoJ!eGtor or Board of Revenue as the case may be. may consider accordingly.\"\n\nSub-\"section ( 1) provides that the Collector may revise any order passed in appeal by any officer below the rank of' a Collector under this Act.\n\nIt also empowers the Board of Revenue to revise an order passed by the Collector under the Act. Sub-section (2) enables the collector or the Board of Revenue suo motu or on the application of the party concerned call for and examine the record in respect of any proceedings under the Act and modify, annual, reverse or remit for reconsideration such a decision to the lower authority. The section as it stands does not put anv restriction on the power of revision by the CollectO<\" or th Board of Revenue for it states that the Collector or the Boan! of Rewnue' may revise any order passed under this Act which would\n\nORISSA v. A. BISO! (Kai/asam, J.) $59\n\ninclude an order passed under section 44(2). Again sub-section (2) A -0f section 59 provides that the Collector or the Board of Revenue may examine the record of any matter in respect of any proceedings under the Act which would include the proceedings under section 44(2).\n\nThe submission of the learned counsel for the appellant is that the power of revision under section 59 is restricted to an appeal that is disposed of under section 58 and is not available against an order passed under section 44(2). The learned counsel very strongly relied on the wording of section 44(2) which provides that the order of the Revenue Officer shall be final subject to the result of an appeal provided under section 44(2) and therefore submits that no other relief is available to the aggrieved party. The learned counsel in contrast referred us to section 58 where the order of the lower authority is not stated to be final subject to the result of the appeal.\n\nAs no finality is providd for orders passed on appeal under section 58, the submission was that a revision under section 59 is available for those orders but orders passed under section 44(2) are final and they are not subject to revision under section 59.\n\nThere is no doubt that section 44( I) provides that the order of the Revenue Officer shall be final subject to the result oJ! an appeal under section 44(2) while no such finality is mentioned in the case of an appeal uuder section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Ao! and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act.\n\nAs the power of revision is not restricted we are unable to accepf the contention of the learned counsel that because of the wording of section 44 (2) providing that the order of the Revenue Officer subject to the result of the a11peal would be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44 (2) is provided for so that in the absence of the aggrieved party proceeding further in the matter the consequences of the vesting of surplus land's under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded witl1.\n\nThe learned counsel drew our attention to the amendment to the Orissa Act by Act 29 of J 976.\n\nThe Orissa Land Reforms .(2nd Amendment) Act, 1975, and submitted that the amendments introduced to section 44, 45 and 59 would make it clear that the legislature understood that the sections as they stood before the amendment did not enable tlie Collector to exercise revisional jurisdiction over orders passed by the appellate authority under section 44(2) of the Act. Bv the amending Act section 44, sub-sections (2) and (3) arc amended.\n\nSub-section (2) of section 44 as it originally stood provided tliat\n\nsubiecf to the result of such appeal, if any, the orders of the Rcv_enue Officer shall he final and sub-section (3) provided that the draft statement as confirmed or as modified in appeal shall be final and conelusive.\n\nBy the amendment sub-section (2) is recast and sub-section ( 3) provides that the draft statement as confirmed or as modified in appeal on revision shall be final and conclusive.\n\nThe amendment specifically provides for a revision. The amended sub-section (1) of section 59 provides that on an application by party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, the prescribed authority may revise such crder.\n\nThough the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that 'section 44(2) as it originally stood did not provid& for power of revision to the Collector under section\n\n59. In our opinion, amendment does not make any difference.\n\nThe learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction.\n\nIn support of this plea the learned coun'sel referred to the decision in The J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P. & Ors.('). In construing the provisions o fclause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect, and a construction which defeats tbe intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of _harn1onious construction with a view to give effect to the intention of the legislature the court will not be justified in putting a constmction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and theJ determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only proper to presume that the legislature intended that any error or irregularity should be rectified by higher authorities like the Collector and the Board of Revenue. In our view, if wi\\l be in conformity with the intention of the Jeirislature to hold thai section 59 confers a power of revision of an order passed under section 44(2) of the Act.· The learned counsel next referred to a decision of this Court in The Beni?al Immunity Company Limited\n\nv. The State of Bihar and Others.( 2 ) The rule of construction rs stated at p. 791 in the following terms by Venkatarama Ayyar J. speaking for the Court :-\n\n\"Tl is a cardinal rule of constmction that when there are in a Statute two provisions which are in conflict with each other such that both of them canner stand, they should, if possible, be so interpreted that effect can be given to both. and that a cons1'ruction which renders either of them inopera.tive and useless should not be adopted except in the last resort.\n\nThis is what is known as the rule of harmonious construction. One application of this rule is that when there\n\n(1) [l961J (3) ~.C'.R.185.\n\n(2) [1955] 12) SCR 601,\n\nORISSA v. A. BISOI (Kai/asam, !.) 561\n\nis a law generally dealing with a subject and nother dealing A particularly with one of the topics comprised therein, the genernl law is to be construed as yielding to the special in respect of .the matters comprised therein.\"\n\nConstruing scctjon 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above decision.\n\nWe agree with the view taken by the Orissa High Court that the language of section 59 (1) is wide enough to enable the Collector to revise any order including an appellate order under section 44 of the Acl.\n\nIn the result the appeal is dismissed with costs. .\n\nS.R.\n\nAppeal dismissed.", "total_entities": 98, "entities": [{"text": "STATE OF ORIS$A AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA AND ORS", "offset_not_found": false}}, {"text": "ARAKHITA BISOI", "label": "RESPONDENT", "start_char": 26, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "ARAKHITA BISOI", "offset_not_found": false}}, {"text": "April 14, 1977", "label": "DATE", "start_char": 42, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "ARAKHITA BISOI\n\nApril 14, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA ANO P. S. KAILASAM, JJ.)"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 59, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA ANO P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 76, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "P.S. 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K. Mehta for the Appellants."}}, {"text": "R. K. Mehta", "label": "LAWYER", "start_char": 4470, "end_char": 4481, "source": "ner", "metadata": {"in_sentence": "G:· Rath, Advocate General, Orissa, R. K. Mehta for the Appellants."}}, {"text": "Vepa Parthasarthy", "label": "LAWYER", "start_char": 4503, "end_char": 4520, "source": "ner", "metadata": {"in_sentence": "Vepa Parthasarthy and C. S. Rao for Respondents."}}, {"text": "C. S. Rao", "label": "LAWYER", "start_char": 4525, "end_char": 4534, "source": "ner", "metadata": {"in_sentence": "Vepa Parthasarthy and C. S. 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"end_char": 4949, "source": "regex", "metadata": {}}, {"text": "Additional District Magistrate, Ganjam", "label": "COURT", "start_char": 5445, "end_char": 5483, "source": "ner", "metadata": {"in_sentence": "Against the order of the appellate authority the respondent filed a F revision before the Additional District Magistrate, Ganjam."}}, {"text": "section 44", "label": "PROVISION", "start_char": 5558, "end_char": 5568, "source": "regex", "metadata": {"linked_statute_text": "the Orissa Land Reforms Act, 1960", "statute": "the Orissa Land Reforms Act, 1960"}}, {"text": "Articles 226 and 22", "label": "PROVISION", "start_char": 5661, "end_char": 5680, "source": "regex", "metadata": {"linked_statute_text": "the Orissa Land Reforms Act, 1960", "statute": "the Orissa Land Reforms Act, 1960"}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 5811, "end_char": 5828, "source": "ner", "metadata": {"in_sentence": "A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that G the Additional District Magistrate had powers to revise the order of the appellate authority passed under section 44 by virtue of the powers conferred on him under section 59 of the Act."}}, {"text": "15th July, 1976", "label": "DATE", "start_char": 5847, "end_char": 5862, "source": "ner", "metadata": {"in_sentence": "A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that G the Additional District Magistrate had powers to revise the order of the appellate authority passed under section 44 by virtue of the powers conferred on him under section 59 of the Act."}}, {"text": "section 44", "label": "PROVISION", "start_char": 6011, "end_char": 6021, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 6069, "end_char": 6079, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 6171, "end_char": 6181, "source": "regex", "metadata": {"statute": null}}, {"text": "section 44", "label": "PROVISION", "start_char": 6437, "end_char": 6447, "source": "regex", "metadata": {"statute": null}}, {"text": "section 44(2)", "label": "PROVISION", "start_char": 6494, "end_char": 6507, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 6554, "end_char": 6564, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 6607, "end_char": 6617, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 43", "label": "PROVISION", "start_char": 6691, "end_char": 6701, "source": "regex", "metadata": {"statute": null}}, {"text": "section 44(1)", "label": "PROVISION", "start_char": 7168, "end_char": 7181, "source": "regex", "metadata": {"statute": null}}, {"text": "section 44(2)", "label": "PROVISION", "start_char": 7241, "end_char": 7254, "source": "regex", "metadata": 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{"document_id": "1977_3_562_568_EN", "year": 1977, "text": "K VENKAMMA\n\nTHE GOVT. OF ANDHRA PRADESH & ORS.\n\nApril 14, 1977\n\n[\\I. R. KRISHNA !YER AND JASWANT SINGH, JJ.l\n\nMotor Vehicles Act, 1939-Whether a route who.'ie tennirii lie wilhi11 the sanze state but lrhich traverses in its course one or more other states be designated as \"inter state\" route-\"[nter State Route\"-Meaning of-Whether tlie proposed Nationalisation sc!te1ne of Nellore-Ra1napuram route passing over a short distance of 8 K.M. through Tamil Nadu invalid for want of approval of the Central Govern1nent under s. 68-D(3)-Motor l\"ehiCles Act, 1939 Ss. 2 28(A), 63(1)(4), 68-D(3) and S. 20 of the Road Transport Corpvrntiom (Central Act) Act-Scope of.\n\nThe Nellore-Ramapuram route passing over a short distance of 8 .K.111. through Tan1il Nadu was proposed to be nationalised by the Andhrai Pradesh Governntent. The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter-state route, noncompliance wilh S. 68-D(3) of the Motor Vehicles Act, 1939 aborted the Nationalisation. The High Court held that the decisive test turned on \\vhether both the termini fall within the same state and it did in this case and so on question of inter-state route arose.\n\nOn appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. [567H, 568 A-Bl\n\n(2) The definition of 'Route' in S. 2(28A) of the Act is not a notional line \"as the crow flies'' but the actual highway as a motor vehicle traYeres from one ternlinus to ainother.\n\nA route is transformed into an inter-state one, if the highway it covers passes through more than one state. An inter-state route may l; ie of the categories either connecting two states or traversing t\\vo or more states. [564 D-E]\n\n(3) Ordinarily-not invariably-the two termini test is ai working solution and not an inflexible formation.\n\nThe terinini test may lead to strange results, fatal to federal ideas.\n\nA route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, \\vithout doing violence to language, geography and federalism.\n\nAnd in the absence of a str.-utory definition of inter-state route non-violence to English and conformanr:e to commonsense dictate the adoption of the conventional n1eaning that if a route traverses more than one state it is inter-state. [564 B-C, D]\n\n(4) Undoubtedly, where the termini fall in different states the route is inter-state.\n\nBut that does not exclude other categories of inter-state route such as where it crosses a state other than the originating state although gets back into it later. If the territory of more than one state is covered even if both the termini eventually fall within the same stnte, the route is inter not intra-state. [564H, 565Al\n\nKazan Singh [1974) 2 S.C.R. 562; Aswatha11arayan v. State i 19661 1 SCR 87 op. 100-101. explained.\n\n(5) If the whole of the route lies within a single state it is intra. state and not inter-state, even though the road over which the route lies runs beyond the borders of that single state as national highways do.\n\nIt is elementary that there can be inter-state routes which run into or through more than one state. A part of that long route rnaiy itself be a separate route and B may fall wholly \\Vithin a single state in which case the former may be inter-state while the latter will be an intra-state route.\n\n[565G-H, 566A]\n\n(6) 1'here can be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State.\n\nIts extra-territorial effect depends on securing of prior Central Government approval under the proviso to Section 680(3). tlowever, the permit granted in orie state may still be valid in another state, if the condition specified in the 2nd proviso to section 63 ( 1) is fulfilled.\n\nThe portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m. and so no question of countersignature by the State Transport Authority or the Regional 'fransport Authority of Tamil Nadu arises.\n\nThe portion of the interstate route which fe1l \\Vitbin Andhra Pradesh stand nationalised and consequently exclude private operators.\n\nBut that strip of the inter-state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to S. 63(1) of the Motor Vehicles Act. [567 A-B, E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 796 of 1977.\n\nV. Ramana Reddy and M. L. Varma for the Appellant.\n\nP. P. Rao and G. N. Rao for Resp<:mdent 1-3.\n\n• P. Ramachandra Reddy, Advocate General and A. P. B. Parthasarathi for Respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nKausHNA IYER, J.-=-Nationalisation of road transport service is of strategic significance to the country's development and new legal issues arise as private operators, threatened with elimination, battle against such schemes.\n\nOne such obstacle to the proposed nationalisation of the route Nellore-Ramapuram by the Andhra Pradesh Government is the subject matter of this appeal by certificate, the High Court having considered it substantial and novel enough to qualify under Article 133 of the Constitution.\n\nThe point raised is short, the order under appeal brief, but the problem i's thorny, with extra-territorial overtones and anomies in application.\n\nCan a route, whose termini lie within the same State but which traverses in its course one or more other States, be designated as inter-state route ? If yes, then the exercise in nationalisation proposed by the respondent State cannot rr, atcrialise into an 'approved scheme' unless as desiderated by the proviBo to Section 68D(3) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'M. V. Act'), the previous approval of the Central Government is secured. Here, admittedly, no such approval has been obtained and the notified route does pass over a short distance of about\n\n. F\n\n8 km., through Tamil Nadu. The r_oute Nellore-Ramapuram was, according to counsel for the existing private operator, an inter-state route and non-compliance with Section 680(3) of M.V. Act aborted the nationalisation. The counter-submission by the State which appealed to the High Court was that the decisive test turned on whether both the termini fell within the same State and it did in this case. and so no question of inter-state route arose.\n\nAt the first flush, an inter-state route may be of two categorics. either connecting two states or traversing two or more states. Black's Legal Dictionary considers inter-state to mean 'Between two or more states; between places or persons in different states; concerning or affecting two or more states politically or territorially.' And that accords with commonsense . The 'termini test' as presenied by counsel for the State, may lead to strange results, fatal to federal ideas. A route which originates in Srinagar, runs down South to Kanya Kumari and rises North to end again in Kashmir, completing a Bharat dar.l!wn, cannot sensibly be called an intrastate one, without doing gross violence to language, geography and federalism. And in the absence of a statutory definition of inter-state route, non-violence to English and conformance to commensense dictate the adoption of the convention:tl meaning that if a route traverses more than one state it is inter-state.\n\nThe statutory sensitivity to one State permitting stage carriages from within its territory into another is reflected in Section 63 (1) and ( 4). 680(3) proviso and Section 20 of the Road Transport Corporation Act. 1950.\n\nWe are skirting the constitutional question of extraterritorial powers but are confining ourselves to a mere interpretation of the provisions of the Act. 'Route' is defined in Section 2 (28A) to mean a • line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. The point is that it is not a notional line 'as the crow flies' but the actual highway as a motor vehicle travels from one terminus to another. The inference is inevitable that a route is transformed into an interstate one, if the 'highway it covers passes L'irough more than one State .\n\nThis easy breakthrough is seemingly obstructed by two rulings of this Court relied on by counsel for the State, although the High Court while granting the certificate, felt that these decisions did not rea.Jly cover the case on hand.\n\nKhazan Singh(') dealt with a case where the termini of the concerned routes were located in different states and so, by any test, were inter-state routes.\n\nThere, in passing and not as ratio of the case, an observation fell from the Court :\n\n\"An inter-state route is one of which one of the termini falls in one State and the other in another State.\"\n\nUndoubtedly, where the termini fall in diffennt states the route is inter-state. But that does not exclude other categories of inter-state routes such as where it crosses a State other than the originating State ·--------- (!) [1974] f2l S.C.R. 502\n\nalthough gets back into it later. If the territory of more than one State\n\nis covered, even if both the termini eventually fall within the same state, the route is inter, not intra-state. Ordinarily-not invariablythe 'two termini' test is a working solution, not an inflexible formula.\n\nAswatharwrayan v. State (') had something to say on inter-state route :\n\n\"An inter-State route is one in which one of the termini is in one State and the other in another State. fn the present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme covers roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route.\n\nFor example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States.\n\nBut any portion of it within a State or even within a District or a sub-div;'sion can be a route for purposes of stage carriages or goods vehicles.\n\nThat would not make such a route a part of an inter-State route even though it lies on a rood which runs through many States. The criterion is to see whether the two termini of the route are in the same state or not. If they are in the same State, the route is not an inter- State route and the proviso to S. 68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme docs not deal with inter-State routes at a11, and the contention on this head must be rejected.\" (emphasis supplied).\n\nThe facts and discussion bear out abundant, ly that there is nothing in the ruling to suggest that even if a route traverses territory of another State it is n0ne-the-lcss an intra-State route if the points of beginning and ending fall within one State. It is a fallacy so to construe that decision.\n\nWhat is repelled in that case is the contention that if a high-way run through many States, any portion of that high-way which is picked out for running a bus service as a route, should also be deemed to be inter-state for the only reason that such a route (though its entire length falls within a single State) overlaps a road which crosses many States. The very definition of route in Section 2 (28-A) is sufficient to extinguish that argument and this Court rightly. if we may so with respect, rejected it.\n\nWe cannot confuse between road and route. If the whole of the route lies within a single State it is intra-state and not inter-state, even though the road over which the route lies runs beyond the borders of that single State as national highways do.\n\nIn Abdul Khader Saheb( 2) a totally untenable submission was put forward and unhesitatingly turned down that if the nationalised route fell within a single State it should nevertheless be regarded as inter- State route for some mystical reason, viz., that it overlaps a longer route which is admittedly an inter-State route. It is elementary that\n\n(I) (t966] (!) S.C.R. 87 at PP.100-101.\n\n(2) [1973] 2 S.CR. 925.\n\nthere can be inter-state routes which run into or through more than one State. A part of that long route may itself be a separate route and may fall wholly wthin a single State in which case the former may be inter-state while the latter will be an intra-state route.\n\nIn Abdulkhader' s (') case the Court observed :\n\n\" .. The Bellary scheme provides for nationalisation of an intra-State route and not an inter-State route and the aforesaid provision can have no applicability .\n\n. . . . . . If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State Route. It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many Sates and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route part of an inter-State route even though it lies on the road which runs through many States.\n\nThe above argument can possibly have no validity so far as the present case is concerned.\n\nThe scheme which was under consideration in the decision relied upon was in respect of an intra-state route. It appears to have been argued that as the scheme was concerned with an inter-state route the approval of the Central Government was necessary as required under the proviso to Section 630(3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-state route at all and no question arose of the applicability Gf the proviso to s. 680(3). In the present case there is no scheme of nationalisation relating to the inter-state route from Bellary to Mantbralaya. The Bellary Scheme is confined to the intra-state routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 680.\"\n\nNo further comment is necessary.\n\nWe are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter-state. What is the effect of this finding over the scheme of nationalisation ? Wholly invalidatory ? or else, what? The proviso to Section 680(3) i.e. Central Government approval has not been compiled with and so qua inter-state route the nationalisation does not become effective.\n\nEven so, two factors can together salvage this nationalisation scheme.\n\n(I) [1973] (2) SCR 925.\n\nThere can be no doubt that the scheme notified by one State wiil, even in the case of an inter-state route, operate to the extent it lies within that State.\n\nIts extra-territorial effect depends on securing of prior Central approval under the proviso to Section 680(3). That being absent, the permit granted in one State may still be vlid in another State if the condition specified in the 2nd proviso to Section 63 (1 ). is fulfilled. We may as well extract Section 63(1) to that extent relevant.\n\n\"63. Validation of permits for use outside region in which granted-( 1) Except as may be otherwise prescribed, a perm.it granted by the Region\"1 Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned : x x x ...... Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been counter-signed by the State Transport Authority or the Regional Transport Authority of that other State,\" -\n\nThe portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 km. and so no question of counter-signature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu State arises. The conclusion follows that the portions of the inter-state route which fall within Andhra Pradesh stand nationlised, and consequently excludes private operators. But that strip of the inter-state route which falls within Tamil Nwu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63(1) of the M.V. Act.\n\nWe may point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of uch intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so\n\nfar as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but ( d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act. In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit the appellant.\n\nIn the circumstances, while dismissing the appeal, wc direct the parties to suffer their costs throughout.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 77, "entities": [{"text": "K VENKAMMA", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "K VENKAMMA", "offset_not_found": false}}, {"text": "THE GOVT. OF ANDHRA PRADESH & ORS", "label": "RESPONDENT", "start_char": 12, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "THE GOVT. OF ANDHRA PRADESH & ORS", "offset_not_found": false}}, {"text": "April 14, 1977", "label": "DATE", "start_char": 48, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "April 14, 1977\n\n[\\I. R. KRISHNA !"}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 89, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 110, "end_char": 134, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 68", "label": "PROVISION", "start_char": 520, "end_char": 525, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "Cles Act, 1939", "label": "STATUTE", "start_char": 542, "end_char": 556, "source": "regex", "metadata": {}}, {"text": "Ss. 2", "label": "PROVISION", "start_char": 557, "end_char": 562, "source": "regex", "metadata": {"linked_statute_text": "Cles Act, 1939", "statute": "Cles Act, 1939"}}, {"text": "S. 20", "label": "PROVISION", "start_char": 592, "end_char": 597, "source": "regex", "metadata": {"linked_statute_text": "Cles Act, 1939", "statute": "Cles Act, 1939"}}, {"text": "Nellore", "label": "GPE", "start_char": 665, "end_char": 672, "source": "ner", "metadata": {"in_sentence": "The Nellore-Ramapuram route passing over a short distance of 8 .K.111."}}, {"text": "S. 68", "label": "PROVISION", "start_char": 974, "end_char": 979, "source": "regex", "metadata": {"linked_statute_text": "Cles Act, 1939", "statute": "Cles Act, 1939"}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 992, "end_char": 1016, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramapuram", "label": "GPE", "start_char": 1293, "end_char": 1302, "source": "ner", "metadata": {"in_sentence": "On appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. ["}}, {"text": "Central Government", "label": "ORG", "start_char": 1427, "end_char": 1445, "source": "ner", "metadata": {"in_sentence": "On appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. ["}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 1487, "end_char": 1501, "source": "ner", "metadata": {"in_sentence": "On appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. ["}}, {"text": "Tamil Nadu", "label": "GPE", "start_char": 1586, "end_char": 1596, "source": "ner", "metadata": {"in_sentence": "On appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. ["}}, {"text": "Andhra Pradesh State Transport Corporation", "label": "ORG", "start_char": 1745, "end_char": 1787, "source": "ner", "metadata": {"in_sentence": "On appeal by certificate the court\n\nHELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. ["}}, {"text": "S. 63", "label": "PROVISION", "start_char": 1933, "end_char": 1938, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 1952, "end_char": 1970, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 2(28A)", "label": "PROVISION", "start_char": 2022, "end_char": 2031, "source": "regex", "metadata": {"statute": null}}, {"text": "Srinagar", "label": "GPE", "start_char": 2612, "end_char": 2620, "source": "ner", "metadata": {"in_sentence": "A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, \\vithout doing violence to language, geography and federalism."}}, {"text": "Kanyakumari", "label": "GPE", "start_char": 2641, "end_char": 2652, "source": "ner", "metadata": {"in_sentence": "A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, \\vithout doing violence to language, geography and federalism."}}, {"text": "Kashmir", "label": "GPE", "start_char": 2685, "end_char": 2692, "source": "ner", "metadata": {"in_sentence": "A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, \\vithout doing violence to language, geography and federalism."}}, {"text": "[1974) 2 S.C.R. 562", "label": "CASE_CITATION", "start_char": 3512, "end_char": 3531, "source": "regex", "metadata": {}}, {"text": "Section 680(3)", "label": "PROVISION", "start_char": 4398, "end_char": 4412, "source": "regex", "metadata": {"statute": null}}, {"text": "section 63", "label": "PROVISION", "start_char": 4543, "end_char": 4553, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh State Transport Buses", "label": "ORG", "start_char": 5152, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "But that strip of the inter-state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to S. 63(1) of the Motor Vehicles Act. ["}}, {"text": "S. 63(1)", "label": "PROVISION", "start_char": 5248, "end_char": 5256, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 5264, "end_char": 5282, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5300, "end_char": 5328, "source": "ner", "metadata": {"in_sentence": "567 A-B, E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "V. Ramana Reddy", "label": "LAWYER", "start_char": 5362, "end_char": 5377, "source": "ner", "metadata": {"in_sentence": "V. Ramana Reddy and M. L. Varma for the Appellant."}}, {"text": "M. L. Varma", "label": "LAWYER", "start_char": 5382, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "V. Ramana Reddy and M. L. Varma for the Appellant."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 5414, "end_char": 5423, "source": "ner", "metadata": {"in_sentence": "P. P. Rao and G. N. Rao for Resp<:mdent 1-3."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 5428, "end_char": 5437, "source": "ner", "metadata": {"in_sentence": "P. P. Rao and G. N. Rao for Resp<:mdent 1-3."}}, {"text": "P. Ramachandra Reddy", "label": "LAWYER", "start_char": 5462, "end_char": 5482, "source": "ner", "metadata": {"in_sentence": "• P. Ramachandra Reddy, Advocate General and A. P. B. Parthasarathi for Respondent No."}}, {"text": "A. P. B. Parthasarathi", "label": "LAWYER", "start_char": 5505, "end_char": 5527, "source": "ner", "metadata": {"in_sentence": "• P. Ramachandra Reddy, Advocate General and A. P. B. Parthasarathi for Respondent No."}}, {"text": "KausHNA IYER", "label": "JUDGE", "start_char": 5595, "end_char": 5607, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKausHNA IYER, J.-=-Nationalisation of road transport service is of strategic significance to the country's development and new legal issues arise as private operators, threatened with elimination, battle against such schemes."}}, {"text": "Andhra Pradesh Government", "label": "ORG", "start_char": 5910, "end_char": 5935, "source": "ner", "metadata": {"in_sentence": "One such obstacle to the proposed nationalisation of the route Nellore-Ramapuram by the Andhra Pradesh Government is the subject matter of this appeal by certificate, the High Court having considered it substantial and novel enough to qualify under Article 133 of the Constitution."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 6071, "end_char": 6082, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 68D(3)", "label": "PROVISION", "start_char": 6568, "end_char": 6582, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 6590, "end_char": 6614, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Nellore-Ramapuram", "label": "GPE", "start_char": 6878, "end_char": 6895, "source": "ner", "metadata": {"in_sentence": "The r_oute Nellore-Ramapuram was, according to counsel for the existing private operator, an inter-state route and non-compliance with Section 680(3) of M.V. Act aborted the nationalisation."}}, {"text": "Section 680(3)", "label": "PROVISION", "start_char": 7002, "end_char": 7016, "source": "regex", "metadata": {"linked_statute_text": "the Motor Vehicles Act, 1939", "statute": "the Motor Vehicles Act, 1939"}}, {"text": "Black", "label": "OTHER_PERSON", "start_char": 7419, "end_char": 7424, "source": "ner", "metadata": {"in_sentence": "Black's Legal Dictionary considers inter-state to mean 'Between two or more states; between places or persons in different states; concerning or affecting two or more states politically or territorially.'"}}, {"text": "Kanya Kumari", "label": "GPE", "start_char": 7828, "end_char": 7840, "source": "ner", "metadata": {"in_sentence": "A route which originates in Srinagar, runs down South to Kanya Kumari and rises North to end again in Kashmir, completing a Bharat dar.l!wn, cannot sensibly be called an intrastate one, without doing gross violence to language, geography and federalism."}}, {"text": "Section 63", "label": "PROVISION", "start_char": 8384, "end_char": 8394, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 8428, "end_char": 8438, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8661, "end_char": 8670, "source": "regex", "metadata": {"statute": null}}, {"text": "Khazan Singh", "label": "JUDGE", "start_char": 9332, "end_char": 9344, "source": "ner", "metadata": {"in_sentence": "Khazan Singh(') dealt with a case where the termini of the concerned routes were located in different states and so, by any test, were inter-state routes."}}, {"text": "Mysore", "label": "GPE", "start_char": 10630, "end_char": 10636, "source": "ner", "metadata": {"in_sentence": "It is urged that part of the scheme covers roads which continue beyond the State and connect various points in the State of Mysore with other States."}}, {"text": "Calcutta", "label": "GPE", "start_char": 10827, "end_char": 10835, "source": "ner", "metadata": {"in_sentence": "For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States."}}, {"text": "Amritsar", "label": "GPE", "start_char": 10839, "end_char": 10847, "source": "ner", "metadata": {"in_sentence": "For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States."}}, {"text": "S. 68", "label": "PROVISION", "start_char": 11336, "end_char": 11341, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 12256, "end_char": 12265, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul Khader Saheb", "label": "OTHER_PERSON", "start_char": 12635, "end_char": 12653, "source": "ner", "metadata": {"in_sentence": "In Abdul Khader Saheb( 2) a totally untenable submission was put forward and unhesitatingly turned down that if the nationalised route fell within a single State it should nevertheless be regarded as inter- State route for some mystical reason, viz.,", "canonical_name": "Abdul Khader Saheb"}}, {"text": "[1973] 2 S.CR. 925", "label": "CASE_CITATION", "start_char": 13025, "end_char": 13043, "source": "regex", "metadata": {}}, {"text": "Abdulkhader", "label": "OTHER_PERSON", "start_char": 13318, "end_char": 13329, "source": "ner", "metadata": {"in_sentence": "In Abdulkhader' s (') case the Court observed :\n\n\" .. The Bellary scheme provides for nationalisation of an intra-State route and not an inter-State route and the aforesaid provision can have no applicability .", "canonical_name": "Abdul Khader Saheb"}}, {"text": "Bellary", "label": "GPE", "start_char": 13802, "end_char": 13809, "source": "ner", "metadata": {"in_sentence": "It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route."}}, {"text": "Chintakunta", "label": "GPE", "start_char": 13810, "end_char": 13821, "source": "ner", "metadata": {"in_sentence": "It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route."}}, {"text": "Section 630(3)", "label": "PROVISION", "start_char": 14679, "end_char": 14693, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 680(3)", "label": "PROVISION", "start_char": 14895, "end_char": 14904, "source": "regex", "metadata": {"statute": null}}, {"text": "Mantbralaya", "label": "GPE", "start_char": 15014, "end_char": 15025, "source": "ner", "metadata": {"in_sentence": "In the present case there is no scheme of nationalisation relating to the inter-state route from Bellary to Mantbralaya."}}, {"text": "Manthralaya", "label": "GPE", "start_char": 15210, "end_char": 15221, "source": "ner", "metadata": {"in_sentence": "It may be that that portion overlaps the inter-state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 680.\""}}, {"text": "State of Mysore", "label": "ORG", "start_char": 15296, "end_char": 15311, "source": "ner", "metadata": {"in_sentence": "It may be that that portion overlaps the inter-state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 680.\""}}, {"text": "s. 680", "label": "PROVISION", "start_char": 15336, "end_char": 15342, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 680(3)", "label": "PROVISION", "start_char": 15612, "end_char": 15626, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 680(3)", "label": "PROVISION", "start_char": 16115, "end_char": 16129, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63", "label": "PROVISION", "start_char": 16266, "end_char": 16276, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 63(1)", "label": "PROVISION", "start_char": 16320, "end_char": 16333, "source": "regex", "metadata": {"statute": null}}, {"text": "Regional Transport Authority of Tamil Nadu State", "label": "ORG", "start_char": 17596, "end_char": 17644, "source": "ner", "metadata": {"in_sentence": "and so no question of counter-signature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu State arises."}}, {"text": "Andhra Pradesh", "label": "ORG", "start_char": 17978, "end_char": 17992, "source": "ner", "metadata": {"in_sentence": "But that strip of the inter-state route which falls within Tamil Nwu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63(1) of the M.V. Act."}}, {"text": "Section 63(1)", "label": "PROVISION", "start_char": 18074, "end_char": 18087, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 18128, "end_char": 18138, "source": "regex", "metadata": {"statute": null}}, {"text": "Road Transport Corporations Act", "label": "STATUTE", "start_char": 18146, "end_char": 18177, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 63(1)", "label": "PROVISION", "start_char": 18539, "end_char": 18552, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh Sate Transport Corporation", "label": "ORG", "start_char": 19092, "end_char": 19133, "source": "ner", "metadata": {"in_sentence": "We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so\n\nfar as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but ( d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act."}}, {"text": "Section 63(1)", "label": "PROVISION", "start_char": 19278, "end_char": 19291, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_569_577_EN", "year": 1977, "text": "MISTRY PREMJIBHAI VITHALDAS A v.\n\nGANESHBHAI KESHA VJI\n\nApril 14, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ..]\n\nBombay Rents, Hotel and Lodgi11,:: !louse Rates Control Act, 1947-PrQtection against eriction-Prote.ction under sec. 12 (3) ( b), when ava!lab!e-- Statutory powers of the Court under s. 12 of the Act.\n\nUnder s. 12(1) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, a tenant is entitled to claim protection from eviction so long as be is willing and ready to pay the standard rent as defined in s. 5(10) C and permitted increases and observes other conditions of the Act.\n\nThe prOtection is subject to the limitations contained in s. 12(2) and 12(3). Under s. 12(3 )(a) where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of 6 months or more and the tenant neglects to make payment thereof uµtil the expiration of the period of one month ad'ter notice referred to in sub-section ( 2) , the court may pass a decree for eviction in any such suit for recovery of possession.\n\nUnder s. 12(3)(b) no decree for eviction shall be passed in any suit if on the first day 0, of hearing of the suit or on or before such other date as the court may fix, the tenant pay3 or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regulairly such rent and pern1itted increases till the suit is finally 'decided and also pays costs of the suit as directed by the court.\n\nThe respondent-tenant was in arrears of rent amounting to Rs. 990/ - for the period from 6th March 1967 to 5th December 1969, house tax amounting E to R~. 27.49 and electricity charges amounting to Rs. 210.18.\n\nThe appellant- Jandlord served a notice upon him under s. 106 of the Transfer of Property Act terminating the tenancy and filed a suit for eviction.\n\nThe respondent filed an application for fixation of the standard rent within a month under\n\n1. 11(2) of the Act.\n\nHe also filed an application for fixation of interitn rent on the &round that he being a poor man was unable to pay rent and the total amount due at once.\n\nOn these applications, the interim rent wa<> fixed at !ls. 25/- by Ml order dated 3-2-1970 and he was directed to deposit arrears of rent and future rent at this rate on or before 10th of the next F month.\n\nThese applications were dismissed for non-prosecution later on.\n\nThe trial court helcl that as the respondent-tenant was \"ready and willing\" to pay the rent to the appellant-landlord, the suit for ejectment could not be decreed in spite of the fact it found that the notice was validly issued and the arrears were true and correct. The appellate court held that the unwillingness of the respo.Qdent to pay the rent which was apparent from the patent focts and admis3ions and conduct disentitled .him from the protection under s. 12 and decreed the suit for ejectment. The High Court. however, relying on an affidavit dated 18-9-75 filed by the respondent allowed the revision application G made by him under s. 29(2) of the Act.\n\nAllo\\ving the nppea•l by special leave, the Court.\n\nHELD : (1 )_ Te tatutory !'rotection can only be given in accordance with the terms on which it 18 pernuss1ble. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not confer a po, ver ur:ion the court to excue a violati_on of the provisions of the Act by making 'vrong assumptions or n compassionate grounds. The Court. could not. therefore, exercise what would H be in effect a power to condone infringement of the Act.\n\n[575F, 576B]\n\n(2) In cases \\\\here there is no dispute regarding the amount of standard rent if the proYisions of s. 12(3) (a) are not sho, vn to be complied with,\n\n. A\n\nthe Court is boud !o pass a de_crec for eviction.\n\nWhere ,1 tenant does not\n\nprosecut~ a~ appllcatton for fiaton o.f standard rent and delibe1ately permits lo be dismissed for non-prosecution, 1t could be reasonably inferred that it was not a bona fide application at all. [575 G-H, 576 AJ\n\n. (3) A fixation of. standard. rent can o?IY tak.e place by means of the sr, ec1fied procedure provided for it.\n\nThere ts nothing in the instant case whi•:::h could be \"deemed\" a fiation under the Act.\n\nIt being admitted that -the agreed rent was Rs. 30 /- per mensem that would be the standard rent as defined by s. 5(10) of the Act.\n\nThaL was the rale on which the rent v1as payable.\n\nNon-prosecution of the application for standard rent indicate tbat there was no real dispute regarding standard rent or permitted increases.\n\n[571A 573G, 575FG]\n\n( 4) Section 12 (3) (b) applies only to cases where c; ther on the first hearing of the suit or on such other dates as the court may fix for the purpose, the tenant pa.ys or tenders in court the standard rent with permitted increases.\n\nIn the instant case the respondent did not comply with the orders dated 3-2-1970 fixing the interim rent.\n\nUnder the order dated 3-2-1970, the tenant had to deposit arrears of rent and in addition he had to deposit future rent at the rate fixed for the interim rent.\n\nThe part of the order for future rent could not refer to arrears of rent.\n\nIf the tenant was not quite clear about the n1eaning of the order, he could have applied to the court to clarify the orders and could have gone on depositing rent at Rs. 25 /- per month after depositing arrears of rent so clarified.\n\n[575 FG, 574 B-C]\n\nVora Abbashai Afin1aho111cd v. Hnji Gulan1nabi !Jaji Safibl1ai [1964] 5 S.C.R. 157. referred to.\n\n(5) 'The readiness and willingness of the tenant to pay could be found only if he had complied with the provisions of the Act.\n\nThe Act does not cover the asc of a person who is unable to pay O\\ving to want of Jneans but is otber, vise \"ready and \\villing\".\n\nThe Act, unfortunately, does not enable courts to n1ake speciad. Jaw for such hard cases which fall outside the ' statutory protection.\n\nThe instant case is clearly outside the protection con~ E ferred upon tenants under s. 12 of the Act. The tenant could not be said o be \"ready and \\Villing\" to pay the rent so as to avoid passing of a decree for eviction against him, in the face of detailed findings given by the appellate court.\n\nAfter assuming quite erroneously that the standard rent was fixed for the first time in the appellate court and by accepting the version of the tenant-respondent that his default was due to his difficulty in finding money to pay the rent, the High Court had erroneously condoned all de.faults in payment of rent right upto the time of the making of the application before F\n\nit on 18-9-1975. [576 B-G]\n\nShah Dhansukhlal Cl1aganlnl v. Dalichand Virchand Shroff & Ors. [19681 3 S.C.R. 346 applied.\n\nC1VIL APPELLATE JURISDICTION : Civil Appeal No. 217 of 1976.\n\nAppeal by Special Leave from the Judgment and Order of the Gujarat High Omrt dt. 18th/19th September, 1975 in Civil Revision Appln. No. 67 of 1973.\n\nP.H. Parekh, Ajit R. Oza, Kai/ash Vasdev and (Miss) Manju Jatley for the Appellant.\n\nM. V. Goswami for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThis is a landlord's appeal by special leave against the judgment and order of the High Court ot Gujarat allowing a revision application of the tenant under section 29 (2) of the Bombay Rents.\n\n...\n\nHotel and Lodging House Rates Control Act, 1947 Qhereinafter refeIT- A ed to as 'the Act')\n\nIt appears from the statement of facts in the judgment of the Hig)l Court that there was no dispute that the monthly rent of the premises was Rs. 30 /- and that the tenant had also to pay the charges for electricity consumed by him. It was, however, at first disputed whether the tenant had to pay house tax and the education cess also.\n\nThe landlord had brought a suit for arrears of rent amounting to Rs. 990/- from 6-3-67 to 5-12-69 and also to recover a sum of Rs. 27.49 paid as house tax and another sum of Rs. 210.18 paid by the landlord for the electricity consumed by the tenant.\n\nOn 5-1-1970, the landlord had served a notice upon the tenant terminating the tenancy on the ground that dues amounting to Rs. 1227.67 had not been paid.\n\nThe tenant filed an application for fixation of the standard rent within a month of, the service of the above-mentioned notice. He also filed an application for fixation of interim rent on the ground that he, being a poor man, was unable to pay rent and the total amount due at once.\n\nOn these applications, the interim rent was fixed at Rs. 25/- and the applicant was directed \"to\n\ndeposit 31Tears of rent and future rent at this rate on or bfore 10th of the next month\".\n\nD Although, the trial Court held the notice terminating the tenancy to be legally valid and the agreed rate of rent to be Rs. 30/- p.m., so that the plaintiff was entitled to the decree for arrears of rent from 6-3-67 to 5-12-1969 and also the amount of Rs. 27.49 as house tax and Rs. 210.18 towards electricity charges, making up the total of Rs. 1227.67, yet, it held that as the defendant-tenant was \"ready and willing\" to pay the rent to the plaintiff.\n\nHence, the suit for ejectment could not be decreed.\n\nE The appellate Co'-'!'t, on the other hand, held that the unwillingness of . the dfendant-respondent to pay the rent, which was apparent from the patent facts and admissions and conduct of the defendant-respondent, disentitled him for protection sought.\n\nIt, therefore, decreed the suit for ejectment.\n\nLearned counsel for the appellant has contended that the High Court F had proceeded upon the wrong assumption that the standard rent was\n\nfixed in the lower appellate Court for the first time when the appeal wa's decided.\n\nIt is very difficult to find the basis for this opinion of the High Court.\n\nThe application for fixing the standard rent, initiating a separate proceeding, was dismissed, as is admitted on behalf of the tenantrespondent, for non-prosecution.\n\nHence, no standard rent could be fixed u/s. J l. Section 5, sub-s. (10) defines standard rent as G follows:-\n\n5. Definitions.-In this Act unless there is anything repugnant to the subject or context-\n\n(10) \"Standard rent\" in relation to any premises means--\n\n(a) \"Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939 (Bom. XVI of 1939), or the\n\nBombay Rents, Hotel and Lodging House Rates (Control) Act, 1944 (Bombay VII of 1944), such standard rent; or\n\n(b) where the standard rent is not so fixed subject to the provisions of section 11,\n\n(i) the rent at which the premises were let on the first day of September 1940, or\n\n(ii) where they were not let on the first day of September 1940, the rent at which they were first let before that day, or\n\n(iii) where they were first let after the first day of September 1940, the rent at which they were first let, or\n\n(iv) in any of the cases specified in section 11, the rent fixed by the Court\".\n\nD Both the sides before us are agreed that no question of a standard\n\nrent actually and finally fixed u/s. 11 of the Act arose in the circumstances of this case.\n\nSection 11 of the Act reads as follows :-\n\n\"11. Court may fix standard rent and permit increases in certain cases.\n\n( l) In any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard to the provisions of this Act and the circumstances of the case, the Court deems just-\n\n( a) where any premises are first let after the specified date and the rent at which they are so let L' in the opnion of the Court excessive; or\n\n(b) where the.Court is satisfied that there is no sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in su!Klauses ( i) to (iii) of clause (b) of sub-section (10) of section 5; or\n\n(c) where by reason of the premises having been let at one time as a whole or in parts and at another tin1e in parts or as a whole, or for any other reasons, any difficulty arises in giving effect to this Part; or ( d) where any premises have been or are let rent.- free or at a nominal rent or for some consideration in addition to rent; or\n\n( e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent..\n\n. J\n\n(2) If there is any dispute between the landlord and the A tenant regarding the amount of permitted increases the court may determine such amount.\n\n( 3) If an application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a notice from his landlord under subsection (2) of section 12, the Court shall make an order\n\ndirecting the tenant to deposit in Court forthwith and thereafter monthly or periodically, such amount of rent or permitted increases as the Court considers to be reasonably due to the landlord pending the final decision of the application, and a copy of such order shall be served upon the landlord. Out of the amount so deposited, the Court may make order for the payment of such reasonable sum to the landlord towards payment of rent or increases due to him, as it thinks fit. If the tenant fails to deposit such amount, his application shall be dismissed.\n\n( 4) Where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed the Court shall, and in any other case if it appears to the Court that it is just and proper to make such an order the Court may, make an brder directing the tenant to deposit in Court forthwith such amount of rent as the Court considers to oo reasonably due to the landlord.\n\nThe Court may further make an order directing the tenant to deposit in Court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit.\n\nThe Court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it he shall not be entitled to appear in or defend the suit except with leave of the Court which leave may be granted subject to such terms and conditions as the court may specify.\n\n(5) No appeal shall lie from any order of the Court made under sub-section ( 3) or ( 4) .\n\n( 6) An application under this section may be made jointly by all or any of the tenants interested in respect of the premises situated in the same building\".\n\nA \"fixation\" oJ standard rent can only take place by means of the specified procedure provided for it.\n\nThere is nothing in the case before us which could be \"deemed\" a fixation under the Act.\n\nApparently, the High Court thought that the dismissal of an application for fixation of rent meant an automatic \"fixation\" of it at Rs. 30/- p.m.\n\nIn the face of detailed findings given by the Appellate Court,, which the. High Court could not upset without a good enough legal ground for\n\n10-502 SCI/77\n\ndoing so and did not actually set aside, it is difficult to see haw the tenant could be said to be \"ready and willing\" to pay the rent so as to avoid passing of a decree for eviction against him.\n\nOn behalf of the landlord appellant, it is submitted that, in an affidavit dated 18-9-75, which the respondent himself filed in the High Court, it is admitted that the tenant had not been paying the rent regularly as contemplated by the order of 3-2-70.\n\nUnder that order, the tenant had to deposit arrears of rent. In addition, he had to deposit future rent at the rate fixed for the \"interim rent\". The part of the order for future rent could not refer to arrears of rent.\n\nHowever, if the tenant was not quite clear about the meaning of the order, he could have applied to the Court to clarify the order and could have gone on depositing rent at Rs. 25 /- p.m. after depositing \"arrears of rent\" so clarified. Learned counsel for the respondent could only contend that the deposit of future rent on or before the 10th of the next month indicated that the deposit could be made at any time before the rent was due and could . cover subsequent accruals of rent so that it could cover several months if amount deposited was enoug'.: 'x that.\n\nLearned counsel for the appellant points out that the in1erpretation put forward on behalf of the respondent tenant is not only an unreasoTuable one but would not, even if accepted, justify defaults admitted by the respondent tenant even if an advance deposit could wipe off the effects of some defaults.\n\nThe High Court had itself not only not set aside the finding relating to the defaults found by the appeilate court, but, after assuming, quite erroneously, that the standard rent was fixed for the first time in the Appeilate Court, it had condoned ail defaults in payment of rent right up to the time of the making of the application before the High Court on 18-9-75 and the acceptance of a fresh deposit in the High Court itself to cover the arrears.\n\nThe question is whe:ther the statutory powers of the Court laid down in s. 12 of the Act could be used in this manner.\n\nSection 12 of the Act reads as foilows :-\n\n\"12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases--(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.\n\n(2) No suit for recovery of possession shall be institut<:d by a landlord against a tenant on the ground of non-pant of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.\n\n' ..\n\n' •\n\n(3) (a). Where the rent is payable by the month and there is no dispute regardilng the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.\n\n(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.\n\n( 4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.\n\nExplanation-In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount, if, before the expiry of the period of one month after notice referred to in sul>-section (2),, he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent 9r permitted increases specified in the order made by the Court\".\n\nIn Vora Abbasbhai Alimahomed v.\n\nHaji Gu/amnabi Haji Safibhai,(') it was held that, according to s. 12(3) (a) of the Act, the\n\nCourt was bound to pass the decree for eviction if statutory terms are l)Ot complied with.\n\nThe answer given on behalf of the respondent• tenant was that the case before us is governed by the provisions at s. 12(3 )(b) of the Act.\n\nBut, this section applies only to cases where either on the date of first hearing of the suit or on such other dates as the Court may fix for the purpose, the tenant pays or tenders in Court the standard rent with permitted increases. It was laid down in Abbasbhai's case (supra) that the explanation to s. 12 introduces only a rule of evidence.\n\nIt appears to us that where. a tenant does not prosecute. an application for fixation of standard rent and deliberately permits it to be dismissed for non-prosecution it could be rel18Qnably inferred that it was not a bona fide application at all.\n\nIn the case before us, it being admitted that the agreed rent was Rs. 301p.m. that should be the \"standard rent\" as defined by s. 5 (10) of the Act.\n\nThat was the rate . at which rent was payable.\n\nNon-prosecution of the application for\n\n(l) [196\\] 5 SC.R. 157.\n\nstandard rent indicated that there was no real dispute regarding the standard rent or permitted increases. In snch cases, if the provisions of s. 12(3) (a) are not shown to be complied with, the Court is bound to pass a decree for eviction.\n\nThe statutory protection can only be given in accordance with the terms on which it is permissible.\n\nThe Act certainly does not confer a power upon the Court to excuse a violation of the provisions of the Ac:t by making wrong assumptions or on compassionate grounds.\n\nThe Court could not, therefore, exercise what would be, in effect, a power to condone infringement of the provisions of the Act.\n\nIn Shah Dhansukhlal Chhaganlal v. Dalichand' Virchand Shroff & Ors.,(') this Court explained the provisions of s. 12 of the Act and laid down that a failure to deposit the rent regularly as required by the Act will take the case out of the provisions of s.12 ( 3) (b).\n\nOn facts found, there was such a failure to deposit in the case before us.\n\nThe High Court appears to have condoned the defaults by accepting the version of the defendant-respondent that the default was due to his difficulty iu finding money to pay up the rent.\n\nHence, 0n the admission of the defendantrespondent also, it seems a clear case of defaults which deprive the defendant-respondent of the protection of s. 12 of the Act.\n\nLearned coun.sel for the plaintiff-appellant has, very rightly, pointed out that the High Court had not set aside the findings of the fact arrived at by the appellate Court which took the case of the defendant-respon- dent clearly outside the protection conferred by the Act The High Court seems to have accepted the erroneous view that 'standard rent wa5\n\nactually fixed by the appellate Court for the first time. whereas what had happened was that the application for fixation of standard rent had been dismissed for non-prosecution. This was not \"fixation\" of standard rent, as already pointed out.\n\nHence, no question of giving time to pay up arrears after a \"fixation\" of standard rent arose here. We think that the case is clearly outside the protection conferred upon tenant:; under the Act.\n\nThe readiness and the willingness of the tenant to pay could be found only if he had complied with the provisions of the Act. The Act does not cover the case of a person who is unable to pay owing to want of means but is otherwise \"ready and willing\".\n\nSuch a case is no doubt a hard one, bnt, unfortunately, it does not enable Courts to make G a special law for such. hard cases which fall outside the statutory protection.\n\nWe understand that the defendant-respondent is a Carpenter. If he is unable to find means to pay rent we cannot dismiss the suit for his eviction on the ground of non-payment of rent.\n\nIn view of his disability, on account of alleged illness, we propose to modify the decree of the appellate Court to the extent that he will have four months' time from 5th April 1977 before the eviction order can be executed against him provided he deposits within a month from today all the arrears due\n\n\nMISTRY PREMJIBHAI v. GANESHBHA! (Beg, C. J.) 57 7\n\nand goes on depositing Rs. 30/- p.m. regularly, in advance, before the A 5th of each month on which his tenancy begins.\n\nHe must,, however, vacate the premises before 5th August, 1977, and may leave it earlier if he is unable to pay the required reut regularly in advance.\n\nThe decree for eviction will become executable on breach of the conditions laid down, or, after 5th August, 1977.\n\nThe result is that we set aside the judgment and order of the High B •.\n\nCourt and restore the decree of the appellate Court subject to the modifiction indicated above.\n\nThe parties will bear their own costs.\n\nS.R.\n\nAppeal allowed.", "total_entities": 64, "entities": [{"text": "MISTRY PREMJIBHAI VITHALDAS", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "MISTRY PREMJIBHAI VITHALDAS", "offset_not_found": false}}, {"text": "GANESHBHAI KESHA VJI", "label": "RESPONDENT", "start_char": 34, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "GANESHBHAI KESHAVJI", "offset_not_found": false}}, {"text": "April 14, 1977", "label": "DATE", "start_char": 56, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "MISTRY PREMJIBHAI VITHALDAS A v.\n\nGANESHBHAI KESHA VJI\n\nApril 14, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ..]\n\nBombay Rents, Hotel and Lodgi11,:: !"}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 73, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 90, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 106, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Rates Control Act, 1947", "label": "STATUTE", "start_char": 171, "end_char": 194, "source": "regex", "metadata": {}}, {"text": "sec. 12", "label": "PROVISION", "start_char": 241, "end_char": 248, "source": "regex", "metadata": {"linked_statute_text": "Rates Control Act, 1947", "statute": "Rates Control Act, 1947"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 312, "end_char": 317, "source": "regex", "metadata": {"linked_statute_text": "Rates Control Act, 1947", "statute": "Rates Control Act, 1947"}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 337, "end_char": 345, "source": "regex", "metadata": {"linked_statute_text": "Rates Control Act, 1947", "statute": "Rates Control Act, 1947"}}, {"text": "Hotel and Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 367, "end_char": 414, "source": "regex", "metadata": {}}, {"text": "s. 5(10)", "label": "PROVISION", "start_char": 545, "end_char": 553, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act, 1947", "statute": "Hotel and Lodging House Rates Control Act, 1947"}}, {"text": "s. 12(2) and 12(3)", "label": "PROVISION", "start_char": 681, "end_char": 699, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act, 1947", "statute": "Hotel and Lodging House Rates Control Act, 1947"}}, {"text": "s. 12(3 )(a)", "label": "PROVISION", "start_char": 707, "end_char": 719, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act, 1947", "statute": "Hotel and Lodging House Rates Control Act, 1947"}}, {"text": "s. 12(3)(b)", "label": "PROVISION", "start_char": 1156, "end_char": 1167, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act, 1947", "statute": "Hotel and Lodging House Rates Control Act, 1947"}}, {"text": "s. 106", "label": "PROVISION", "start_char": 1862, "end_char": 1868, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 1876, "end_char": 1900, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "3-2-1970", "label": "DATE", "start_char": 2309, "end_char": 2317, "source": "ner", "metadata": {"in_sentence": "25/- by Ml order dated 3-2-1970 and he was directed to deposit arrears of rent and future rent at this rate on or before 10th of the next F month."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 2960, "end_char": 2965, "source": "regex", "metadata": {"statute": null}}, {"text": "18-9-75", "label": "DATE", "start_char": 3057, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "however, relying on an affidavit dated 18-9-75 filed by the respondent allowed the revision application G made by him under s. 29(2) of the Act."}}, {"text": "s. 29(2)", "label": "PROVISION", "start_char": 3142, "end_char": 3150, "source": "regex", "metadata": {"statute": null}}, {"text": "Hotel and Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 3346, "end_char": 3393, "source": "regex", "metadata": {}}, {"text": "s. 12(3)", "label": "PROVISION", "start_char": 3771, "end_char": 3779, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act, 1947", "statute": "Hotel and Lodging House Rates Control Act, 1947"}}, {"text": "s. 5(10)", "label": "PROVISION", "start_char": 4432, "end_char": 4440, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 4672, "end_char": 4682, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 5 S.C.R. 157", "label": "CASE_CITATION", "start_char": 5562, "end_char": 5581, "source": "regex", "metadata": {}}, {"text": "s. 12", "label": "PROVISION", "start_char": 6077, "end_char": 6082, "source": "regex", "metadata": {"statute": null}}, {"text": "Cl1", "label": "PROVISION", "start_char": 6711, "end_char": 6714, "source": "regex", "metadata": {"statute": null}}, {"text": "P.H. Parekh", "label": "LAWYER", "start_char": 6999, "end_char": 7010, "source": "ner", "metadata": {"in_sentence": "P.H. Parekh, Ajit R. Oza, Kai/ash Vasdev and (Miss) Manju Jatley for the Appellant."}}, {"text": "Ajit R. Oza", "label": "LAWYER", "start_char": 7012, "end_char": 7023, "source": "ner", "metadata": {"in_sentence": "P.H. Parekh, Ajit R. Oza, Kai/ash Vasdev and (Miss) Manju Jatley for the Appellant."}}, {"text": "Kai/ash Vasdev", "label": "LAWYER", "start_char": 7025, "end_char": 7039, "source": "ner", "metadata": {"in_sentence": "P.H. Parekh, Ajit R. Oza, Kai/ash Vasdev and (Miss) Manju Jatley for the Appellant."}}, {"text": "Manju Jatley", "label": "LAWYER", "start_char": 7051, "end_char": 7063, "source": "ner", "metadata": {"in_sentence": "P.H. Parekh, Ajit R. Oza, Kai/ash Vasdev and (Miss) Manju Jatley for the Appellant."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 7084, "end_char": 7097, "source": "ner", "metadata": {"in_sentence": "M. V. Goswami for the Respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 7163, "end_char": 7166, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.\n\nThis is a landlord's appeal by special leave against the judgment and order of the High Court ot Gujarat allowing a revision application of the tenant under section 29 (2) of the Bombay Rents."}}, {"text": "section 29", "label": "PROVISION", "start_char": 7331, "end_char": 7341, "source": "regex", "metadata": {"statute": null}}, {"text": "Hotel and Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 7373, "end_char": 7420, "source": "regex", "metadata": {}}, {"text": "6-3-67", "label": "DATE", "start_char": 7883, "end_char": 7889, "source": "ner", "metadata": {"in_sentence": "990/- from 6-3-67 to 5-12-69 and also to recover a sum of Rs."}}, {"text": "5-12-69", "label": "DATE", "start_char": 7893, "end_char": 7900, "source": "ner", "metadata": {"in_sentence": "990/- from 6-3-67 to 5-12-69 and also to recover a sum of Rs."}}, {"text": "5-1-1970", "label": "DATE", "start_char": 8057, "end_char": 8065, "source": "ner", "metadata": {"in_sentence": "On 5-1-1970, the landlord had served a notice upon the tenant terminating the tenancy on the ground that dues amounting to Rs."}}, {"text": "5-12-1969", "label": "DATE", "start_char": 8904, "end_char": 8913, "source": "ner", "metadata": {"in_sentence": "30/- p.m., so that the plaintiff was entitled to the decree for arrears of rent from 6-3-67 to 5-12-1969 and also the amount of Rs."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 10013, "end_char": 10022, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 10563, "end_char": 10573, "source": "regex", "metadata": {"linked_statute_text": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939", "statute": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939"}}, {"text": "section 11", "label": "PROVISION", "start_char": 10936, "end_char": 10946, "source": "regex", "metadata": {"linked_statute_text": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939", "statute": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 11083, "end_char": 11088, "source": "regex", "metadata": {"linked_statute_text": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939", "statute": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 11142, "end_char": 11152, "source": "regex", "metadata": {"linked_statute_text": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939", "statute": "Where the standard rent is fixed by the Court and H the Controller respectively under the Bombay Rent Restriction Act, 1939"}}, {"text": "section 5", "label": "PROVISION", "start_char": 11898, "end_char": 11907, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 12701, "end_char": 12711, "source": "regex", "metadata": {"statute": null}}, {"text": "3-2-70", "label": "DATE", "start_char": 15528, "end_char": 15534, "source": "ner", "metadata": {"in_sentence": "On behalf of the landlord appellant, it is submitted that, in an affidavit dated 18-9-75, which the respondent himself filed in the High Court, it is admitted that the tenant had not been paying the rent regularly as contemplated by the order of 3-2-70."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 17156, "end_char": 17161, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 17204, "end_char": 17214, "source": "regex", "metadata": {"statute": null}}, {"text": "section 106", "label": "PROVISION", "start_char": 18055, "end_char": 18066, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 18074, "end_char": 18104, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 11", "label": "PROVISION", "start_char": 19593, "end_char": 19603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(3)", "label": "PROVISION", "start_char": 19818, "end_char": 19826, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(3 )(b)", "label": "PROVISION", "start_char": 20054, "end_char": 20066, "source": "regex", "metadata": {"statute": null}}, {"text": "Abbasbhai", "label": "OTHER_PERSON", "start_char": 20335, "end_char": 20344, "source": "ner", "metadata": {"in_sentence": "It was laid down in Abbasbhai's case (supra) that the explanation to s. 12 introduces only a rule of evidence."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 20384, "end_char": 20389, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 20803, "end_char": 20807, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(3)", "label": "PROVISION", "start_char": 21082, "end_char": 21090, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 21690, "end_char": 21695, "source": "regex", "metadata": {"statute": null}}, {"text": "s.12", "label": "PROVISION", "start_char": 21833, "end_char": 21837, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 22263, "end_char": 22268, "source": "regex", "metadata": {"statute": null}}, {"text": "5th April 1977", "label": "DATE", "start_char": 23861, "end_char": 23875, "source": "ner", "metadata": {"in_sentence": "In view of his disability, on account of alleged illness, we propose to modify the decree of the appellate Court to the extent that he will have four months' time from 5th April 1977 before the eviction order can be executed against him provided he deposits within a month from today all the arrears due\n\nMISTRY PREMJIBHAI v. GANESHBHA! ("}}, {"text": "5th August, 1977", "label": "DATE", "start_char": 24217, "end_char": 24233, "source": "ner", "metadata": {"in_sentence": "He must,, however, vacate the premises before 5th August, 1977, and may leave it earlier if he is unable to pay the required reut regularly in advance."}}]}
{"document_id": "1977_3_578_592_EN", "year": 1977, "text": "578 ,\n\nBHOPAL SUGAR INDUSTRIES LTD. v.\n\nSALES TAX OFFICER, BHOPAL\n\nApril 14, 1977\n\n[P. N. BHAGWATI, N. L. UNTWALIA, AND S. MURTAZA FAZAL ALI, JJ.J\n\nSales Tax-Dealer consun1ing goods for his own purposes-If a sale exitible to tax.\n\nThe appellant. Vlas a manufacturer of sugar.\n\nIt also ran in the mill premises a petrol pump selling high speed diesel oil, petrol and other lubricant oils of Caltex.\n\nA part of these oils was consumed by the appel1'l<lt for its own trucks and other vehicles.\n\nThe Sales tax authorities assessed to tax C the petrol consumed by the appellaut for its own use as well.\n\nOn appeal the Commissioner of Sales Tax held that since the appellant was an agent of Caltex, title to the property in the goods sold by it remained with the A principal and as such that part of the petrol and other oils consumed by it\n\nwas also a sale exigible to tax.\n\nAllowiag the appellant's ppeal\n\nHELD : The petrol consumed by the appellant for its own purposes was not a sale exigible to tax.\n\nA conspectus of the terms of the agreement showed that after taking delivery, the appellaat became the owner of the goods and if it conc; umed the same for its own purposes, it was doing so not as an agent but as owaer. [592 El ·\n\n!(a) In a contract of sale title to property in the goods passes on to the buyer on delivery of the goods for a price paid or promised.\n\nOnce this happens the buyer becomes owner of the property and the seller has no vestige of title. left in the property.\n\nHaving regard to the complexities of modem times the concept of sale has undergone a change and made a departure fron1 the old doctrine of laissez faire.\n\nEven if the seller, by an agreement, imposed a number of restrictions on the buyer, such for example as, fixing of price, submission of statement of accounts, area. of sale and so On these resµ-ictions would not per se convert a contract of sale into one of agency.\n\n[581 HJ\n\n(b) A contract of agency differs from a contract of sale inasmuch as an agent, after taking delivery of the property, does not sen it a6 his ovm but selbi it as the prope1ty of the principal under his instructions and directiong. [582 Bl\n\n{c) While interpreting the terms of an .agreement, the Court has to look to the substance rather than the form of the agreement.\n\nUse of words like .. agentH or \"agency\", \"buyer\" and \"seller\" is not sufficient to lead to the inference that the parties did in fact intend that the said status would be conferred. In certain trades, the word \"agent\" is often used v:ithout any reference to the law of principal and agent.\n\n[582 F-G]\n\nSri Tirtunala Venkates'ltara Tiniber and Ba111boo Finn v. Co111111ercial Tax Officer, Rajahmundry, 21 STC 313, 316 followed.\n\nIV. T. Lam and Sons v. Goring Brick Company Ltd. LR. [1932] 1 KBD 710, 717, Gordon Woodroffe & Co. v. Sheikh M. A.. Ma/id & Co. [1966] Supp. SCR I, 3-4 and Daruvala Bros. (P) Ltd. v. Commissioner of Income-tax (Central) Bombay, 80 !TR 213 referred to.\n\nFoley v. Classigate Coaches Ltd. [1934] 2 K B D 1, Michelin Tyre Company Ltd. v. Macfarlane (Glasgow) Ltd. (in Liquidation), [1917] 2 Scots. L.T. 205, Financings Ltd. v Stimson, [1962] 2 All. ll.R. 386,\n\nWillcox & Gibbs Sewing Machine Co111pany v. Daniel S. Ewing, 35 U.S.\n\nLaw. Ed. 882, 884 held inapplicable.\n\nIn the instant case, the evidence furnished by the agreement was sufficient to conclude (a) tha.t the goods were supplied not on consignment basis but by way of outright sale; (b) that the agreement was to sell petrol and other oils, after the dealer had bought the property from Ca1teX:, at price<J fiXed\n\nby that company; (c) that stipulation of sale price was to protect the company's\n\ngoodwill and to ensure quality of goods to be distributed-in fact stipulation B of price which is generally a common term in all agreements between mono polistic companies &nd their distributors did not detract from the freedom of contract of sale; (d) sale by the apellant to other customers did not dis close that the property belonged to Caltex; (e) it was the appellant that bore losses due to leakage, driage and evaporation in storage and (f) reimbursen1ent by the company of transport charges and handling expenses and also reimbursement of supplies made by the appellant to certain designated custon1ers showed that the agreement was a contract of saJe and not of agency.\n\n. Further, the term requiring the dealer to furnish statements of sales and other matters showed that the company wan!ed to keep itself fully infonne<l of the proper conduct of the business in order to maintain its good\\vill an<l to. terminate the agreement in case it found that the appellant was misusing the privilege given to it.\n\nThe term \"commission and allowadlces\" indicated that certain special benefits were conferred by the company on its distributors.\n\nIt did not show that it was an agency.\n\nNor was the term requiring the appellant to furnish security for the due observance and performance of the stipulations an indication that the agreement was an agency.\n\nBelthezar and Son v. E. M.. Abowatlr, AIR 1919 P.C. 166, 167 referred to.\n\nGanesh Export and Import Cornpany v. Jl..fahadeolal Matf1n1al, AIR 1956 Cal. 188 approved.\n\nCivIL APPELLATE JURISDICTION : Civil Appeals Nos. 1135-1138\n\nOt 1972.\n\nAppeals by Special Leave from the Judgment and Order dated the 5th May, 1970 of the Commissioner of Sales Tax, Madhya Pradesh 1.1 Revision Case Nos. 2-5/RMS of 1968-1969 respectively.\n\nS. T. Desai, (Mrs.) Anjali K. Varma and Sri Narain for the Appellant.\n\nRam Panjwani, H. S. Parihar and I. N. Shroff for Respondent.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-These appeals by special leave are directed against the order of the Commissioner of Sales Tax dated May 5, 1970 rejecting the revision filed by the appellant before him against the order of the Appellate Assistant Commissioner, Sales Tax, imposing sales tax.\n\nThe appellant filed an appeal against the order of the respondent- Sales Tax Officer-to the Appellate Authority under the Madhya Pradesh Sales of Motor Spirit and Taxation Act, 1957 hereinafter referred to as 'the Act'-and pari pasu filed a petition under Art. 226 of the Constitution in the High Court of Madhya Pradesh challenging the constitutionality of the Act and the assessments made in pursuance thereof; The High Court, by its judgment dated January 25, 1961, dismissed the petition of the appellant: The appellant then approached this Court through a special leave petition and also a petition\n\nunder Art. 32 of the Constitution but without anv success.\n\nTilis Court by its judgment dated December 21, 1962, held that the High Court had erred in assuming jurisdiction in deciding disputed questions involved in the petition and should have insisted on the appellant to move the Appellate Authority provided under the Act The petition under Art. 32, however, was allowed by this Court and a part of the definition of \"sale\" in s. 2( 1) of the Act was declared ultra vires.\n\nIn the instant case, however, we are not concerned with this aspect of the matter.\n\nIn compliance with the orders of this Court, the appellant filed an appeal before the Appellate Assistant Commissioner of Sales .Tax which. was allowed by his order dated March 6, 1963, and the case was remanded to the Sales Tax Officer for fresh assessment after making necessary enquiries.\n\nThereafter the respondent Sales Tax Officer assessed the appellant afresh by his order dated October 20, 1963, and made similar assessments for the other periods.\n\nAg; linst this order the appellant moved this Court again bnt ultimately withdrew the petition and filed a revision petition under s. 28 of the Act to the Commissioner of Sales Tax, Madhya Pndesh. The Commissioner, after hearing the arguments of both the parties, invited further documents and after making further queries upheld the order of the Appellate Assistant Commissioner of Sales Tax holding that the appellant was liable to pay sales tax inasmuch as the contract which was entered into between the appellant and Caltex (India) Ltd. was a pure and simple contract of agency and not a contract of sale.\n\nThe Commissioner opined that as the contract was one of agency, the title to the property remained in the Caltex (India) Ltd. and if the appellant used the petrol for its own purposes as agent, then such a user would amount to a sale of the property of the Company by the agent to itself so as to be exigible to sales tax.\n\nIt is against the order of the Commissioner dated May 5, 1970 that the appellant has c0me up to this Court after obtaining special leave.\n\nWe have heard counsel for the parties at very great length and we have also gone through the documents filed by the parties before the Commissioner and incorporated in the Paper Book.\n\nIt seems to us that the only point for decision lies within a ve1y narrow compass.\n\nThe short point to be decided is whether at the time when the appellant was consuming the high speed diesel oil and petrol for its own purposes, was it doing so as owner of these articles or merely as an agent of Caltex Company ? In other words, if it is held that as a result of the agreement between Caltex and the appellant and the transactions following thereupon the title to the diesel or petrol passed to the appellant by the delivery of these articles, then from that date the appel.lant became owner of these articles and was entitled to use them as he liked, because he had already pa'd the price of the diesel and petrol received by it.\n\nIf this be the position, then it is manifestly clear that the user by the appellant for its own purposes may not amount to a sale which had already taken place at a point of time when the goods were delivered by the Caltex Company to the appeJ. lant. On the other hand, if it is held that the appellant was a mere\n\nagent under the agreement and was selling the articles on behalf of its principal-the Cal!ex Company-then any user of these articles or properties may amount to a sale so as to be exig.ble to sales tax. We may add that even then it was contended for the appellant that it would not amount to sale, but it did not press his contention later.\n\nThe question, therefore, will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the documents and the surrounding circumstances and having regard to the course of. dealings between the parties.\n\nIn all the Sales Tax statutes as also the definition of \"sale\" in the Act in this case, the definition given in the Sale of Goods Act has been bodily lifted from that Ac~ and inserted in the Tax Statutes. In the instant case under the Madhya Pradesh Sales of Motor Spirit Taxation Act, 1957, \"sale\" is defined thus :\n\n\" \"sale\" with all its grammatical variations and cognate expressions means transfer of motor spirit for cash or deferred payment or for other valuable consideration and includes transfer of motor spirit by a society or club or any association to its members, but does not include a mortgage by- -\n\npothecation, charge or pledge; - D Explanation I.-Consumption of motor spirit by a dealer himself or on his behalf shall be deemed to be a \"sale\";\n\nExplanation II.-A sale of motor spirit deemed to be a sale inside the State within the meaning of sub-section (2) Of section 4 of the Central Sales Tax Act, 1956 (74 of 1956), shall also be deemed to be sale inside the State for the purposes of this clause;\"\n\nThus it would appear that in order to satisfy the conditions of \"sale\" under the definition of the Act, the following conditions must be satisfied :\n\n(i) that there should be a transfer of motor spirit from the seller to the buyer; •·\n\n(ii) that the transfer must be for valuable consideration which may be either cash or deferred payment; and\n\n(iii) that the transfer must not be in the nature of a mortgage, hypothecation, charge or pledge.\n\nUnder Explanation I, consumption of motor spirit by a dealer himself or on his behalf shall be deeme.d to be a sale.\n\nBut this Explanation has already been held to be ultra vires by this Court in the previous Bhopal Sugar Industries Ltd's case.\n\nThus the essence of the matter is that in a contract of sale, title to the property passes on to the buyer 011 delivery of the goods for a price paid or promised. Once this happens the buyer becomes the owner of the property and the seller has no vestige of title left in the property.\n\nThe concept of a sale has, however, undergone a revolutionary change, having regard to the complexities of the modem times and tlm expanding needs of the society,\n\nwhich has made a departure from the doctrine of laissez faire by including a transaction within the fold of a sale even though the seller may by virtue of an agreement impose a number of restrictions on the buyer, e.g. fixation of price, submission of accounts, selling in a particular area or territory and so on.\n\nThese restrictions per se would not convert a contract of sale into one of agency, because in spite of these restrictions the transaction would still be a sale and subject to all the incidents of a sale.\n\nA contract of agency, however, differs essentially from a contract of sale inasmuch as an agent after taking delivery of the property does not sell it as his own property but sells the same as the property of the principal and under his mstructions and directions.\n\nFurthermore, since the agent is not the owner of the goods, if any Joss i.9 suffered by the agent he is to be indenmified by the prir.cipai. This is yet another dominant factor which distinguishes an agent from a buyer-pure and simple.\n\nIn Halsbury's Laws of England, Vol. l, 4th Edn., in para 807 at p. 485, the following observations are made :\n\n\"The relation of principal and agent raises by implication a contract on the part of the principal to reimburse the agent in respect of all expenses, and to indemnify him against all liabilities, incurred in the reasonable performance of the agency, provided that such implication is not excluded by the express terms of the contract between them, and provided that such expenses and liabilities are in fact occasioned by his employment.\"\n\nWe have mentioned this fact, particularly because under the agreement between the Caltex Company and the appellant the Joss sustained by the buyer has to be borne by it after delivery of the goods and the seller is not responsible for the same.\n\nSuch a special arrangem.ent between the parties is a factor which taken along with other circumstances points towards the agreement being one of sale.\n\nIt is well settled that while interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it.\n\nThe mere fact that the word 'agent' or 'agency' is used or the words 'buyer' and 'seller' are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred.\n\nThus the mere formal description of a person as an agent or buyer is not conclusive, unless the context shows that the parties clearly intended to treat a buyer as a buyer and not as an agent.\n\nLearnl>.d. coonsel for the appellant relied on several circumstances to show that on a proper construction of the agreement it could no~ but be he!~ .to be a contract of sale.\n\nLearned counsel strongly relied on a dec1s1on of this Court in Sri Tirumala Venkateswara Timber and Bamboo Firm\n\nv. Commercial Tax Officer, Rajahmundry,(') where this Court held the transaction to be a sale in almost similar circumstances. Speaking for the Court, Ramaswami; T, observed as follows:\n\n(I) 21 S.T.C. 313, 316\n\nt )\n\n\"As a matter of law there is a distinction between a contract. of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the princpal. The\n\nc>Seuce of a contract of sale is the transfer of tJ.lle tu the gco<b for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor\n\nfor the price to be paid and not as agent for the proceeds of the sale.\n\nThe essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods and will therefore be. liable to account for the sale proceeds.\"\n\nIt is clear from the observations made by this Court that the true relationship of the parties in such a case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the said relatiorn; hip.\n\nThis Court relied on a decision in W. T. Lamb and Sons v. Goring Brick Company Ltd. (1) where despite the fact that the buyer was designated\n\nas sol\" sd\\ing agent, the Court held that it was a contract of sale.\n\nLord Scrutton, with whom other Lords agreed, observed as follows :\n\n\"Now it is well known that in certain trades the word \"agent\" is often used without any reference to the law of principal and agent.\n\nThe motor trade offers an obvious example, where persons described as \"agents\" are not agents in respect of any principal, but are purchasers who buy from manufacturers and sell independently of them; and many difficulties have arisen from this habit of describing a purchaser, sometimes a purchaser upon terms, as an agent.\"\n\nIn a earlier decision of this Court in Gordon Woodroffe & Co. v.\n\nSheikh M. A. Majid & Co. (2) it was observed thus :\n\n\"The essence of sale is the transfer of the title to the goods for price paid or to be paid.\n\nThe transferee in such case F becomes liable to the transferor of the goods as a debtor for the price to be paid and not as agent for the proceeds of the sale.\n\nOn the other hand, the essence of agency to sell is the delivery of the goods to a person whO is to sell them, not as his. own property but as the property of the principal who continues to be the owner of the goods and who is therefore liable to account for the proceeds.\" G\n\nThe Bombay High Court in Daruvala Bros (P) Lta., v. Co1r.missiotier of Income-tax (Central) Bombay(') had, in almost similar facts, held that even though there were restrictions on the assessee the agreement being one of distribution was to be treated 1s a contract of sale and not an agreement of agency. It would thus appear that\n\n(I) CR. [1932] l K.R.D. 710, 717.\n\n(2) [1966] Supp. S.C.R. I, J-4. (J) 80 l.T.R. 213\n\neven if a party is described as agent in the agreement he may not be an agent bul a buyer though described as an agent. h1 fact we feel that there may be agreements which may contain some elements of agency but may be contracts of sale in other respects.\n\nLearned counsel for the respondent then relied on the decision in Foley v. Classique Coaches Ltd. (1) This authority does not appear to be of any assistance to the respondent because in that case the court came to a finding of fat that there was no concluded contract at all and the agreement was merely an executory one and, therefore, the question of determining the relationship between the parties did not naturally arise.\n\nSimilarly reliance was placed on Michelin Tyre Company Ltd. v.\n\nMacfarlane (Glasgow) Ltd. (in Liquidation).(2) Here also the question was decided on the peculiar terms of the agreement in question and this authority cannot be called into aid for the purpose of deciding the present case.\n\nLearned counsel for the respondent also relied on Financings Ltd.\n\nv. Stimson(•) but the facts in the aforesaid case appear to be quite different from the facts of the present case.\n\nStrong relianet was also placed by Mr. Panjwani counsel for the respondent on Willcox & Gibbs Sewing Machine Companv v. Daniel S. Ewing,(') where the Court observed as follows :\n\n\"And it is agreed and understood that this appointment or. agency is not saleable or transferable by second party without obtaining the written consent of first party, but such consent is to be given providing the purchaser or other person is acceptable to said first party.\"\n\n\"There was some discussion at the bar as to whether Ewing was, strictly, an agent of the company.\n\nWe think he was.\n\nHe was none the less an agent because of his appointment as \"exclusive vendor\" of the defendant's machines within a particular territory, or because of the peculiar previleges granted to or the peculiar restrictions imposed upon hlin.\"\n\nIt seems to us that the law on the subject has been state:l by the Court in a different context and, therefore, this case does not appear to us to be of any assistance in determining the question at issue in the instant case.\n\nThe Court in the aforesaid case had inferred agency from the mere fact that under the agreement the sale was to operate in a limited trritory.\n\nThis by itself, in our opinion, is not sufficient to lead to the inference that the agreement was one of agency. rt is\n\n(1) [1934] 2 K.B.D. l.\n\n(2) [1917] 2 Scots. L.T. 205. <3) [1962] 3 All E.R. 386. (4) 35 U.S. Law. Ed .. 882,884.\n\nt .,\n\n. ·-.r\n\n' j\n\nalways open to the buyer to purchase goods for a limited purpose and within the field of that limited purpose the buyer has absolute title to the property once it is delivered to him by the seller.\n\nLearned counsel for the respondent then relied on a decision of the Keralai High Court in Goverdhan Hathibhai & Co. v. Appellate ; Assistant Commissioner of Agricultural lllcome-tax and Sales Tax, Trivandrum,(').\n\nBut that decision is contrary to the principles B enunciated by this Court in Sri Tirumala Venkaeswara Timber and Bamboo Firm's case (supra) and Gordon Woodroffe & Company's case (Supra).\n\nMoreover, as pointed out by the Kerala High Court in that case there were special terms and stipulations in the contract which persuaded the Court to hold that it was a contract of agency. We would, therefore, like to confine the ratio of that case to the peculiar facts of that case.\n\nFurther, it appears that while the C Kerala High Court had expressly dissented from a decision of the Palna High Court in Rohtas Industries Ltd. v. State of Bihar(2 ) and did not accept the propositions laid down by the said Court, this Court had affirmed the aforesaid Patna High Court decision in Rohtas Industries Ltd. v. State of Bihar(3 ) where it was observed thus :\n\n\"We therefore agree with the view of the High Court that clause 24 does not qualify the legal effect of the other im- D portant clauses of the agreement, and that the cement delivered, despatched or consigned by the manufacturing companies to the Marketing Company or to its orders or in accordance with its directions was sold by the manufacturing companies to the Marketing Company ...... \"\n\nIn view of the observations of this Court, therefore, the Kerala High E Court decision referred to above must be held to have been impliedly overruled.\n\nHaving discussed the law on tl1e subject, we shall now analyse the agreement in the present case and interpret the same m accordance with the principles laid down by the various authorities referred to above.\n\nTo begin with, clauses 1 and 2 express in absolutely catei:orical terms that the nature of the agreement is to sell the property in question and nothing else.\n\nClause 2 runs thus :\n\n\"The Company shall sell to the dealer and the dealer shall buy from the Company the said products at the prices preestablished by the Company therefor and which are in effect on the date on which the Diesel Oil is despatched/or delivered by the Company.\"\n\nClause 2 expressly states that Hispeedol was to be sold and the dealer was buying tl1e property from the Company at prices to be fixed by the Company.\n\nThe terms \"buying\" and \"selling\" have not been used by way of a routine or formal description of the status of the parties\n\n(1) 12 S.T.C. 464,\n\n(21 9 S.T.C. 248.\n\n(3) 12 S.T.C. 615, 622.\n\nA but appear to us to form an integral part of the contract clearly exhibiting an intention of the nature of transaction which the parties intc:ided this document to be, namely, that it is a contract for sale and nuthmg eise. We must remember that the agreement in question is a contract for distribution of Hispeedol produced by tb Caltex Com- . ,.. pany which has a monopoly for producing a particular type or oil which it sells. A common feature of any distribution agreement is that B the seller i:J.sists on a particular price at which the property is to be sold and impose certain restrictions in order to protect his goodwill and ensure the quality of his goods to be distributed through sljle.\n\nThe chart filed by the appellant at p. 191 of the Paper Bo0k would -. f clearly show that the appellant paid the price of the bulk supplies\n\nalmost within a month of the date of delivery of the goods.\n\nThis chart runs thus :\n\n\"A. H. Bhiwandiwalla & Co. (Bombay) Pnvate Ltd., Managing Agents, The Bhopal Sugar Industries Ltd., Sehore, Cash Debit voucher No. 2011, dt. 1-7-1958.\n\n\"Please pay to M/s. Caltex (India) Ltd., Account : Petrol D Diesel Oil & lubricants.\n\nIn full payment of the following bills No.19232 dt. 9-4-58 for 1000 Gs. petrol No. 19283 dt. 8-5-58 for 1000 Gs. petrol No. 19321dt.29-5-58 for 1000 Gs. petrol No.17586 dt.1-5·58 for 1000 Gs. Hispe<dol No. 17598 dt. 7-5-58 for 1000 Gs.\n\nNo.17610 dt.14·5-58 for 1000 Gs.\n\nNo.17621 dt. !8-5-58 for 860 Gs. \" R•1pees fifteen thousand six hundred ten only.\n\nRs. 2920-CO Rs. 2920-00 Rs. 2920-00\n\nRs.1770-CO\n\nRs.1770·00 Rs.1770-00 Rs. 1540--00\n\nRs.llp.\n\n8760-00\n\n6850-00 15610·00\n\nFor the Bhopal Sugar Industries Ltd.\n\nSd/- Illegible Manager. \"\n\nThis chart also reveals a crucial fact, namely, that the supply of the products by the Company was made to the appellant not on consignment basis but by way of outright sale.\n\nIt appears from the documents produced by the appellant before the Commissioner tbat on .G inquiries made from the seller,. namely, the Caltex Company, they confirmed the fact that the goods were sent to the buyer on the basis of outright sale. In this connection, the relevant portion of the Jetter read thus ;\n\n\"We refer to the discussion your Mr. Mody had this forenoon with our M/s. G. H. Sani and M. R. Pata1tlrnr ..... .\n\nIn this connection we would like to confirm as under : \"1. Since. the inception of your dealership, clause No. 4 of\n\nour Standard Petrol Dealer Agreement does not apply to A you.\n\n2. Supplies of Petroleum Products ex Bombay or ex our Depots in Madhya Pradesh have been made to you on the basis of outright sale.\"\n\nThis letter also shows that clause 4 of the Standard Petrol Dealer Agreement did not apply to the appellant.\n\nSimilarly another letter at P. 167 of the Paper Book written by the Manager of the appellant to the Commissioner of Sales Tax clarified the position that the appellant had purchased the gocds on outright basis.\n\nThe relevant portion of this letter may be extracted thus :\n\n\"Mis Caltex (India) Ltd., never supplied goods i.e. petrol & Hispeedol on consigrunent basis.\n\nWe had always purchased the goods from them on out-right purchases against our orders placed with them from time to time.\n\nSample copies of our correspondence relating to placement of orders in respect of petrol & hispeedol are enclosed herewith for your perusal.\"\n\nThe appellant had filed detailed correspondence to prove the facts clarified before the Commissioner. This aspect of the matter was turt11er reiterated by the appellant in his letter to the Commissioner dated November 7, 1969, the relevant portion of which may be extracted as follows :\n\n\"M/s Caltex (India) Ltd. supplied us petrol & hispeedol\n\nagainst our orders placed with them from time to time and they billed us immediately thereafter at the bulk rates prevailing from time to time ....... Payments were also made to M/s. Caltex (India) Ltd. on outright basis immediately after receipt of the goods. . .....\n\nAll books of account, all files containing orders, bills, payment vouchers and correspondence are produced before you for your verification.\"\n\nThis letter further shows that all the vouchers, correspondence etc. bad been produced by the appellant in proof of the recitals mentioned\n\nin the letter. It is, therefore, clear that the moment the appellant G received the supplies of Hispeedo! from the seller, the Hispeedol became the property of the appellant and the appellant was absolutely free to sell the Hispeedol and petrol to any one it liked at the prices fixed within the territory specified in the agreement.\n\nThus the title to the property passed to the appellant the moment it took delivery of the same. It is, therefore, manifest that having taken delivery of the property if the appellant was using it for its own consumption it was H using its own property in which the Company had no title at all and such a user therefore could not, by any stretch of imagination, be treated as a sale.\n\nA Another very important circumstance which clearly shows that the contract was one of sale and not of agency is the fact that after having taken delivery of the petrol and Hispeedol the appellant sold the same to its various customers, not even mentioning that the property oelong- ed to Caltex Company but issued cash memos in its own name which clearly indicates that after taking delivery of the property the appell~.nt became the absolute owner thereof and represented itself to be the B owner of the property and sold it not as the property of the Company but as its own property.\n\nThis fact is clearly proved' by the cash memos and credit vouchers produced by the appellant at pp. 195-197 of the Paper Book. The cash memo describes the Bhopal Sugar Industries Ltd. as the owner of the goods and so does the credit voucher.\n\nThis, therefore, conclusively shows that the agreement could not have been an agreement of agency because the essential distinction between an C agreement of sale and agreement of agency is that in the former case the property is sold by the seller as his own property and in the latter case the property is sold by the agent not as his own property but as the property of his principal and on his behalf.\n\nAnother important circumstance which indicates that the goods were sold to the appellant is that the appellant in his letters produced on further queries made by the Commissioner of sales Tax made a clear statement that the appellant had borne the losses due to leakage, driage, evaporation etc. during the course of storage at the pumps of the appellant and the seller Caltex Company did. not. reimburse the appellant for such losses.\n\nThe relevant portion of this letter may be extracted thus :\n\n\"As we had purchased petrol & hispeedol on out-right purchase and sale basis from M/s Caltex (India) Ltd., we borne the entire losses arising out of entire expenses or handling at our receiving point. We also borne the losses due to leakages, driage and driage and/or evaporation during the course of storage at our pumps. M/s Caltex (India) Ltd., did not reimburse us for any loss.\"\n\nIf the appellant would have been agent of the Caltex then under the law of agency the agent had an indefeasible right to be reimbursed @r indemnified by the principal for the losses caused.\n\nBut as the appellant bore the losses personally, this clearly indicates that the properties after being sold to it were its absolute properties and if any losses occurred they were borne by the appellant as owner and not by the seller.\n\nAnother important condition in the agreement was clause 23 at ~. p. 130 of the Paper Book which runs thus :\n\n\"The dealer shall at any time, upon request of the Company make from his stocks, deliveries of reasonable quantities of said products for account of the Company, to consumers at such points wi.thin t)ie territ?ry as _the Compay n; iay designate. In cons1derat10n of his makmg such dehvenes, the -\n\nBHOPAL SUGAR INDUSTIUES LTD. v. s.T.O. (Fazal Ali, ].) 589\n\ndealer shall be reimbursed in full for all transportation expenses, and receive in addition thereto, such allowances for handling as may then currently be in effect under this agreement\"\n\nUnder this clause the appellant was required to deliver reasonable quantities of products at the request of the Company to consumers designated by the Company at such points within the territory as may be specified. In consideration of complying with the request, the seller Company agreed to reimburse the appellant in full for the supplies and the appellant was also entitled to be paid transportati()n expenses and handling allowances as nmy have been incurred by ii.\n\nThis is another decisive factor which negatives the theory that the agreement could be one of agency.\n\nIndeed such a stipulation in the agreement is wholly inconsistent with the position of the appellant lfeing an agent for in that case thre was absolutely no scope for such a stipulation and the seller Company as a principal of the agent could have instructed it to supply the goods or petrol to designated customers am! there was no question of the agent being reimbursed, because the property supplied belonged to the principal and was delivered to certain persons on the instructions of the principa, l.\n\nThis cfause, therefore, is yet another important factor which shows that the agreement was intended to be a contract of sale rather than a contract of agency.\n\nFurthermore, the agreement contains a clear and unequivocal declaration by the seller Company that the status of the appellant would not be that of an agent.\n\nIn this connection, clause 15 of the agreement runs thus :\n\n\"Nothing in this agreement contained shall in any way operate by implication or otherwise to constitute the dealer as agent of the Company in any respect and for any purpose .whatsoever, and the dealer shall have no right or authority to assume or create any obligation of any kind express or implied on behalf of the Company in any other respect whatsoever. \"\n\nThis clear declaration on the part of the parties leaves no room for F doubt that the agreement was intended to be a contract for sale and that the appellant was not only not regarded as an agent but was expressly excluded from the category of an agent.\n\nThe cumulative effect of the circumstances mentioned above leads to the inescapable conclusion that the Hispeedol had been sold to the appellant and not held by it merely as an agent of the Caltex Company.\n\nThe petrol agreement also which has been placed before us contains similar stipulations and it was not disputed by counsel for the respondent that if the\" Hispeedol Agreement is held to be a contract of sale, then the same would have to be said of the Petrol Agreement also.\n\nThus the principles which would rnake the contract of the purchase of Hispeedol a contract of sale would apply mutati~ mu!andis to the Petrol Agreement also.\n\nLearned counsel for the respondent, as also the Commissioner, have relied on certain stipulations in the agreement which show that the\n\n11-502 SC!/77\n\nagreemnt was one of agency.\n\nThe Jirst circumstance relied in this connection. wa~ that under. clause 12 _of the agreement, the appellant was to mamtam sale, ser.v1ce and other record as may be considered necessary and was to furmsh the Company when called upon staiments of sales, financial and other matters as and when required by the Company.\n\nClause 12 runs thus :\n\n\"The dealer shall maintain sales, service and other record as n_iay be considered necessary by the Cmpany and shall furmsh the Company when called upon with all such sales financial nd other statements as may be required by and i~ forms satisfactory to the Company. \"\n\nIn our opinion this clause does not at all conclusiyeJy show that the appellant was an agent of the C\"mpany.\n\nThe obiect of inserting this clause in the agreement appears to M that during the term of the agreement the appellant undertook to maintain proper sales, service and other record so that the Company's reputation may not suffer and if any statement regarding the sales or other matter were rejjuired by the Company, they were not required because the appellant was the agent of the Company but it was because the Company wanted to keep itself fully informed of the proper conduct of the business by the appellant in order to maintain its goodwill. It is manifest that if during the period of the agreement there were serious complaints against the appellant regarding the misuse of the privileges given to it under the agreement, the Company could under the terms of the agreement terminate the agreement so as to save its reputation. Read as a whole, this stipulation does not amount to make the appellant liable to render regular accounts to the Company inasmuch as the statemenfi': called for were required only for a very limiled purpose, viz., to prevent the ai;>pellant from misusing his privileges and thereby jeopardising or harmmg the reputation of the Company. In these circumstances, therefore, the argument based on this clause appears to be of no assistance to the counsel for the respondent.\n\nOause 8 of the agreement clearly shows that the appellant had been loaned properties belonging to the Company like petrol pumps and their accessories etc. and it was in respect of these properties which had been given to the dealer for working the petrol pumps that the statements of account were called for from the appellant.\n\nThis appears to be the modus operandi adopted by the seller Company in respect of all its distributors.\n\nThere is no stipulation in the agreement which requires or enjoins on the appellant to submit accounts of the Hispeedol or petrol which he may have sold to various customers, after having taken delivery of the same from the Company.\n\nIn these circumstances, therefore, this argument of the learned counsel for the respondent mnst be overruled.\n\nAnother circumstance relied upon by the respondent was the fact that the appellant was nnder the terms of the agreement to sell lhe goods at a price fixed and not higher or lower. than ha~. yve have already indicated that when a Company enters mto a d1stnb:ition agreement it always fixes a particular price in order to protect its gooclwJll\n\nand in order to control the market. Such fixation of the price by itself would not be a restriction which would take away the freedom of contract of sale.\n\nSuch a stipulation is found in almost all the agreements entered into between the monopolist Companies and their distributors. The respondent would not, therefore. be justified in treating this circumstance in order to show that the agreement was one ot agency.\n\nSimilarly the argument that the appellant was to sell the goods in a territory fixed by the Company does not show that the agreement was not of sale because this is also one of the common features of a distribution agreement.\n\nThe question to be determined is not what was the territory fixed by the seller Company but whether there was any limitation to sell to any particular person within the territory for which the properties were sold to the appellant.\n\nOn this point there is absolutely no restriction.\n\nIt was further contended that under clause 26 of the agreement the Company agreed to pay a commission and certain allowances to the appellant which shows that the appellant was an agent.\n\nThe relevant portion of clause 26 runs thus :\n\n\"In consideration of the dealer undertaking faithfully, to carry out their part of the Agreement as set for the above, the Company undertakes to pay the dealer such commission and allowances as the Company in its sole discretion shall think fit.\n\nThe rate of commission and allowances that are current at the time are setforth in the schedule attached hereto, but the Company reserve the right to alter such commission and allowances as and when they think fit without any previous notice to the dealer and without assigning any reason therefor.\"\n\nA perusal of this clause as a whole would show that the use of the words \"commission and allowances\" is not to indicate agency, but to indicate certain special benefits which the Company wanted to confer on its distributors.\n\nFurthermore, then payment of commission by itself is not conclusive to show that the agreement was one of agency.\n\nIn Belthezar and Son v. E. M. Abowath, (1) Lord Dunedin observed as follows :\n\n\"It comes to this, that all the documents show on the face of them a contract as between principals.\n\nThe mere mention of commission in the contract as signed is not in any way, as pointed by the learned Judges of the Court of Appeal, inconsistent with the relation being between principal and. principal.\"\n\nThis decision was followed by the Calcutta High Court in Ganesh Export and Impot Company v. Mahadeolal Nathmal( 2) and we find ourselves in complete agreement with the view taken by the Calcutta\n\n11) A.LR. (1919) P.C.166, 167.\n\n12) A.LR. (1956) car. 188\n\nHigh Court.\n\nFor these reasons, therefore, the argument by learned counsel for the respondent is not tenable in law.\n\nFinally, reliance was placed on clause 18 of the agreement appearing at p. 126 of the Paper Book which requires the dealer to furnish security for the due observance and performance of the stipulations contained therein.\n\nSuch a stipulation also does not by itself show that the agreement was one of agency. .\n\nThe present agreement undoubtedly contains some elements ot agency also, but the main question which has to be determined in this case is whether or not at the point of time when the appellant was consuming the Hispeedol or petrol for its own purposes it was acting as an owner of the goods or as agent of the seller Company.\n\nFrom the facts and circumstances discussed above, we have shown that the appellant, after taking delivery of the goods, was the owner of tile goods and if it consumed the same for its own purposes it was not doing so as agent but as owner which it was fully entitled to do. ln this view of the matter, :be quantities of petrol consumed by the appellant for its own purposes would not constitute a sale so as to be exigible to sales tax.\n\nWe have carefully perused the order of the Commissioner and find that the Commissioner has taken an erroneous view of the law and has drawn legally wrong inferences from the various stipulations contained in the agreement.\n\nThe Commissioner has also not given effect to well established legal principles in interpreting the agreement.\n\nFor the reasons given above, we are unable_ to maintain the order of the Commissioner which suffers from manifest errors of law apparent on the face of the record.\n\nWe, therefore, allow these appeals, set aside the order of tho Commissioner dated May 5, 1970, and hold that the use of the Hisp_eedol and petrol by the appellant for its own purposes is not exigible to sales tax and the proceedings for imposing sales tax on the appellant are hereby quashed.\n\nThe appellant will be entit:ed to its costs throughout.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 71, "entities": [{"text": "BHOPAL SUGAR INDUSTRIES LTD", "label": "PETITIONER", "start_char": 7, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "BHOPAL SUGAR INDUSTRIES LTD", "offset_not_found": false}}, {"text": "SALES TAX OFFICER, BHOPAL", "label": "RESPONDENT", "start_char": 40, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "SALES TAX OFFICER, BHOPAL", "offset_not_found": false}}, {"text": "April 14, 1977", "label": "DATE", "start_char": 67, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "v.\n\nSALES TAX OFFICER, BHOPAL\n\nApril 14, 1977\n\n[P. N. BHAGWATI, N. L. UNTWALIA, AND S. MURTAZA FAZAL ALI, JJ.J\n\nSales Tax-Dealer consun1ing goods for his own purposes-If a sale exitible to tax."}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 84, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 100, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 120, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Caltex", "label": "ORG", "start_char": 685, "end_char": 691, "source": "ner", "metadata": {"in_sentence": "On appeal the Commissioner of Sales Tax held that since the appellant was an agent of Caltex, title to the property in the goods sold by it remained with the A principal and as such that part of the petrol and other oils consumed by it\n\nwas also a sale exigible to tax."}}, {"text": "CivIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5193, "end_char": 5221, "source": "ner", "metadata": {"in_sentence": "CivIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 5449, "end_char": 5460, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) Anjali K. Varma and Sri Narain for the Appellant."}}, {"text": "Anjali K. Varma", "label": "LAWYER", "start_char": 5469, "end_char": 5484, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) Anjali K. Varma and Sri Narain for the Appellant."}}, {"text": "Narain", "label": "LAWYER", "start_char": 5493, "end_char": 5499, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, (Mrs.) Anjali K. Varma and Sri Narain for the Appellant."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 5520, "end_char": 5532, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani, H. S. Parihar and I. N. Shroff for Respondent."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 5534, "end_char": 5547, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani, H. S. Parihar and I. N. Shroff for Respondent."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 5552, "end_char": 5564, "source": "ner", "metadata": {"in_sentence": "Ram Panjwani, H. S. Parihar and I. N. Shroff for Respondent."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 5626, "end_char": 5634, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL Au, J.-These appeals by special leave are directed against the order of the Commissioner of Sales Tax dated May 5, 1970 rejecting the revision filed by the appellant before him against the order of the Appellate Assistant Commissioner, Sales Tax, imposing sales tax."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 6156, "end_char": 6164, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 6192, "end_char": 6220, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Madhya Pradesh challenging the constitutionality of the Act and the assessments made in pursuance thereof; The High Court, by its judgment dated January 25, 1961, dismissed the petition of the appellant: The appellant then approached this Court through a special leave petition and also a petition\n\nunder Art."}}, {"text": "January 25, 1961", "label": "DATE", "start_char": 6351, "end_char": 6367, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Madhya Pradesh challenging the constitutionality of the Act and the assessments made in pursuance thereof; The High Court, by its judgment dated January 25, 1961, dismissed the petition of the appellant: The appellant then approached this Court through a special leave petition and also a petition\n\nunder Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 6511, "end_char": 6518, "source": "regex", "metadata": {"statute": null}}, {"text": "December 21, 1962", "label": "DATE", "start_char": 6599, "end_char": 6616, "source": "ner", "metadata": {"in_sentence": "Tilis Court by its judgment dated December 21, 1962, held that the High Court had erred in assuming jurisdiction in deciding disputed questions involved in the petition and should have insisted on the appellant to move the Appellate Authority provided under the Act The petition under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 6850, "end_char": 6857, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2( 1)", "label": "PROVISION", "start_char": 6936, "end_char": 6944, "source": "regex", "metadata": {"statute": null}}, {"text": "October 20, 1963", "label": "DATE", "start_char": 7453, "end_char": 7469, "source": "ner", "metadata": {"in_sentence": "Thereafter the respondent Sales Tax Officer assessed the appellant afresh by his order dated October 20, 1963, and made similar assessments for the other periods."}}, {"text": "s. 28", "label": "PROVISION", "start_char": 7655, "end_char": 7660, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pndesh", "label": "OTHER_PERSON", "start_char": 7706, "end_char": 7719, "source": "ner", "metadata": {"in_sentence": "Ag; linst this order the appellant moved this Court again bnt ultimately withdrew the petition and filed a revision petition under s. 28 of the Act to the Commissioner of Sales Tax, Madhya Pndesh."}}, {"text": "Caltex (India) Ltd.", "label": "ORG", "start_char": 8046, "end_char": 8065, "source": "ner", "metadata": {"in_sentence": "The Commissioner, after hearing the arguments of both the parties, invited further documents and after making further queries upheld the order of the Appellate Assistant Commissioner of Sales Tax holding that the appellant was liable to pay sales tax inasmuch as the contract which was entered into between the appellant and Caltex (India) Ltd. was a pure and simple contract of agency and not a contract of sale."}}, {"text": "May 5, 1970", "label": "DATE", "start_char": 8510, "end_char": 8521, "source": "ner", "metadata": {"in_sentence": "It is against the order of the Commissioner dated May 5, 1970 that the appellant has c0me up to this Court after obtaining special leave."}}, {"text": "Caltex Company", "label": "ORG", "start_char": 9081, "end_char": 9095, "source": "ner", "metadata": {"in_sentence": "The short point to be decided is whether at the time when the appellant was consuming the high speed diesel oil and petrol for its own purposes, was it doing so as owner of these articles or merely as an agent of Caltex Company ?"}}, {"text": "Cal!ex Company", "label": "ORG", "start_char": 9918, "end_char": 9932, "source": "ner", "metadata": {"in_sentence": "On the other hand, if it is held that the appellant was a mere\n\nagent under the agreement and was selling the articles on behalf of its principal-the Cal!ex Company-then any user of these articles or properties may amount to a sale so as to be exig.ble to sales tax."}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 10582, "end_char": 10599, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "instant case under the Madhya Pradesh Sales of Motor Spirit Taxation Act, 1957", "label": "STATUTE", "start_char": 10678, "end_char": 10756, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 11347, "end_char": 11356, "source": "regex", "metadata": {"linked_statute_text": "In the instant case under the Madhya Pradesh Sales of Motor Spirit Taxation Act, 1957", "statute": "In the instant case under the Madhya Pradesh Sales of Motor Spirit Taxation Act, 1957"}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 11364, "end_char": 11391, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhopal Sugar Industries Ltd", "label": "ORG", "start_char": 12143, "end_char": 12170, "source": "ner", "metadata": {"in_sentence": "But this Explanation has already been held to be ultra vires by this Court in the previous Bhopal Sugar Industries Ltd's case."}}, {"text": "England", "label": "GPE", "start_char": 13677, "end_char": 13684, "source": "ner", "metadata": {"in_sentence": "In Halsbury's Laws of England, Vol."}}, {"text": "Ramaswami", "label": "GPE", "start_char": 15659, "end_char": 15668, "source": "ner", "metadata": {"in_sentence": "Speaking for the Court, Ramaswami; T, observed as follows:\n\n(I) 21 S.T.C. 313, 316\n\nt )\n\n\"As a matter of law there is a distinction between a contract."}}, {"text": "Scrutton", "label": "OTHER_PERSON", "start_char": 16906, "end_char": 16914, "source": "ner", "metadata": {"in_sentence": "Lord Scrutton, with whom other Lords agreed, observed as follows :\n\n\"Now it is well known that in certain trades the word \"agent\" is often used without any reference to the law of principal and agent."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 18085, "end_char": 18102, "source": "ner", "metadata": {"in_sentence": "G\n\nThe Bombay High Court in Daruvala Bros (P) Lta.,"}}, {"text": "Panjwani", "label": "OTHER_PERSON", "start_char": 19695, "end_char": 19703, "source": "ner", "metadata": {"in_sentence": "Strong relianet was also placed by Mr. Panjwani counsel for the respondent on Willcox & Gibbs Sewing Machine Companv v. Daniel S. Ewing,(') where the Court observed as follows :\n\n\"And it is agreed and understood that this appointment or."}}, {"text": "Ewing", "label": "OTHER_PERSON", "start_char": 20164, "end_char": 20169, "source": "ner", "metadata": {"in_sentence": "\"There was some discussion at the bar as to whether Ewing was, strictly, an agent of the company."}}, {"text": "Keralai High Court", "label": "COURT", "start_char": 21357, "end_char": 21375, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the respondent then relied on a decision of the Keralai High Court in Goverdhan Hathibhai & Co. v. Appellate ; Assistant Commissioner of Agricultural lllcome-tax and Sales Tax, Trivandrum,(')."}}, {"text": "Tirumala Venkaeswara Timber and Bamboo Firm", "label": "OTHER_PERSON", "start_char": 21585, "end_char": 21628, "source": "ner", "metadata": {"in_sentence": "But that decision is contrary to the principles B enunciated by this Court in Sri Tirumala Venkaeswara Timber and Bamboo Firm's case (supra) and Gordon Woodroffe & Company's case (Supra)."}}, {"text": "Gordon Woodroffe & Company", "label": "ORG", "start_char": 21648, "end_char": 21674, "source": "ner", "metadata": {"in_sentence": "But that decision is contrary to the principles B enunciated by this Court in Sri Tirumala Venkaeswara Timber and Bamboo Firm's case (supra) and Gordon Woodroffe & Company's case (Supra)."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 21724, "end_char": 21741, "source": "ner", "metadata": {"in_sentence": "Moreover, as pointed out by the Kerala High Court in that case there were special terms and stipulations in the contract which persuaded the Court to hold that it was a contract of agency."}}, {"text": "C Kerala High Court", "label": "COURT", "start_char": 22013, "end_char": 22032, "source": "ner", "metadata": {"in_sentence": "Further, it appears that while the C Kerala High Court had expressly dissented from a decision of the Palna High Court in Rohtas Industries Ltd. v. State of Bihar(2 ) and did not accept the propositions laid down by the said Court, this Court had affirmed the aforesaid Patna High Court decision in Rohtas Industries Ltd. v. State of Bihar(3 ) where it was observed thus :\n\n\"We therefore agree with the view of the High Court that clause 24 does not qualify the legal effect of the other im- D portant clauses of the agreement, and that the cement delivered, despatched or consigned by the manufacturing companies to the Marketing Company or to its orders or in accordance with its directions was sold by the manufacturing companies to the Marketing Company ...... \"\n\nIn view of the observations of this Court, therefore, the Kerala High E Court decision referred to above must be held to have been impliedly overruled."}}, {"text": "Palna High Court", "label": "COURT", "start_char": 22080, "end_char": 22096, "source": "ner", "metadata": {"in_sentence": "Further, it appears that while the C Kerala High Court had expressly dissented from a decision of the Palna High Court in Rohtas Industries Ltd. v. State of Bihar(2 ) and did not accept the propositions laid down by the said Court, this Court had affirmed the aforesaid Patna High Court decision in Rohtas Industries Ltd. v. State of Bihar(3 ) where it was observed thus :\n\n\"We therefore agree with the view of the High Court that clause 24 does not qualify the legal effect of the other im- D portant clauses of the agreement, and that the cement delivered, despatched or consigned by the manufacturing companies to the Marketing Company or to its orders or in accordance with its directions was sold by the manufacturing companies to the Marketing Company ...... \"\n\nIn view of the observations of this Court, therefore, the Kerala High E Court decision referred to above must be held to have been impliedly overruled."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 22248, "end_char": 22264, "source": "ner", "metadata": {"in_sentence": "Further, it appears that while the C Kerala High Court had expressly dissented from a decision of the Palna High Court in Rohtas Industries Ltd. v. State of Bihar(2 ) and did not accept the propositions laid down by the said Court, this Court had affirmed the aforesaid Patna High Court decision in Rohtas Industries Ltd. v. State of Bihar(3 ) where it was observed thus :\n\n\"We therefore agree with the view of the High Court that clause 24 does not qualify the legal effect of the other im- D portant clauses of the agreement, and that the cement delivered, despatched or consigned by the manufacturing companies to the Marketing Company or to its orders or in accordance with its directions was sold by the manufacturing companies to the Marketing Company ...... \"\n\nIn view of the observations of this Court, therefore, the Kerala High E Court decision referred to above must be held to have been impliedly overruled."}}, {"text": "clause 24", "label": "PROVISION", "start_char": 22409, "end_char": 22418, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala High E Court", "label": "COURT", "start_char": 22804, "end_char": 22823, "source": "ner", "metadata": {"in_sentence": "Further, it appears that while the C Kerala High Court had expressly dissented from a decision of the Palna High Court in Rohtas Industries Ltd. v. State of Bihar(2 ) and did not accept the propositions laid down by the said Court, this Court had affirmed the aforesaid Patna High Court decision in Rohtas Industries Ltd. v. State of Bihar(3 ) where it was observed thus :\n\n\"We therefore agree with the view of the High Court that clause 24 does not qualify the legal effect of the other im- D portant clauses of the agreement, and that the cement delivered, despatched or consigned by the manufacturing companies to the Marketing Company or to its orders or in accordance with its directions was sold by the manufacturing companies to the Marketing Company ...... \"\n\nIn view of the observations of this Court, therefore, the Kerala High E Court decision referred to above must be held to have been impliedly overruled."}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 23269, "end_char": 23277, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 23547, "end_char": 23555, "source": "regex", "metadata": {"statute": null}}, {"text": "Caltex Com-", "label": "ORG", "start_char": 24220, "end_char": 24231, "source": "ner", "metadata": {"in_sentence": "We must remember that the agreement in question is a contract for distribution of Hispeedol produced by tb Caltex Com- . ,.."}}, {"text": "A. H. Bhiwandiwalla & Co. (Bombay) Pnvate Ltd.", "label": "PETITIONER", "start_char": 24817, "end_char": 24863, "source": "ner", "metadata": {"in_sentence": "This chart runs thus :\n\n\"A. H. Bhiwandiwalla & Co. (Bombay) Pnvate Ltd., Managing Agents, The Bhopal Sugar Industries Ltd., Sehore, Cash Debit voucher No."}}, {"text": "1-7-1958", "label": "DATE", "start_char": 24957, "end_char": 24965, "source": "ner", "metadata": {"in_sentence": "1-7-1958."}}, {"text": "Bhopal Sugar Industries Ltd.", "label": "ORG", "start_char": 25537, "end_char": 25565, "source": "ner", "metadata": {"in_sentence": "8760-00\n\n6850-00 15610·00\n\nFor the Bhopal Sugar Industries Ltd.\n\nSd/- Illegible Manager. \""}}, {"text": "Mody", "label": "OTHER_PERSON", "start_char": 26120, "end_char": 26124, "source": "ner", "metadata": {"in_sentence": "In this connection, the relevant portion of the Jetter read thus ;\n\n\"We refer to the discussion your Mr. Mody had this forenoon with our M/s. G. H. Sani and M. R. Pata1tlrnr ..... ."}}, {"text": "G. H. Sani", "label": "OTHER_PERSON", "start_char": 26157, "end_char": 26167, "source": "ner", "metadata": {"in_sentence": "In this connection, the relevant portion of the Jetter read thus ;\n\n\"We refer to the discussion your Mr. Mody had this forenoon with our M/s. G. H. Sani and M. R. Pata1tlrnr ..... ."}}, {"text": "M. R. Pata1tlrnr", "label": "OTHER_PERSON", "start_char": 26172, "end_char": 26188, "source": "ner", "metadata": {"in_sentence": "In this connection, the relevant portion of the Jetter read thus ;\n\n\"We refer to the discussion your Mr. Mody had this forenoon with our M/s. G. H. Sani and M. R. Pata1tlrnr ..... ."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 26442, "end_char": 26456, "source": "ner", "metadata": {"in_sentence": "Supplies of Petroleum Products ex Bombay or ex our Depots in Madhya Pradesh have been made to you on the basis of outright sale.\""}}, {"text": "clause 4", "label": "PROVISION", "start_char": 26540, "end_char": 26548, "source": "regex", "metadata": {"statute": null}}, {"text": "Mis Caltex (India) Ltd.", "label": "PETITIONER", "start_char": 26896, "end_char": 26919, "source": "ner", "metadata": {"in_sentence": "The relevant portion of this letter may be extracted thus :\n\n\"Mis Caltex (India) Ltd., never supplied goods i.e. petrol & Hispeedol on consigrunent basis."}}, {"text": "November 7, 1969", "label": "DATE", "start_char": 27465, "end_char": 27481, "source": "ner", "metadata": {"in_sentence": "This aspect of the matter was turt11er reiterated by the appellant in his letter to the Commissioner dated November 7, 1969, the relevant portion of which may be extracted as follows :\n\n\"M/s Caltex (India) Ltd. supplied us petrol & hispeedol\n\nagainst our orders placed with them from time to time and they billed us immediately thereafter at the bulk rates prevailing from time to time ....... Payments were also made to M/s. Caltex (India) Ltd. on outright basis immediately after receipt of the goods. . ....."}}, {"text": "clause 23", "label": "PROVISION", "start_char": 31471, "end_char": 31480, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 15", "label": "PROVISION", "start_char": 33498, "end_char": 33507, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 12", "label": "PROVISION", "start_char": 35043, "end_char": 35052, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 12", "label": "PROVISION", "start_char": 35296, "end_char": 35305, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 26", "label": "PROVISION", "start_char": 39092, "end_char": 39101, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 26", "label": "PROVISION", "start_char": 39268, "end_char": 39277, "source": "regex", "metadata": {"statute": null}}, {"text": "Dunedin", "label": "OTHER_PERSON", "start_char": 40228, "end_char": 40235, "source": "ner", "metadata": {"in_sentence": "In Belthezar and Son v. E. M. Abowath, (1) Lord Dunedin observed as follows :\n\n\"It comes to this, that all the documents show on the face of them a contract as between principals."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 40601, "end_char": 40620, "source": "ner", "metadata": {"in_sentence": "This decision was followed by the Calcutta High Court in Ganesh Export and Impot Company v. Mahadeolal Nathmal( 2) and we find ourselves in complete agreement with the view taken by the Calcutta\n\n11) A.LR. ("}}, {"text": "clause 18", "label": "PROVISION", "start_char": 40972, "end_char": 40981, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_593_602_EN", "year": 1977, "text": "C'f\n\n• 593\n\nSTATE OF HARYANA A v.\n\nN.C.TANDON\n\nApril 14, 1977 rv. R. KRISHNA IYER, R. s. SARKARIA AND JASWANT SINGH, JJ.] B\n\nPrevention of Corruption Act, Section 6( 1) (2 )-Sanction for prosecution- Validity of-Authority empowered to sanction-Delegation of po1ver to sanction.\n\nCenttal Civil Services (Classification, Control and Appeal) Rules 1965- Rule 10-Power delegated to the Chief Engineer of Con11nand-Whethcr can be exercised by the zonal Chief Engineer.\n\nThe respondent v.as convicted for an offence under section 5(2) read with s. 5(1) (d) of the Prevention of Corruption Act, 1947 and section 161 of the\n\nI.P.C. The conviction was set aside by the High Court on the sole ground that the sanction for his prosecution was not accorded by a competent authority.\n\nThe respondent Vias a Civilian in the Defence Services in the rank of temporary Superintendent, Building and oRads Grade I. The prosec11tion case was that he had accepted illegal gratification of Rs. 300/- from one Brij Bhushan Lal, Contractor, as a motive or reward for doing an official act. The snnc.tion for the prosecution of the respondent was accorded by Brig.\n\nNaresh Prasad, Chief Engineer, North Western Zone, Chandigarh.\n\nThe 1-ligh Court held that Brig. Naresh Prasad bad no authority under the relevant rules either plenary or delegated to appoint a person to a post in dass III service at the time when he passed the order for sanction of prosecution. That such a po\\ver \\Vas delegated to him subsequently. The learned Judge held that the authority was the Chief Engineer, Western Command and no1 the Zonal Chief Engineer.\n\nSection 6(1) of the Prevention of Corruption Act provides that no Court shall take cognizance of the offence in question alleged to have been committed by a public servant except with the previous sanction of the officer enumerated in clauses (a), (b) and (c) of that section.\n\nSub-section 2 of section 6 further provides that where for any rea6on \\Vhatsoever any doubt arises whether the previous sanction as required under sub-section ( 1) should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would_ have been competent to remove the public servant from his office at the time \\vhen the offence was alleged to have been committed.\n\nThe appellant contended that by a.n order communicated by letter dated 27-4-1956 (subsequently reiterated in letter dt. 23-1-1963) made under rule 10, the pngineerin-Chief had. empO\\Vered all Chief Engineers in Military Engg.\n\nService to make first appointments and that the operation of the said order \\Vas preserved by the saving clause in rule 34(1) of the 1965 Rules. The appellant further contended tha-t the fetter placed on the power given to the Chief Enaieers in the matter of removal or dismissal of Class III servants operates o; iy in case of persons appointed by the Engineer-in-Chief and not \\vhere he was appointed by the Chief Engineer of a Command.\n\nIn the present case, the respondent was appointed not by Engineer-in-Chief but by the Chief Engineer, Western Command.\n\nThe respondent contended that the order dated 27-4-1956 expressly delegates H the power of inaking first appointments only to the Chief Engineers of the three commands then in existence and of the other departments specified therein.\n\nJn 1956, when the order was made there \\Vere no zonal Chief Enginers, which\n\ncame into existence in December, 1962 as a class apart working under the overall administrative control of the Chief Engineers of Commands. A general delegation of the power in favour of the Chief Engineers of Commands as a class cannot by any reckoning amount to a delegation in favour of the Zonal Engineers also Vr'Orking under the control of the Chief Engineers of Commands.\n\nSecondly, the letter dated 23·1·1963 wais not issued uhder the signature of the Engineer-in-Chief nor can it be construed as a delegation of the powcr of appointment under rule 10.\n\nAlternatively, the power delegated by the Engineer-in-Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss or remove a Government servant of Class 111 service.\n\nDismissing the appeal,\n\nHELD : ( 1) Unless a different intention appears the power to appoint to an office includes the power to dismiss or remove from that office as provided in s. 16 of General Clauses Act. The post which the respondent was holding is a post of Class III service and the members of the service are governed by Central Civil Services (Classification, Control and Appeal) Rules. 1965. 1965 Rules repeal the earlier 1952 Rules and any notification or orders issued there under in so far as. they were inconsistent with the 1965 rules. Under rule 10, appointments to Class III and Class IV Civilian Service are to be made by the officers empowered by the Engineer-in-Chief. Thus the appointing authority is competent to delegate the power of appointment. [596 B, C, G-H, 597D]\n\n(2) A perusal of the letter dated 27-4-1956 communicMing the order of the Engineer-in-Chief shows that it is addressed to the Chief Engineers, Southern Command, .Eastern Command and Western Command.\n\nOn the date of this letter there were only 3 Commands; two Commands were created subsequeiltly.\n\nThere were no Zones or Zonal Chief Engineers at that time. Therefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands a6 a class and it would cover Chief Engineers of the Commands which were subsequently created. But it would not include the Chief Engineers of Zone.\n\nZonal Chief Engineers have to work under the Command and technical control of Chief Engineers of Com mands.\n\nZonal Chief Engineers are a class apart from the Chief Engineers of Commands. They are under the administrative control of the Chief Engineers of Comn1and.\n\nThus the delegation is to the Chief Engineers of Commands and not to the Zonal Chief Engineers. [600 A-B, F-H 601 A-Bl\n\n(3) The letter dated 23-1-1963 is not signed by the Engineer-in-Chief. It appears to have been signed by some other person for Engineer-in-Chief. Nor does it purport to have been issued pursuant to any separately passed order of the Engineer-in-Chief expressly delegating the powers of appointment to posts in Class III service under Rule 10.\n\nThere is nothing in the Jetter to show that the delegation was to the Zonal Chief Engineers.\n\nOn the contrary, paira 8 of the letter talks of tQe Command Chief Engineers.\n\nThe way in \\vhich the Engineer-in-Chief has construed the letter is not relevant.\n\n[601 G-H, 602AB]\n\n(4) Brig. Naresh Prasad, Zonal Chief Engineer was not competent to remove the respondent and as such, the order sanctioning the prosecution of the respondent was bad in law. [602 CJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 126 Of 1977.\n\nAppeal by Special Leave from the Judgment and Order dated the 12-1-1976 of the Punjab and Haryana High Court in Crl.A. No. 583/ 72\n\nR. N. Sachthey and H. s. Marwah for the Appellant.\n\nHARYANA v. N. c. TANDON (Sarkaria, !.)\n\nHardyal Hardy and S. K. Sabbarwal for Respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J .-This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction o! the respondent herein in respect of offences under ss.5 (2) read with s.5{1){d) of the Prevention of Corruption Act, 1947 and 161, Penal B Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority.\n\nN. C. Tandon, respondent was a civilian in the defence service in the rank of temporary Superintendent Building and Roads, Grade 1.\n\nIt was alleged that he had accepted illegal gratification of Rs. 300 / - from one Brij Bhushan Lal, Contractor on 11-3-1971 as a motive or reward for doing an official act.\n\nThe Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula.\n\nThe respondent's duty was to supervise that construction.\n\nThe respondent, it is alleged, demanded the bribe as a reward for recording correct measurements. Brij Bhushan Lal did not, in fact, want to pay the gratification. He therefore informed the Special Police Establishment authorities who on 10-11-1971 trapped the accused and allegedly recovered the tainted money from his possesion.\n\nThe sanction for the prosecution of the accused was accorded by Brig. Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh on 24-6-1971.\n\nThe Special Judge, Ambala tried and convicted the accused on the aforesaid charges and sentenced him to one year's rigorous imprisonment and a fine of Rs. 1.000/-.\n\nTandon appealed to the High Court.\n\nThe appeal was heard by a learned Single Judge who held that on 24-6-1971, when Brig. Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or delegated power to appoint to a post in Class III Service and that such\n\na power was delegated to Chief Engineers of Zones for the first time on 14-1-1972. The learned Judge noted that the authority competent to appoint the accused-respondent on 24-6-71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer. He therefore concluded that the sanction for prosecution of the accused had not been given by the competent authority.\n\nOn this short groun_d, the High Court allowed Tandon's appeal, without going into the merits\n\nof the case.\n\nAt the outset, we may notice the general principles which govern the sanction for prosecution in such cases.\n\nSub-section(!) of s. 6 of the Prevention of Corruption Act says:\n\n\"No court shall take cognizance of an offence punishable nnder s. 161 (or sec. 164) or section 165 of the Indian Penal Code, or under sub-section (2) (or sub-section (3A) of section 5 of this Act, alleged to have been committed by a pub- H lie servant, except with the previous sanction of the authorities enumerated in clauses (a), (b) and ( c) of that section.\"\n\nSub-section_ (2) of the section provides :\n\n\"Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section ( 1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority \"which would have been competent to remove the public servant from his office at the time when the offeni:e w.aa all€ged to have been committed.\"\n\n(emphasis added)\n\nThus the test as indicated in this sub-section, for judging the competency of the authority giving the sanction is, whether at the time of the alleged commission of the offence, it had the power to remove the public servant from his office.\n\nAnother principle to be borne in mind is, that unless a differ•ent intention appears, the power to appoint to an office includes the power to dismiss or remove from 'that office ( vide s. 16, General Clauses Act).\n\n_We may further clear the ground and have a short, swift look at the relevant statutory rules- It is common ground that the post ol Superintendent, Grade I (B & R) which the accused was temporarily holding, is a post of Class III Services, and the members of this Service are governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, hereinafteu called 1965 Rules).\n\nThe 1965 Rules were promulgated on November 20, 1965. Rule 34 of the 1965 Rules repealed the earlier Rules of 1952 and any notification or orders issued thereunder \"in so far as they are inconsistent with (the 1965 Rules)\".\n\nOne of the provisions of the 1952 Rules, which is relevant for our purpose, and which has substantially been rt:produced in the 1965 Rules, is Rule 10. It reads as under :\n\n\"10. All first appointments to Class I and Class II Services shall be made by the Government.\n\nAli first appoint· ments to Class III and Class- IV services shall be made by the authorities specified in column 3 of Schedule N in respect of posts mentioned against them or by officers empowered in this behalf by such authorities:\"\n\n(emphasis added).\n\nSchedule IV referred to in the Rule ran as follows :\n\n\"Schedule IV (Vide Rules, 10, 11, 12, 14 and 19).\n\nSI.\n\nPosts Appointing Autho- No. rities in resPect 0f Class !II and Class IV posts (vide rule 10).\n\nI to 7\n\n8. PQsts in lower formatiQn under\n\nE-in-C's l3r•nch\n\nE-in-C'\n\nAuthority 1~.nwowert d to 1rnpC'lse penalties (i), (ii\\\n\n(iv) rnd (v) of 1 ule 13 for Class II Officers (Vid1! r. 14)\n\nC. Es. of th•o Commands. x .\"\n\nHARAYANA v. N. c. TANDON (Sarkaria, J.) 597\n\nThe former Rule 10 as recast into Rule 9 of the 1965 Rules reads A as below :\n\n\"9 ( 1) All appointments to Central Civil Services (other than General Civil Service) Class II, Class III and Class IV shall be made by the authorities specified in this behalf in the Schedule.\n\nProvided that in respect of Class Ill and Class IV Civilian Services, or civilian posts in the Defence Services appointments may be made by officers empowered in this behalf by the aforesaid authorities. (emphasis added)\n\n(2) AU appointments to the Central Civil Posts, Class II, C Class III and Class IV included in the General Central Civil Service shalJ be made by the authorities specified in this behalf by a general or special order made, by the authorities specified in this behalf in the Schedule.\"\n\nIt may be noted that both under the old Rule 10 and the Proviso to D new Rule 9 (1), the appointing authority is competent to delegate the power of appointment in respect of Class III Service.\n\nRule 13 enumerated. these penalties which could be impoBed upon the servants subject to the Rules :\n\n(i) Censure.\n\n(ii) Withholding of increments or promotion.\n\n(iii) Reduction to a lower post or time-scale or to a lower stage in a time-scale.\n\n(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by .negligence or breach of orders; F\n\n(v) Suspension.\n\n(vi) Removal from the civil service of the Government, which does not disqualify from future employment.\n\n(vii) Dismissal from the civil service of the Government which ordinarily disqualifie;; from future employ- G ment.\n\n(viii) Compulsory retirement .... \"\n\nRule 14 of 1952 Rules specified who could impose these penalties It provided : ·\n\n\"14(1) Any of the penalties specified in rule 13 may be im-\n\nµ01; ed on any person subject to these rules by the Government or by the appointing authority.\n\n(2)\n\n(a)\n\n(bl\n\nWithout prejudice to the provisions of sub-rule (I), any of the penalties specified in clauses (i), (ii),\n\n(iv) or (v) of rule 13 may be imposed.\n\nin the case of members of Class III and IV services by the authority empowered in this behalf by the appointing authority.\n\nExplanation.-In this rule the expression \"appointing\n\nauthority\" includes an officer empowered under Rule 10 to make first appointments to Class III and Class IV Services.\"\n\nRules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material aspects, excepting two, nameey, (1) Su!spension\n\nhas been taken out of the category of penalties, and (2) the Explanation appended to Rule 14 has been omitted because in the 1965 Rul,; s, the subject matter of that Explanation has been made a part of the definition of \"Appointing Authority\" given in Rule 2(a).\n\nThe mafa submission of Mr. Sachthey, learned Counsel for the appellant is that by an order communicated per letter, dated 27-4-1956, made under Rule 10 of the 1956 Rules, (subsequently reiterated in letter dated 23-1-1963) the Engineer-in-Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments, inter alia, to posts in Class III Service, and that the operation of the aforesaid order was preserved and continued by the saving clause in Rule 34(1) of the 1965 Rules.\n\nOn these premises, it is maintained, that the High Court was wrong in holding that the Chief Engineer of the North-Western Zone, Chandigarh was not the 'appointing authority competent to remove the accused from service.\n\nAs against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that thfl order, dated 27-4-56, expressly delegat~. the power of making first appointments,, only to the Chief Engineers of the three Commands, then in existence, and to the other authorities spedfied therein. It is pointed out that in 1956 when this order was made, there were no Zonal Chief Engineers which came into existence on reorganization in December 1962, as a class apart, working under the overall administrative control of the Chief Engineers of Commands. The point pressed into arguments is that a general delegation of the power in favour of Chief Engineers of Commands, as a class, cannot, by any reckoning, amount to a delegation in favour of the Zonal Chief Engineers, also, working under the control of the Chief Engineers of Commands.\n\nMr. Hardy has further submitted that the letter dated 23-1-1963 has not been issued under the signature of the Engineer-in-Chief, nor can it, by any; stretch of language, be construed as a delegation of the power of appointment under Rule 10. In the alternative, it is submitted the power delegated by the Engineer-in-Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss\n\nHARYANA v. N. c. TANDON (Sarkaria, !.) 599\n\nor remove a Government servant of Class III Service.\n\nIt is maintained that by the aforesaid letter, the Chief Engineers were empowered to impose only minor penalties other than that of dismissal aad removal. It is urged, in view of this restricted delegation in the matter of infilcting penalties, it cannot he said that on the principle underlying Sec. 16 of the General Clauses Act power of appointment will automatically include the power to remove the person appointed from his office.\n\nIn reply, Mr. Sachthey has pointed out that the fetter placed on the power given to the Chief Engineers by the letter dated 27-4-56, in the matter of removal or dismissal of Class III servants, operates only in case of persons appointed by the Engineer-in-Chief, and not where he was appointed by the Chief Engineer of a Command.\n\nIt is pointed out that in the instant case, the accused was appointed not by E-in-C but by the Chief Engineer, Western Command, Simla.\n\nThe main question that falls to be considered is, whether the E-in-C's order communicated through letter, dated 27-4-1956, can be construed as a valid delegation of the power of appointment to posts in Class III Service to Zonal Chief Engineers, which came into existence on re-organization in December, 1962?\n\nThe material part of this letter reads as under :\n\n\"To\n\nThe Chief Engineer, Southern Command, Poona Eastern Command, Lucknow Western Command, Simla x x\n\nSubject : Civilians in Defence Services (Classification, Control and Appeal Rules, 1962).\n\nWith reference to Rule 10 of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1962, I hereby authorise the authorities mentioned hereunder to make first appointments to Class III and IV Services to the extent indicated below :\n\nAuthority Posts\n\n(a) Chief Engineers\n\n(b) CWO, NDES All posts with the exception of permanent appointments to the follow ing categories : G\n\n(i) SuPerintendent, BIR Grade I. • * •\n\n2. Under Rule 14(b) of CDS (Cc&A) Rules, 1952 the undermentioned authorities are empowered to impose penalties referred to in Rule 13 ibid, to the extent indicated below :-\n\n(a) CbiefEngineers and CWO, NDES Penalties at (i), (ii), (iv) and (v) of Rule 13 on Class Ill employees in respect of whom Ein.c is the appoint. ing authority.\"\n\nA perusal of this letter will show that it is (among others) addressed to the Chief Engineers, Southern Command, Eastern Command, Lucknow, and Western Command, Simla.\n\nOn the date o:f this letter there were only three Commands; two commands wem created subsequently.\n\nThere were no Zones or Zonal Chief Engineers at tl\\at time.\n\nTherefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands, as a class.\n\nSince the delegation lias been to the Chief Engineers of the Commands, as a class, it will cover the Chief Engineers of these Commands, also, which were subsequently created.\n\nBut, the question is will it take in Chief Engineer o~ :ZOru:s and amount to a delegation of power in their favour, too, on their creation six years later in 1962 ? Answer to this question will depend on whether the Chief Engineers of Zones belong to the same\n\nclass holding the same rank and exercising same administrative powers and control as the Chief Engineers of Commands ?\n\nAt the final bearing, we bad asked Shri Sacbtbey, to make ava, ilable to us the official order, regulations and like material throwin& light on this aspect of the problem.\n\nFrom the material furnished by him, it appears that the decision to reorganize the Military Engineering Service was taken by the Government in December, 1962. Pursuant to that decision, the Zones were created and Engineering Services in each Zone were placed under the charge of a Chief Engineer, of that Zone.\n\nChandigarh area was also made North-Western Zone, for this purpose.\n\nThis reorganisation took effect from January 1, 1963. The main object of creation of Zonal Chief Engineers as stated in C-in-C's letter No. 66161/Il/E2A, dated 13-12-1962, was to \"effect maxinmm possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services.\"\n\nAs is apparent from the letter dated 22/26-12-1962 from the Engineer-in-Chief, the Zonal Chief Engineers have to work \"under the command and technical control of CEs Commands for the planning and execution of works.\" E-in-C's letter, No. 6161/Il/E2A, dated December 13, 1962 addressed to the Chief Engineers, Commands and others, also, makes it clear that nnder the re-organized set up, \"C.E. located at each Command H.Q. will be responsible for all engineer matters in the Command, administration and training of engineer troops and for the coordination of works. Under the Command and technical control of this Chief Engineer there will be number of CEs/CsWE ... on zonal basis.\"\n\nThese two letters unmistakably show that the zonal Chief Engineers are a class apart from the Chief Engineers of Commands.\n\nAlthough extensive financial powers have been delegated to the Zonal\n\nChief Engineers, which are almost the same as that of the Chief Engineers of the Commands, the fact remains that they are under the overall administrative control of the Chief Engineer of tlie Commands concerned.\n\nHARYANA v. N. c. TANDON (Sarkar/a, J.) 601\n\nIn this view of the matter the scope of the delegation of the powers made under the letter dated 27-4-1956, must be construed as a delegation only to the Chief Engineers of Commands, as distinguished from the Chief Engineers of Zones which were then not even in embryo.\n\nThis takes us to the letter dated January 23, 1963 from the Army H.Qrs., E-in-C's Branch. In the first place, this letter is not signed by the E-in-C. It appears to have been signed by some other i:>erson\n\n\"for E-in-Chief'; secondly it does not purport to have been issued pursuant to any separately passed order of the E-in-C expressly delegating under Rule 10; the powers of appointment to posts in Class III Service.\n\nThe opening sentence of this letter, no doubt, refers to HQ Letters No. 66161/II-E2A, dated 8 Dec. 1962, para 4 and even No. of 22 Dec. 1962, which we. have already noticed.\n\nThere is nothing in them which delegates the powers of appointment to any posts to the Zonal Chief Engineers.\n\nOn the contrary, para E of this letter says \"All Class III and IV personnel will be provided by the\n\nCommand CE and will continue to be borne on the strength of that Command for purposes of (a) All documentation (b) Temporary promotion (c) Permanency\n\n(d) Retrenchment and reversion (e) Pension-progress by the Unit but overall control by the Commarid CE.\"\n\n(Emphasis added)\n\nMr. Sachthey has placed great stress on para 12 of this letter which says :\n\n\"The normal powers of Chief Engineer in all matters\n\nrelating to appointments, punishments etc. vest with each .E Zonal Chief Engineer in accordance with this HQ letter No. 27304/EID(2) dated 27th April 1956. In exercising these powers it will be necessary to consult CE Command prior to recruitment and replacements.\"\n\nThe argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956 has construed F it as delegating the powers of appointment, punishment etc. to the Zonal CEs. also, and therefore, the Court should accept that interpretation.\n\nWe are unable to accept this argument. We have already pointed . out that this letter, dated 23-1-63, has not been issued under the signature of the same authority from which the order, dated 27-4-56, G had emanated. It does not ex facie show that any order, apart from that dated 27-4-56, had been passed by the Engineer-in-Chief under Rule 10.\n\nFor reasons given earlier, we have no hesitation in holding that, the assumption made in Paragraph 12 of this letter extracted above, to the effect that the Zonal Chief Engineers were vested with powers of appointments, punishments etc. in accordance with H.Q. letter dated 27 April 1956 was clearly incorrect, Perhaps, thai was H why on 14-1-1972, the necessity of making a proper order delegating such powers to Zonal Chief Engineers and others, under Rule 9 was felt by the Engineer-in-Chief.\n\nA No other order of the Engineer-in-Chief made prior to 24-6'-197 l under Rule 10 of 1952 Rules or under Rule 9(1) of the 1965 Rules delegating the power of appointment to posts in Class Ill Services, has been placed before us.\n\nWe have therefore no alternative but to hold that on 24-6-1971, Brig.\n\nNaresh Prasad, Zonal Chief Engineer, North Western Zone, Chandigarh, was not competent to remove the accused-respondent, Tandon, from the post of Superintendent, B&R B Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.\n\nIn view of this finding, we do not think it necessary to examine the alternative contention advanced by Shri Hardy.\n\nThe case fa'i!s because there is no valid sanction, as required by the law.\n\nObviously, this does not preclude a fresh prosecution for the same offence-but C 1d't is ahmthatter for the 1 . Stateh, in 1 dthbe c 1 ircumhstdances. of thhe case, todconsier w e er prosecu ion s ou e aunc e agamst t e respon ent or not. We make this observation only to remove a possible misapprehension.\n\nIn the result, the appeal fails and is dismissed.\n\niP.H.P.\n\nAppeal dismissed.", "total_entities": 78, "entities": [{"text": "593\n\nSTATE OF HARYANA", "label": "PETITIONER", "start_char": 7, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA", "offset_not_found": false}}, {"text": "C.TANDON", "label": "RESPONDENT", "start_char": 37, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "C.TANDON", "offset_not_found": false}}, {"text": "1977 rv. R. KRISHNA IYER", "label": "JUDGE", "start_char": 57, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 83, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "R.S. 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N. Sachthey", "label": "LAWYER", "start_char": 7023, "end_char": 7037, "source": "ner", "metadata": {"in_sentence": "583/ 72\n\nR. N. Sachthey and H. s. Marwah for the Appellant."}}, {"text": "H. s. Marwah", "label": "LAWYER", "start_char": 7042, "end_char": 7054, "source": "ner", "metadata": {"in_sentence": "583/ 72\n\nR. N. Sachthey and H. s. Marwah for the Appellant."}}, {"text": "Hardyal Hardy", "label": "LAWYER", "start_char": 7115, "end_char": 7128, "source": "ner", "metadata": {"in_sentence": "Hardyal Hardy and S. K. Sabbarwal for Respondent.", "canonical_name": "Hardyal Hardy"}}, {"text": "S. K. Sabbarwal", "label": "LAWYER", "start_char": 7133, "end_char": 7148, "source": "ner", "metadata": {"in_sentence": "Hardyal Hardy and S. K. Sabbarwal for Respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 7210, "end_char": 7218, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J .-This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction o!", "canonical_name": "SARKARIA"}}, {"text": "ss.5", "label": "PROVISION", "start_char": 7400, "end_char": 7404, "source": "regex", "metadata": {"statute": null}}, {"text": "s.5", "label": "PROVISION", "start_char": 7419, "end_char": 7422, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 7436, "end_char": 7470, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Penal B Code", "label": "STATUTE", "start_char": 7480, "end_char": 7492, "source": "regex", "metadata": {}}, {"text": "N. C. Tandon", "label": "RESPONDENT", "start_char": 7599, "end_char": 7611, "source": "ner", "metadata": {"in_sentence": "N. C. Tandon, respondent was a civilian in the defence service in the rank of temporary Superintendent Building and Roads, Grade 1."}}, {"text": "11-3-1971", "label": "DATE", "start_char": 7846, "end_char": 7855, "source": "ner", "metadata": {"in_sentence": "300 / - from one Brij Bhushan Lal, Contractor on 11-3-1971 as a motive or reward for doing an official act."}}, {"text": "Chandigarh Cantonment", "label": "GPE", "start_char": 7987, "end_char": 8008, "source": "ner", "metadata": {"in_sentence": "The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula."}}, {"text": "Panchkula", "label": "GPE", "start_char": 8014, "end_char": 8023, "source": "ner", "metadata": {"in_sentence": "The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula."}}, {"text": "10-11-1971", "label": "DATE", "start_char": 8323, "end_char": 8333, "source": "ner", "metadata": {"in_sentence": "He therefore informed the Special Police Establishment authorities who on 10-11-1971 trapped the accused and allegedly recovered the tainted money from his possesion."}}, {"text": "24-6-1971", "label": "DATE", "start_char": 8552, "end_char": 8561, "source": "ner", "metadata": {"in_sentence": "Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh on 24-6-1971."}}, {"text": "Special Judge, Ambala", "label": "COURT", "start_char": 8568, "end_char": 8589, "source": "ner", "metadata": {"in_sentence": "The Special Judge, Ambala tried and convicted the accused on the aforesaid charges and sentenced him to one year's rigorous imprisonment and a fine of Rs."}}, {"text": "Tandon", "label": "PETITIONER", "start_char": 8729, "end_char": 8735, "source": "ner", "metadata": {"in_sentence": "Tandon appealed to the High Court.", "canonical_name": "C.TANDON"}}, {"text": "14-1-1972", "label": "DATE", "start_char": 9138, "end_char": 9147, "source": "ner", "metadata": {"in_sentence": "Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or delegated power to appoint to a post in Class III Service and that such\n\na power was delegated to Chief Engineers of Zones for the first time on 14-1-1972."}}, {"text": "24-6-71", "label": "DATE", "start_char": 9239, "end_char": 9246, "source": "ner", "metadata": {"in_sentence": "The learned Judge noted that the authority competent to appoint the accused-respondent on 24-6-71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer."}}, {"text": "Simla", "label": "GPE", "start_char": 9288, "end_char": 9293, "source": "ner", "metadata": {"in_sentence": "The learned Judge noted that the authority competent to appoint the accused-respondent on 24-6-71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer."}}, {"text": "Tandon", "label": "RESPONDENT", "start_char": 9495, "end_char": 9501, "source": "ner", "metadata": {"in_sentence": "On this short groun_d, the High Court allowed Tandon's appeal, without going into the merits\n\nof the case.", "canonical_name": "C.TANDON"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 9685, "end_char": 9689, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 9697, "end_char": 9725, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 9796, "end_char": 9802, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 164", "label": "PROVISION", "start_char": 9807, "end_char": 9815, "source": "regex", "metadata": {"statute": null}}, {"text": "section 165", "label": "PROVISION", "start_char": 9820, "end_char": 9831, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9839, "end_char": 9856, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 5", "label": "PROVISION", "start_char": 9907, "end_char": 9916, "source": "regex", "metadata": {"statute": null}}, {"text": "Central or State Government", "label": "ORG", "start_char": 10280, "end_char": 10307, "source": "ner", "metadata": {"in_sentence": "Sub-section_ (2) of the section provides :\n\n\"Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section ( 1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority \"which would have been competent to remove the public servant from his office at the time when the offeni:e w.aa all€ged to have been committed.\""}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10985, "end_char": 10990, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 10992, "end_char": 11011, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "November 20, 1965", "label": "DATE", "start_char": 11455, "end_char": 11472, "source": "ner", "metadata": {"in_sentence": "The 1965 Rules were promulgated on November 20, 1965."}}, {"text": "Schedule IV referred to in the Rule", "label": "STATUTE", "start_char": 12168, "end_char": 12203, "source": "regex", "metadata": {}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 12223, "end_char": 12234, "source": "regex", "metadata": {"linked_statute_text": "Schedule IV referred to in the Rule", "statute": "Schedule IV referred to in the Rule"}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 12619, "end_char": 12627, "source": "ner", "metadata": {"in_sentence": "HARAYANA v. N. c. TANDON (Sarkaria, J.) 597\n\nThe former Rule 10 as recast into Rule 9 of the 1965 Rules reads A as below :\n\n\"9 ( 1) All appointments to Central Civil Services (other than General Civil Service) Class II, Class III and Class IV shall be made by the authorities specified in this behalf in the Schedule.", "canonical_name": "SARKARIA"}}, {"text": "Sachthey", "label": "OTHER_PERSON", "start_char": 15389, "end_char": 15397, "source": "ner", "metadata": {"in_sentence": "The mafa submission of Mr. Sachthey, learned Counsel for the appellant is that by an order communicated per letter, dated 27-4-1956, made under Rule 10 of the 1956 Rules, (subsequently reiterated in letter dated 23-1-1963) the Engineer-in-Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments, inter alia, to posts in Class III Service, and that the operation of the aforesaid order was preserved and continued by the saving clause in Rule 34(1) of the 1965 Rules."}}, {"text": "Hardyal Hardy", "label": "LAWYER", "start_char": 16115, "end_char": 16128, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that thfl order, dated 27-4-56, expressly delegat~. the power of making first appointments,, only to the Chief Engineers of the three Commands, then in existence, and to the other authorities spedfied therein.", "canonical_name": "Hardyal Hardy"}}, {"text": "27-4-56", "label": "DATE", "start_char": 16196, "end_char": 16203, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that thfl order, dated 27-4-56, expressly delegat~. the power of making first appointments,, only to the Chief Engineers of the three Commands, then in existence, and to the other authorities spedfied therein."}}, {"text": "Hardy", "label": "OTHER_PERSON", "start_char": 16932, "end_char": 16937, "source": "ner", "metadata": {"in_sentence": "Mr. Hardy has further submitted that the letter dated 23-1-1963 has not been issued under the signature of the Engineer-in-Chief, nor can it, by any; stretch of language, be construed as a delegation of the power of appointment under Rule 10."}}, {"text": "Sec. 16", "label": "PROVISION", "start_char": 17740, "end_char": 17747, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 17755, "end_char": 17774, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Control and Appeal Rules, 1962", "label": "STATUTE", "start_char": 18870, "end_char": 18900, "source": "regex", "metadata": {}}, {"text": "Lucknow", "label": "GPE", "start_char": 19808, "end_char": 19815, "source": "ner", "metadata": {"in_sentence": "A perusal of this letter will show that it is (among others) addressed to the Chief Engineers, Southern Command, Eastern Command, Lucknow, and Western Command, Simla."}}, {"text": "Sacbtbey", "label": "OTHER_PERSON", "start_char": 20756, "end_char": 20764, "source": "ner", "metadata": {"in_sentence": "At the final bearing, we bad asked Shri Sacbtbey, to make ava, ilable to us the official order, regulations and like material throwin& light on this aspect of the problem."}}, {"text": "January 1, 1963", "label": "DATE", "start_char": 21307, "end_char": 21322, "source": "ner", "metadata": {"in_sentence": "This reorganisation took effect from January 1, 1963."}}, {"text": "13-12-1962", "label": "DATE", "start_char": 21430, "end_char": 21440, "source": "ner", "metadata": {"in_sentence": "66161/Il/E2A, dated 13-12-1962, was to \"effect maxinmm possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services.\""}}, {"text": "22/26-12-1962", "label": "DATE", "start_char": 21619, "end_char": 21632, "source": "ner", "metadata": {"in_sentence": "As is apparent from the letter dated 22/26-12-1962 from the Engineer-in-Chief, the Zonal Chief Engineers have to work \"under the command and technical control of CEs Commands for the planning and execution of works.\""}}, {"text": "December 13, 1962", "label": "DATE", "start_char": 21839, "end_char": 21856, "source": "ner", "metadata": {"in_sentence": "6161/Il/E2A, dated December 13, 1962 addressed to the Chief Engineers, Commands and others, also, makes it clear that nnder the re-organized set up, \"C.E. located at each Command H.Q. will be responsible for all engineer matters in the Command, administration and training of engineer troops and for the coordination of works."}}, {"text": "January 23, 1963", "label": "DATE", "start_char": 23022, "end_char": 23038, "source": "ner", "metadata": {"in_sentence": "This takes us to the letter dated January 23, 1963 from the Army H.Qrs.,"}}, {"text": "8 Dec. 1962", "label": "DATE", "start_char": 23501, "end_char": 23512, "source": "ner", "metadata": {"in_sentence": "66161/II-E2A, dated 8 Dec. 1962, para 4 and even No."}}, {"text": "27th April 1956", "label": "DATE", "start_char": 24340, "end_char": 24355, "source": "ner", "metadata": {"in_sentence": "27304/EID(2) dated 27th April 1956."}}, {"text": "April 27, 1956", "label": "DATE", "start_char": 24577, "end_char": 24591, "source": "ner", "metadata": {"in_sentence": "The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956 has construed F it as delegating the powers of appointment, punishment etc."}}, {"text": "23-1-63", "label": "DATE", "start_char": 24846, "end_char": 24853, "source": "ner", "metadata": {"in_sentence": "out that this letter, dated 23-1-63, has not been issued under the signature of the same authority from which the order, dated 27-4-56, G had emanated."}}, {"text": "24-6'-197 l", "label": "DATE", "start_char": 25653, "end_char": 25664, "source": "ner", "metadata": {"in_sentence": "A No other order of the Engineer-in-Chief made prior to 24-6'-197 l under Rule 10 of 1952 Rules or under Rule 9(1) of the 1965 Rules delegating the power of appointment to posts in Class Ill Services, has been placed before us."}}, {"text": "Tandon", "label": "RESPONDENT", "start_char": 26018, "end_char": 26024, "source": "ner", "metadata": {"in_sentence": "Naresh Prasad, Zonal Chief Engineer, North Western Zone, Chandigarh, was not competent to remove the accused-respondent, Tandon, from the post of Superintendent, B&R B Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.", "canonical_name": "C.TANDON"}}]}
{"document_id": "1977_3_603_626_EN", "year": 1977, "text": "VELJI LAKSHMI & CO. ETC. v.\n\nBENEIT COLEMAN & CO. ETC.\n\nApril 14, 1977\n\n[R. S. SARKAR!A AND JASWANT SINGH, JJ.J\n\nBornbay Municipal Corporation Act, 1888-Respondents given permission to raise teniporary structures on land on condition tl1at they should be pulled down when called upon to do so-Pren1ises let out to appellant-Municipal Comn1issioner directed. respondents to pull down the structures to implement Town Planning Scheme-Commissioner, if competent to order demolition.\n\nInterpretation : Rights and obligations acquired under a te1nporary Act- Jj survive after expiry of the Act.\n\nRespondent No. 1 constructed some godowns on the plot of land leased out to them by the Bombay Port Trust in 1933. As a result of explosions in 1944, -some of the buildings in the area were destroyed.\n\nIn order that the building construction v.1ork in the area might be carried out on modern lines, the Bombity Municipal Corporation formulated a scheme under the provisions of the Bombay . Town Planning Act, 1915 to restrain the owners of the land fron1 re-constructing D in a haphazard manner in the devastated area. The Governor of Bombay by a proclamation issued under s. 93 of the Government of India Act. 1935, enacted the City of Bombay (Building, Works and Reconstruction) Act, 1944.\n\nSection 3 of the 1944-Act prohibited for a period of one year from the date of the commencen1ent of the Act. the work of erecting, constructing, reconstructing, etc. of any building, wall or other structure situate within the specified area except under the written permission of the Commissioner and in E accordance with the conditions that might be specified therein.\n\nSection 8 of the Act provided that the benefit of any written permission granted under s. 3 shall be annexed to and shall go with the ownership of the building in respect of which it was granted and may be enforced by every person in whom that ownership was vested.\n\nIn September 1947, the Municipal Commissioner granted written permission (Exhibit A) to respondent No. 1 under s. 3 Of the 1944-Act to raise ten1porary godowns on the land on condition that the Commissioner might at any time F direct the owner to pull down or remove the work forthwith or within such time as may be prescribed.\n\nOne of the godowns erected by respondent No. 1 was leased out to appe1Iant No. 1 in 1953 and the lease was extended from time to time till 1957. In that year the State Government sanctioned a scheme called the TI>wn Pianning Bombay City No. I scheme under the Bombay Town Planning Act, 1954 and the scheme came into operation on December l, 1957.\n\nThe final scheme G became a part and parcel of the Bombay Town Planning Act 1954.\n\nResporuJ.; nt No. l issued a notice to the appellant calling upon it to quit and give vacant possession of the godown leased out to it.\n\nOn September 19, 1953, the Municipal Cdrnmissioner, Greater Bombay, issued a notice (Exhibit B) to respondent No. 1 calling upon it to pull down and remove the entire building for the construction of Vv'hich permission was granted to it in 1947.\n\nRespondent No. 1, in turn, iss\"q.ed a notice to the appellant calling upon it to quit. The appellant having refused to give vacant possession of the godown, respondent No. 1 filed a suit for the appellant's eviction on the ground that the premises were rquired H under s. 13(1) (hhh) of the Bombay Rents (Hotel and Lodging Houses Rates) Control Act, 1947 for the immediate purpose of demolition ordered by the local authority.\n\nA The trial court ordered the appellant's eviction and delivery of immediate possession of_ t{ie premises to respondent .No. 1.\n\nThe appellate court allowed the appellant's appeal.\n\nThe High Court set aside the decree of the appellate court.\n\nOn appeal it was contended by the appellants that (i) the 1944-Act being c:\n\ntempoary Act, lapsed on the expiry o~ two years. from April, 1946 and so the Comm1ss1oner v.1a.s not competent to issue Exhibit B-Notice or to take step~:; to enforce the conditions imposed by him under s. 3 \\vhile granting written permission to con§truct the pe.rnises.\n\n(ii) The Municipal Commissioner bavin.g ceased to have statutory existence on the expiry of the 1944-Act Exhibit B-notice was a nullity, (iii) Eveh assuming that the Municipal Comissioner did not become non est on the expiry of the 1944Act, the notice was ineffective beca'!-lse s. 489 of the Bombay Municipal Corporation Act, 1888 envisage:s the issue of a notice only for giving effect to the requisition or order 1nade under the sectlon. (iv) No statutory rule or bye.Jaw having been made urider the 1944Act, Exhibit Bnotice did not constitute an order contemplated by s. 13(1 )(hhh) of the Bombay Rent Control Act. 1947, (v) Under s. 13(1)\n\n(hhh) before :Passing the eviction order the Court must be satisfied that the demolition \\Yas imminent and the evidence led in this case showed that the premises were not required for immediate demolition; (vi) The final schen1e having been :suspended a.nd varied, there was no subsisting order and since there was no urgency for the demolition of the pren1ises, invocation of s. 13 ( L)\n\n(hhh) was not called for and (vii) Exhibit B notice was ineffective because under the Tov,'n Planning Acts of 1915. 1954 or 1966, it was the local author1ty and not the landlord that had th~ power to evict.\n\nDismissing the appeals,\n\nHELD : 1. (a) There is no force in the contention that the Municipal Com missioner was not competent to is:nc Exhibit Bnotice.\n\nThe provisions -of ss. 3 and 8 of the 1944Act Were permanent as to the restrictions, rights and obligations imposed, acquired or incurred thereunder.\n\nA fortiori, the rights acquired by the Municipal Commissioner by vi._-tue of the express conditions in1poed by him while granting Exhibit A permission, \\Vere not subject to a time limit and did not lapse with the expiry of the Act. [621 E; 620 HJ\n\n(b) The analogy of the rule that criminal proceedings taken ainst a person for offences committed under a temporary statute will ipso facto terminate wb.en the temporary statute expired cannot be extended to rights and liabilities as in the instant case.\n\nIt ts settled la0w that transactions con eluded and completed under a temporary statute, while the same was in force, often endure anJ continue despite the expiry of the statute and so do the rights and obligations acquired or incurred thereunder, depending upon the provisions of the statute and the nature and character of the rights and liabilities.\n\nNo rigid or inflexible rule can be laid down in this behalf.\n\n[616 F-G]\n\nIn the instant case, the City of Bombay (Building Works Restriction) Act 1944, as evident from its preamble and statement of Objects a11d Reasons was designed to prevent the growth of buildings in a haphazard fashion \\\\hich might conflict with the contemplated scheme of systematic town planning in the area devastated by explosion.\n\nSection 3 of the 1944Act which related to the imposition of restrictions on building work in that area, including the p\\1)t in question, authorised the Municipal Commissioner to impose such conditiqns as he might think fit to specify while grantin_g permission for construction of & building or a structure.\n\nThe Municipal Commissioner gave permission to the respondents to build on the plot subject to the express condition that the structures \\Vould be pul1ed down whenever required to do so to give effect to any improvement scheme that might be made under the Town Planning Act.\n\nThe rights and obligations tlo\"'; ng from the conditions subject to which the permission to build was granted to the respondents were annexed to the ownr~ ship of th~: building for a1l time to come and were not limited to the duration of the 1944-Act. [620 E-G]\n\nS'ale of Orissrl v. Bh11pendra K11mar Bose [1962] 2 Supp. S.C.R. 380. followed.\n\nVELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO. 605\n\nS. Krishnan and Ors. v. The State of Madras (1951] SCR 621, The State A of Uttar Pradesh v. Seth Jagamandar Das and Ors. A.I.R. 1954 S.C. 683 and Gopi Chand v. The Delhi Administration (1959] Supp. 2 SCR 87 distinguished.\n\nSteavenson v. Oliver (151 E.R. 1024, 1026-1027) and Warren v. Windle (1803] 3 East 205, 211-212-102 E.R. (K.B.) 578, referred to.\n\n2. Though the 1944-Act was a temporary Act, the Commissioner did not cease to exist with th(f expiry of that Act.\n\nThe 1944-Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888.\n\nBeing a creature of the 1888- Act and a functionary required to be appointed from time to time in terms of s. 54 of that Act, his life did not depend upon the Jif~ of th~ 1944-Act.\n\n[621 F-GJ\n\n3(a) The challenge to the validity of the notice on the ground of lack of power in the Commissioner was wholly unjustified.\n\nAlthough Exhibit Bnotice was purported to have been issued_ under s. 489 of the 1888-Act, it was really issued under Special Regulation 36 which beca1ne a part and parcel of C the Town Planning Act 1954 by virtue of s. 51 (3) of the Act.\n\nThe notice showed that it was being issued under the Town Planning Act, 1954.\n\nThe notice was, therefore, issued under the Special Regulation No. 36. [622 A BJ\n\n(b) The fact that reference to s. 489 of the 1888-Act was erroneott., Iy or incorrectly made in the notice, was inunaterial.\n\nIt is settled Jaw that if the exercise of power could be traced to a legitimate source, the fact that it was exercised under a different power did not vitiate the exercise of the power in question.\n\n(622 C-D] Afzal Ullah v. The State of Uttar Pradesh (1964] 4 SCR 991 1000; /. K.\n\nSteel Ltd. v. Union of India [1969] 2 SCR 481 505; N. B. Sanjana v. Elphinstone Mill [1971] 3 SCR 506 515 and H. L. Mehra v. Union of India [1975] I SCR\n\n138, 149 referred to.\n\n4. The direction in Exhibit Bnotice for demolition of the premises clearly had its origin in the statutory provisions and it constituted an order within the meaning of s. 13(1)(hhh) of the 1947-Act.\n\nThe Municipal Commissioner E had plenary puwer under s. 3 of the 1944-Act to authorise the construction of a•ny building or structure in the area subject to restrictions specified in the permission.\n\nThe. permission had been granted subject to the express condition that respondent No. 1 shall pull down or remove the ten1porary structure when called upon.\n\nIt can be enforced by the Commissioner under 'Regulations 36 and 38 of the Special Regulation.\n\n[624 E; 622H] 5(a) In view of the findings of fact by the court below that the pre1nises were required for the immediate purposes of demolition, it was not open to F the appellants to raise the point at this stage. [624 F]\n\n(b) There is a vital difference between els. (hh) and (hhh) of s. 13(1).\n\nWhile cl. (hh) relates to the landlords bona fide intention to demolish the build- . ing of his own volition and to erect a new building in its place, cl. (hhh) relates to the compulsory demolition ordered by a local or con1petent authority and\n\n\\Vas ain1'!d at preventing a landlord or tenant from impeding the Town Improvement or Town Planning Scheme framed in public interest.\n\nIt is because of this difference that the ground specified in cl. (hhh) is not subject to the G conditions and restrictions in s. 13(3A) and ss. 17A, 17B and 17C of the 1947-Act.\n\n[624 HJ\n\n(c) The statement of the Sub-Engineer that the Corporation would not expedite demolition without making alternative acco1nn1odation on which the\n\n~'Ppellant relied was made as far back as 1962, and had no relevance for the purposes of the present case. [625 C]\n\n6(a) Though the State Government had suspended certain regulations of the principal scheme, this suspension had not the same effect as \\\\:ithdra\\val or abandonment of the scheme, '''hich had not been done.\n\nMoreover, there had\n\n12-502 SCI/77\n\nA not been a total suspension of all the regulations.\n\nRegulations 36 an<l 38 which are material for the purposes of this case were allowed to continue.\n\n[625 D-E]\n\n(b) The proposal for variation of the principal scheme having not mate- \\.. rialised, it was not known what shape it \\vould assun1e.\n\nUntil it was actually\n\ncarried into effect, the variation had no legal consequence. [625 F]\n\nH. L. Mehra v. Union of India [1975] 1 SCR 138, 149 referred to.\n\n7. There was nothing to show that it was the local a.uthority and not the landlord who had the power to evict a tenant on the ground specified in s. 13 (1)\n\n(bhh) of the 1947-Act. Under s. 507 of the 1888-Act, the landlord could get an order against a tenant to allow him (the landlord) reasonable facilities to enter the leased premises in order to enable him to comply with the notice issued by the Municipal Commissioner.\n\n[625 HJ\n\nCIVIL APPELLATE JuruSDICT!ON : Civil Appeals Nos 915 and 916 of 1972.\n\nAppeals by Special Leave from the Judgment and Order dated the 20-3-1972 of the Bombay High Court in S.C.A. Nos. 1686 and 1687 of 1969.\n\nD. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant.\n\nF. S. Nariman, H. C. Tunara and K. l. John for Respondents.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-These two appeals by special leave. granted by this Court which are directed against the judgment and order dated 20th March, 1972 of the High Court of Bombay at Special Civil Applications Nos. 1686 and 1687 of 1969 shall be disposed of by this judgment.\n\nThe subject matter of dispute which has wended its way to this Court is a godown, being godown No. 2 built on Plot No. 37 bearing C.S. No. 130, Elphinstone Estate at Masjid Siding Road, Kurla Street, Bombay-9 which belongs to Port Trust, Bombay, Respondent No. 1 in both the above mentioned appeals viz.\n\nM/s Benett Coleman & Co. got the aforesaid plot No. 37 as also plot No. 36 on lease from the Port Trust, Bombay, on 1st August, 1933 on a yearly rent of Rs. 416.89.\n\nOn plot No. 37, the said respondent erected some godowns which alongwith certain other buildings that had grown up in a haphazard manner and could be described as slums were destroyed as a result of terrific explosions which occurred on April 14, 1944 in the Bombay Docks.\n\nBeing of the view that it was extremely desirable that rebuilding in the devastated area should be carried out on modern principles of town planning, the Bombay Municipal Corporation by its resolution No. 763 dated 23rd November, 1944, declared its intention to formulate a town planning scheme under the provisions of the Bombay Town Planning Act of 1915.\n\nThe Government of Bombay sanctioned the making of the Scheme by their resolution No. 5355133 dated 9th July, 1945 published in Official Gazette dated 12th July, 1945.\n\nAs the preparation of the scheme was likely to take time and it was necessary to restrain owners of buildings in the devastated area from reconstructing them in a haphazard manner which would conflict\n\n. ,\n\nVELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO. 607 (Jaswant Singh, !.) with the proposed scheme, the Governor of Bombay in exercise of the powers vested in him by virtue of the Proclamation dated 4th November, 1939, issued by him under section 93 of the Government of India Act, 1935 assuming to himself inter alia all the powers vested by or under the Government of India Act, 1935 in either chamber of the Provincial Legislature made an Act called the City of Bombay (Building Works Restriction) Act, 1944 (Bombay Act No. XVIII of 1944) (hereinafter referred to as 'the Bombay Act, 1944').\n\nSection 2 of this Act ordained that unless there is anything repugnant in the sub}ect or context, words and expressions used in the Act shall have the same meaning as in the Principal Act viz. the City of Bombay Municipal Act, 1888 (Bombay III 1888).\n\nSection 3 of this Act prohibited every person during the period of one year from the dat•e of the commencement of the Act to do any work of erecting, re-erecting, constructing, reconstructing, adding to or altering or repairing any building, wall or other structure or any part thereof situate in the area bounded on the South by the northern edge of Carnac Road and Carnac bridge, on the East by the western edge of the Frere Road, on the North by the southern edge of Elphinstone Road and Sandhurst Road and on the West by the eastern edge of Mohamadally Road, or laying out any private street in the. said area, except under the authority of a written permission granted by the Commissioner and in accordance with such conditions, if any, as the Commissioner might think fit to specify in the permission.\n\nThe proviso to the section authorised the Provincial Government to extend the aforesaid period of one year by means of notification published in the Official Gazette.\n\nIn exercise of the power conferred by the proviso, the Government of Bombay extended the period referred to in section 3 of the Act in respect of the restriction on building works without permission upto and inclusive of the 31st day of December, 1946, Section 8 of the Act provided that the benefit of any written permission granted under section 3 shall be annexed to and shall go with the ownership of the building, wall or other structure or private street, as the case may be, in respect of which it was granted and may be enforced by every person in whom that ownereship is for the time being vested.\n\nBy means of notification dated 3rd April, 1946, the Governor of Bombay in exercise of the powers conferred on him by sub-section\n\n(2) of section 93 of the Government of India Act, 1935 made a proclamation with the concurrence of \\he then Governor General revoking the aforesaid proclamation dated 4th November, 1939 as subsequently varied by the proclamations dated the 15th February, 1943 and 20th November, 1945.\n\nSection 93 of the Government of India Act, 1935 under which the proclamations dated the 4th November, 1939, 15th February, 1943, 20th November, 1945 and 3rd April, 1946 were made provided as follows :-\n\n\"93. Provisions in case of failure of constitutional machinery.\n\n(1) If at any time the Governor of a Province is satisfied H that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of this Act, he may by proclamation :\n\n. D\n\n(a) declare that his functions shall, to such extent as may\n\n be specified in the Proclamation be exercised by him in his discretion;\n\n(b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority, and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including proV'isions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority :\n\nProvided that nothing in this sub-section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts.\n\n(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.\n\n(2) A Proclamation under this section\n\n(a) shall be communicated forthwith to the Secretary of\n\nState and shall be laid by him before each House of Parliament; ·\n\n(b) unless it is a Proclamation revoking a previous Proclamation, shall cease to operate at the expiration of six months :-\n\nProvided that, if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of twelve months from the date on which under this subsection it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years.\n\n( 4) If the Governor, by a Proclamation under this section assumes to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall,. subject to the terms thereof, continue to have effect until! two years have elapsed from the date on which the Proclamation ceases to have effect unless sooner repealed or re-enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts, Provincial laws, or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law. ( 5) The functions of the Gnvernor under this section shall be exercised by him in his discretion and no Proclama-\n\n,_ fl'.\n\nVELJI LAKSHMI & CO. v. BENETT COLEMAN & CO. 609 (Jaswant Singh, J.) lion shall be made by a Governor under this section without the concurrence of the Governor General in his discretion\".\n\nOn 23rd September, 194 7, the Municipal Commissioner, Bombay granted written permission(Exh. 'A') to respondent No. 1 under section 3 of the Bombay Act, 1944, to raise temporary structure in the form of godowns on the aforesaid plot No. 37 at C.S. No. 130, Masii?\n\nSiding Road, Bombay subject inter alia to the following express conditions\n\n\"(a)\n\n(b)\n\n(c)\n\n(d)\n\nThe provisions of the Municipal Act and bye-laws made thereunder in force from time to time shall be complied with;\n\nThe Commissioner may at any time direct the owner of the said premises to pull down or remove the work hereby permitted or any portion thereof forthwith or within such time as he may prercribe.\n\nNo compensation shall be claimable by or payable to the owner.\n\nFurther if any such directions is not complied with by the owner, the same may be enforced or carried out 'in the manner provided by s. 489(1) (of the Municipal Act).\n\nNo compensation whatsoever, whether for damages loss or injury, shall be claimable by or payable to the owner or any other person in respect of any work carried out pursuant to this permit, if the building wall .comes within (i) the regular line. of any street, (ii) any improvement scheme that may be made under the provisions of the Municipal Act, (iii) any town planning scheme that may be made under Bombay Building Town Planning Act, 1915.\n\nThe conditions of this permit shall bind not only the owner of the said premises but also his heirs, executors, administrators\".\n\nBelow the permission so granted, it was endorsed on behalf of respondent No.I that the above conditions were acceptable to it.\n\nPursuant to the aforesaid permission, the respondent erected some godowns, one of which (godown No. 2) was leased out by it to Mis Velji Lakshmi & Co. the appellant in Appeal No. 915 of 1972 on 21st December, 1953 for a period of eleven months with effect from 1st February, 1954. The period of the lease in favour of the said appellant was extended from time to time on the original terms and conditions with the result that it continued to remain in occupation of the premises.\n\nOn 4th September, 1957, the Government of Bombay sanctioned what came to be called the Town Planning Bombay City No. 1 (Mandvi and Elphinstone Estates) Scheme under section 51 of the Bombay Town Planning Act, 1954 (Act XXVII of 1955) which had come into force on 1st August, 1957 and fixed 1st of December, 1957 as the date on which the Scheme would come into operation.\n\nA notification was published in the Official Gazette on 12th\n\nSeptember, 1957 declaring that the land on which the snit premises stood was affected by the said Scheme. It may be mentioned that nuder the aforesaid final scheme which became a part and parcel of the Bombay Town Planning Act, 1954 by virtue of section 51 (3) of the Act, certain special regulations were also made by the arbitrator to control development of the area included In the Scheme.\n\nOn 10th September, 1957, respondent No. 1 issued a notice to the said appellant calling upon it to quit, vacate and deliver quiet, vacant and peaceful possession to it of the said godown.\n\nThis notice was issued by the respondent on the grounds that the godown was required by it\n\nfor its bonafide use and occupation and the appellant had sublet and/ or transferred interest in the godown to someone else without the permission of the respondent and infringed the terms and conditions of the lease dated 21st of December, 1953, the period of which had also expired on 31st of August, 1957.\n\nOn 19th September, 1958, the Municipal Commissioner, Greater Bombay, issued the following notice (Exh. 'b') to respondent No. 1 :-\n\n\"The Bombay Municipal Corporation Bombay Town Planning Act, 1954 Town Planning Scheme Bombay City No. 1.\n\nNotice No. FE/221\n\nThe Times of India\n\nOwner : Original Plot No. 3 7 Elphinstone Estate Section.\n\nE WHEREAS the Government of Bombay has been pleased to sanction the above scheme under section 51 of the Bombay Town Planning Act, 1954 (XXVIl of 1955) on th11 4th September, 1957 and to fix the Ist December, 1957 as the dare on which the scheme shall come into operation AND WHEREAS the Notification relating to such sanction has been published under No. TPB-1054-M. Local Self. Govern- F ment and Public Health Department at page 2611 of Part I of the Bombay Government Gazette dated the 12th September, 1957 and since under section 53 of the said Act all\n\nrights and liabilities created by the said Scheme shall come into force from the Ist December. 1957 the rl\"te notified by Government in their above notification AND WHEREAS yon are aware that the land delineated in the Scheme Plans G (which may be inspected, if necessary at the office of the City Engineer.\n\nTown Planning Scheme No.1 Bombay Municipal Corporation) upon which yonr temporary structure stands, is affected by the said Scheme AND WHEREAS all the rights of the local Authority under the Bombay Town Planning Act, 1954 and the Bombay Town Planning Rules, 1955 are hereby expressly reserved AND WHEREAS you H are permitted under the City of Bombay (Building Works Restriction) Act, 1944, to erect a temporary structure on the terms and conditions mentioned in the said permit AND WHEREAS you agreed to pull down or remove the building or\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 611 (Jaswant Singh, J.) .work whenever required by me to do so, you are hereby called upon to pull down and remove the entire building or work in respect of which permission was granted under Permit No. 5211520/TP dated 23rd December, 1947 on or before\n\n30th October, 1958 failing which I shall cause the building or work to be pulled down or removed under section 489 of the Bombay Municipal Corporation Act and shall seek to recover the costs thereof as provided by that Municipal Act.\n\nPlease note that this notice is being served strictly without prejudice to the rights of the local authority under the Bombay Town Planning Act, 1954 and the Bombay Town Planning Rules, 1955 which rights are hereby expressly reserved.\n\nDated this 19th day of September, 1958.\n\nSd/-\n\nMunicipal Commissioner For Greater Bombay\".\n\nOn 22nd of February, 1960 respondent No. 1 issued another notice to Mis Velji Lakhamsi & Co. calling upon it to quit, vacate and deliver peaceful and vacant possession of the godown in its occupation within 24 hours from the date of the receipt of the notice.\n\nThis notice of ejectment was issued by the respondent to Mis Velji Lakhamsi & Co. on four grounds viz. (a) that it was in arears of rent from Ist November, 1959 at the rate of Rs. 2,500/- p.m., (b) that the premises were requ'red by the respondent for the immediate purpose of demolition ordered by the Municipal Commissioner for Greater Bombay, {c) that the appellant had sublet the premises to M/s Jamnadas Bhimji & Co., the appellant in Appeal No. 916 of 1972 against the provisions of Bombay Act LVII of 1947 and (d) that it was profiteering from such subleting.\n\nOn M/s Velji Lakhamsi & Co.'s failure to comply with respondent No. l's aforesaid notices calling upon it to vacate the premises, the latter brought a suit in the Court of Small Causes, Bombay on 18th April, 1960 for eviction of the former on the ground that the premises were required under section 13(1) (hhh) of the Bombay R!onts (Hotel and Lodging Houses Rates) Control Act, 1947 (hereinafter referred to as 'the Bombay Rents Control Act, 194 7') for the immediate purpose of demolition ordered by the Local Authority i.e. the Town Planning Authorities and the Bombay Municipal Corporation or other competent authority.\n\nAlthough it was also averred by respondent No. 1 in the plaint that it required the premises reasonably and bonafide for its own use and occupation, it abandoned this plea later on.\n\nThe said respondent also sought a decree against M/s Velji Lakhamsi & Co. for Rs. 2,500/- on account of arrears of rent for the month of March, 1960 as also for future mesne profits and costs. Mis Jamnadas Bhimji & Co. being in possession through M/s Velji Lakhamsi & Co. of a part of the premises as a sub-tenant, it was also impleaded by respondent No. 1 as a defendant to the, suit.\n\nThe suit was contested by the appellants inter alia on the grounds that respondent No. l's aforesaid notices to quit were not valid; that they were not bound by any undertaking given by respondent No. 1 to the Municipal Corporation; that the aforesaid notice (Exh. 'B') !given by the Municipal Corporation to respondent No. l did not subsist in view of the fact that the aforesaid scheme having been kept in abeyance, the Corporation did not propose to take immediate action in pursuance of the notice; that nothing was outstanding against M/s Velji Lakhamsi & Co. by way of arrears of rent and that Rs. 2,500/- p.m. claimed by respondent No. 1 was far in excess of the standard rent.\n\nOn the pleadings of the parties, the trial court framed the following issues :-\n\n\"!. Is' the tenancy of defendant No. 1 not properly terminated ? ·\n\n2. Do plaintiffs prnve that the premises are required for the immediate purpose of demolition ordered by the local authorities i.e. the Town Planning Authorities and the Municipality or other competent authorities ?\n\n3. To what decree, if any, are the plaintiffs entitled ?\"\n\nOn a consideration of the evidence adduced in the case, the trial court by its judgment dated 12th September, 1963 negatived the con.tentions raised by the appellants and decreed the suit and ordered the appellants to deliver possession of the suit premises to respondent No. l by 11th September,. 1964, holding !hat the tenancy of M/s Velji Lakhamsi & Co. had been validly terminated; that respondent No. 1 having been served with a notice of demolition by the local authority, it had fulfilled the requisite of the requirement of the premises for the immediate purpose of demolition as contemplated by section 13(1) (hhh) of the Bombay Rents Control Act, 1947; that while clause (hh) of section 13(1) of the Act relates to landlord's intention to demolish the building of his own volition and to erect a new building, its succeeding clause (hbh) relates to forcible demolition ordered by the local authority or by a competent authority whose powers an~ not hampered in any way by the provis; ons of the Rent Act; that if the local authority issued a notice that the premises are required for the purpose of d•emolition, it would not then be open either to the landlord or the tenant, whosoever may be in possession, to question. the authority trying to seek .. protection under the pro\\<isions of the Rent Act, and whenever such a notice was issued, the purpose would have to be taken to be immediate in spite of the fact that the actual implementation of the Scheme may take some time.\n\nThe Court further held that as the Scheme had been sanctioned, the Commissioner who gave the notice (Exh 'B') should be deemed to have given it as a competent authority under the Municipal Act.\n\nAggrieved by this decision, the appellants in both the appeals pre .. ferred separate appeals to the appellate Bench of the Court of Small Causes at Bombay which were allowed by a common Judgment dated 10th December, 1968 with the observations that the conditions which the Commissioner laid down in the written permission (Exh. 'A')\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 613 (!aswant Singh, !.) granted under section 3 of the Bombay Act, 1944 (made by the Go- A vemor under the proclamation dated 4th November, 1939) were not analogous to statutory mies and regulations or bye-laws; that the said Act which was of temporary character having lapsed on 3rd April, 1948, the commissioner ceased to have statutory authority to call upon respondent No. 1 to demolish the suit premises and thus to enforce the conditions mentioned in Exhibit 'A' which also lapsed on the expiry of the Act and as the notice (Exh. 'B') by the Municipal Commissioner B to respondent No. 1 was not under any statutory power exercisable by him but was given nnder the contract between him and respondent No. 1, it could not be called an order within the meaning of section 13(1) (hhh) of the Bombay Rents Control Act, 1947 and form the basis of a suit for eviction of the appellants from the snit premises.\n\nThe appellate Bench, however, held that there was no substance in the argument advanced on behalf of the appellants that the final C scheme having been kept in abeyance, the requirement of respondent No. 1 could not be called an immediate purpose of demolition as ordered by the local authority.\n\nThe appellate Bench further remarked that if the notice (Exh. 'B') could be construed as an order under section 13(1) (hhh) of the Bombay Rents Control Act, 1947,\n\nthe purpose for which respondent No. 1 called upon Mis Velji Lakhamsi & Co. to vacate the premises would be for the immediate D purpose of demolition as ordered by the local authority Respondent No. 1 thereupon took the matter to the High Court of Judicature at Bombay by means of the aforesaid petitions Nos. 1686 and 1687 of 1969 under Article 227 of the Constitution.\n\nBy its judgment dated 20th March, 1972, the High Court granted the petitions and set aside the judgment and decree passed by the appellate Bench of the Court of Small Causes and restored there of the trial Court holding that the E notice (Exh. 'B') given by the Municipal Commissioner on 19th September, 1958, was clearly an order of demolition by the competent authority; that if the Commissioner granted any rmission to build some work subject to certain conditions which he conld have imposed during the period in which the restrictions imposed by section 3 of the Bombay Act, 1944 were in force, it could not be legitimately contended that the person who contravened the conditions by which he F was bound could not be dealt with under sections 5 and 6 of the Act; that the mere fact that respondent no. 1 had agreed to the e-0nditions\n\nspecified in Exhibit 'A' did not in any way affect the legal consequences of the permission or the legal nature of the power exercised by the Commissioner under section 3 of the Act and that as long as the structures built under that rmission stood, the Commissioner could have called upon respondent No. 1 to remove the same; that the Com- G missioner was within his powers t6 issue the notice (Exh. 'B') dated 19th September, 1958, and that the trial Court was right in its view that the said notice was an order within the meaning of section 13 (I)\n\n(hhh) of the Bombay Rents Control Act, 1947.\n\nWith regard to the appellants' plea that the notice (Exh. 'B') had lost its efficacy as the town planning scheme had been held in abeyance, the High Court observed :- H\n\n\"It may be that the town planning scheme is in abeyance for the very fact that persons like Mr. Bhatt's clients are\n\nobstructing eviation proceedings filed by the landlords.\n\nIt may be that there are very many other reasons for its abeyance.\n\nThe question that the Court must consider under section 13(1)(hhh) is as to whether the landlord is entitled to recover possession as the premises are required for the imme.- diate purpose of demolition.\n\nIt may be that some landlords would like to postpone the removal of the structure.\n\nBut where a landlord bound by the notice, wants to comply with the notice issued to him by the Municipal Commissioner without delaying further in the matter and perhaps is eager to co-operate with authorities in enforcing the town planning scheme, it cannot be said that he does not require. the premises for the purpose of demolition\".\n\nIt is against the aforesaid judgment and order of the High Court that the present appeals are directed.\n\nAppearing in support of the appeals, Mr Patel and Mr. Bhatt, learned counsel for appellant in C. A. No. 915 of 1972 and C. A. No. 916 of 1972 respectively have reiterated almost all the contentions raised on behalf of their clients before the courts below regarding the validity and efficacy of the notice (Exh. 'B'). They have strenously urged that the ground specified in clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 1947, on which the suit out of which the present appeals have arisen was based could nO!I:\n\nbe called in aid by respondent No. 1 as the elements of that clauoo\n\nwere not at all satisfied.\n\nElaborating their contention, the learned counsel have canvassed the following points :-\n\n( 1) That the Bombay Act, 1944, being a temporary statute, not governed by the rule enunciated in section 7 of the Bombay General Clauses Act, having automatically disappeared or fapsed on. the expiry of two years commencing from 3rd April, 1946 on which the aforesaid proclamation dated 4th November, 1939 made under section 93(1) of the Government of India Act, 1935 ceased to have effect, the Commissioner was not competent to issue the notice (Exh. 'B') or take any step to enforce the conditions imposed by him under section 3 of the Act while granting written permission (Exh. 'A') to construct the premises in question.\n\nThey have, in snpport of their submission, invited our attention to the decisions of this Court in S. Krishnan and Ors. v. The SYite of Madras (1951 S.C.R. 621), The State of Uttar Pradesh v. Seth Jagamander Das and Ors. (A.I.R. 1954 S.C. 683) and Gopi Chand\n\nv. The Delhi Administration (1959) Supp 2 S.C.R. 87.\n\n(2) That the Municipal Commissioner, Bombay, having oeased to have a statutory existence on the expiry of\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 615 (Jaswant Singh, J.) the Bombay Act, 1944, the nottce, Exh. ('B') was a A\n\n(3)\n\nnullity.\n\nThat assuming without admitting, that the Municipal Commissioner did not become non est on the lapse of the Bombay Act, 1944 even then the notice is invalid and ineffective as s•ection 489 of the Bombay Municipal Corporation Act, 1883 under which it purports to have been issued envisages the issue of a notice only for giving effect to the requisition of order made under the. sections, sub-sections and clauses of the Act specified therein.\n\n( 4) That no statutory rule or bye-law having been made under the Bombay Act, 1944 and the notice (Exh. 'B') which was based upon the agreement contained in Exhibit 'A' between the Municipal Commissioner, Bombay, and respondent No. 1 and not on any statutory power exercisable by the Commissioner, did not constitute an order as contemplated by clause (hhh) of sub-section ( 1) of section 13 of the Bombay Rents Control Act, 1947.\n\n( 5) That assuming without admitting that the notice (Exh. 'B') amounted to an order, still clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 194 7 requires the Court to be satisfied before passing a decree for eviction of a tenant tha, t\n\nthe premises are required for the immediate purpose of demolition ordered by any local authority or other competent authority.\n\nThe words \"satisfied\" and \"immediate purpose of demolition\" occurring in the section are very strong words.\n\nThey denote that the urgency should be such as to leave no room for doubt that it can brook no delay.\n\nThe learned counsel have emphasized that in the instant case, the statement of P.W. Chitaman Krishnaji Limaya, the Sub- Engineer, Bombay Municipal Corporation, to the effect that the general policy of the Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the constructions are to be demolished unequivocally shows that the premises in question are not really required for the immediate purpose of demolition. ·\n\n( 6) That the final scheme having been suspended and varied, there was no subsisting order and the requirement of the premises by the respondent No. 1 could\n\nnot be said to be for the immediate purpose of demoli- H tion ordered by the local authority so as to permit the invocation of clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 1947.\n\n(7) That the notice. (Exb. 'B') is ineffective as under the Town Planning Act of 1915 or of 1956 or of 1966, it is local authority and not the landlord who has the power to evict the tenant.\n\nMr. Nariman, learned counsel for respondent No. 1 has stoutly combated and countered all the points raised on behalf of the. appellants.\n\nHe has referred us to various provisions of the City of Bombay Municipal Act, 1888, the Bombay Act, 1944, the Bombay Town Planning Acts, 1915, 1954 and 1966, the Bombay Rents Control Act, 1947 and a number of authoritative pronouncements which would be adverted to at appropriate places to show that the Bombay Act, 1944 is supplemental to the Bombay Municipal Act, 1888; that the rights acqufoed and liabilities incurred by virtue of Exhibit 'A' granted under the Bombay Act, 1944 were. of abiding nature aud did not lapse with the expiry of the said Act; that the Municipal Connnissiouer survived the lapse of the Bombay Act, 1944 and hacl plenary powers to enforce the conditions subject to which permission (Exh. 'A') was granted and that the notice (Exh. 'B') which had its genesis in the statutory provisions is perfectly valid and effective and constitutes an order within the meaning of clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act. 1947.\n\nWe shaH deal with the points raised on behalf of the appellants in the order in which they have been raised.\n\nRe : Point No. 1 :-This pivotal point canvassed by the learned counsel for the appellants though it looks attractive at first sight cannot stand a close scrutiny. It is true that the offences committed against a temporary statute have, as a general rule, to be prosecuted and punished before the statute expires and in the absence of a special provision to the contrary, the criminal proceedings which are being taken against a person under the temporary statute will ipso facto terminate as soon as the statute expires. But the analogy of criminal proceedings or physical constraints cannot, in our opinion, be extended to rights and liabilities of the kind with which we are concerned here for it is equally well settled that transactions which are concluded and completed under the temporary statute while the same was in force often endure and continue in being despite the expiry of the statute and so do t11e rights or obligations acquired or incurred therennder depending upon the provisions of the statute and nature and character of the rights and liabilities. The following observations at pages 409- 410 in Craies on Statute Law (Seventh Edition) are worth quoting in this connection :- -\n\n\"The difference between the effect of the expiration of a temporary Act and the repeal of a perpetual Act is pointed out by Parke B. in Steavenson v. O/.iver (1841) 8 M. & W.\n\nH 234, 240, 241.\n\nThere is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed, but with respect\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 617 (Jaswant Singh, !.)\n\nt0 the former, the extent of the restrictions imposed, and the A duration of the provisions, are matters of construction\".\n\nIt will a.Jso be advantageous in this connection to refer to Para 720 at page 475, Volume 36 of Halsbury's Laws of England (Third Edition) :- '\n\n\"720. Effect of expiry a matter of construction.\n\nThe effect of the expiry of a temporary statute is in each case a B matter of construction.\n\nThere is no presumption that a statute is to be treated on expiry as dead for all purposes.\"\n\nWe are also fortified in our view by the decision of this Court iu State of Orissa v. Bhupendra Kumar Bose (1962] 2 Supp. S.C.R. 380,\n\nwhere while dealing with the question whether the rights created by Orissa Ordinance No. 1 of 1959 promulgated by the Governor valida- C ting the election to the Cuttack Municipality (which had earlier been declared to be invalid by the High Court) and curing the invalidity of the electoral rolls in respect of other Municipalities were of lasting character and endured after the expiry of the ordinance, Gajendragadkar, J. (as he then was) speaking for the Court observed:\n\n\"In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the Act expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate.\n\nBut is that an inflexible and universal rule'? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right and obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not..\" ..\n\nIn considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule.\n\nIf the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by whic)l it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter ........ In our opinion having regard to the object of the Ordinance and to the dghts created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived.\n\nThe rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance.\n\nThe OrdinancB has in terms\n\nE ,\n\nprovided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires\". (underlining is ours).\n\nIn arriving at his conclusion, the learned Judge relied on Steavenson v. Oliver (151 E.R. 1024, 1026-1027 and Warren v. Windle (180:i) 3 East 205, 211-212 : 102 E.R. (K.B.)\n\n578. Steavanson v.\n\nOliver (supra) related to 6th Geo. 4, c 133, section 4 whereof provided that every person who held a commission or warrant as surgeon or assistant surgeon in His Majesty's Navy or Army, should be entitled to practise as an apothecary without having passed the usual examination. The statute was temporary and it expired on 1st August, 1826. It was urged in that case that a person who was entitled to practise as an apothecary under the Act would lose his right after 1st August, 1826, because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it.\n\nThe Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute, the learned Judges composing the • Bench observed :\n\n\"Lord Abinger, C. B.-We are of opinion that the replication is good, and there must therefore be judgment for the plaintiff. It is by no means a consequence of an act of Parliament's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an act of Parlament, would not a person who had been guilty of the offence upon which the legislature had imposed tire penalty while the act was in force, be liable to pay it after its expiration.\n\nThe case of a right acquired under the act ls stronger. The 6 Geo. 4, c. 133, provides, that parties who hold such warrants shall be entitled to practise as apothecaries; and we cannot engraft on the statute a new qualification, limiting that enactment.\n\nParke, B.-Then comes the question whether the privilege of practising given by the stat. 6 Geo. 4, referred to in the replication is one which continues notwithstanding the expiration of that statute.\n\nThat depends on the construction of the temporary enactment.\n\nThere is a difference betwee.R temporary statutes and statutes which are repealed, the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 619 (Jaswant Singh, J.) with rest to the former, the extent of the restrictions imposed, and the duration of I.he provisions . are matters of construction.\n\nWe must therefore look at this act, and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege. It seems to me that the meaning of the legislature was, that all assistant surgeons,, who were such before the !st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the I st of August, 1826.\n\nAlso that part of the section relating to the proof by the production of a certificate, although the language of the legislature became perfectly illusory, inasmuch as it left the party to the same mode of proof as before, still the intention was, that no other proof should be required than the production of the certificate; although by using the words, \"that the proof should be by the production of a certificate under the seal of the corporate body, \"the mode of proof was left as it was before. With respect to the vested interests of those persons who held warrants as assistant-surgeons in the navy or army, the intention was, that all who were such, either at the time of the passing of the act, or at any time before the I st of August, 1826, should be in the same position, with respect to their right to practise as apothecaries, as if they had been in actua1 practice as such before the !st of .August, 1815. I am the more disposed to think thus, on the ground that the penalties given by this act Would probably survive its expiration, and that persons who violated its provisions might afterwards be punished in the way pointed out. If it were not so, any person who had violated those provisions within six months prior to the expiration of the act, would not be liable to punishment at all. It is, however, necessary to decide that point; it is enough to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of August, 1826 retained that qualification not withstanding the expiration of the statute.\n\n Alderson, B.-I am of the same opinion. With respect !O the difference between the 5th and !st of August, supposmg the latter to be the correct date, still the objection would not be good, for. the alteration effected in this respect by 6th qeo, 4, c. 133, 1s one of a peanent nature, and the objection could only be rendered valid by holding that statute as one in all respects of a temporary character. But I apprehend that, on the true construction of these acts of Parliament those parts of the 6th Geo. 4, which explain the provision~ of the 55 G~. 3 are. in their own nature permanent and effectual, notw1thstandmg the final clause, which makes the act temporary.\n\nIndependently, however, of this consideration, I agree in the opinion already expressed by any Brother Parke. ,\n\nSUPREME COURT RE~ORTS (1977] 3 _s.c.R.\n\nRolfe, B.-The only important question in this case is the last. The 6 Geo. 4, when it says that the act shall continue in force till the 1st of August next, does not mean that what is therein enacted should be of no force after that day, if it were so, the act might be productive of the greatest in justice. . . . ... I think that although in one sense this act is not in force, yet it is still permanent as to the rights acquired under it.\"\n\nIn Warren v. Windle (supra where the statute, 26 Geo. 3, c. 108 professed to repeal the statute of 19 Geo. 2, c. 35 absoiutely though its own provisions, which it substituted in place of it, were to be only temporary, Lord Ellen borough, C.J. held that \"a law though temporary in some of its provisions, may have a permanent operation in other respects\".\n\nThe foregoing discussion makes it abundantly clear that the question as to whether the restrictions, rights and obligations flowing from the provisions of a temporary statute which come to an automatic end by effiux of time expire with the expiry of the statute or whether they endure and survive after the expiry of the statute depends upon the construction of the statute and the nature and character of the rights, restrictions and obligations and no rigid or inflexible rule can be laid down in this behalf. We must, therefore, scrutinise the provisions of the temporary statute in question viz. the Bombay Act, 1944 which has long since expired and the permit (Exh. 'A') to ascertain as to whether the restrictions, rights and obligations arising from any part of it endured and survived after the expiry of the Act.\n\nThe Act, as evident from its preamble_ aud Statement of Objects and Reasons, was designed to prevent the growth of buildihgs in a haphazard fashion which might conflict with the contemplated scheme of systematic town planning in the aforesaid area devastated by explosions.\n\nSection 3 of the Act which related to the imposition of restrictions on building works in the said area including the plot in question authorised the Municipal Commissioner to impose such conditions as he might think fit to specify while granting permission for construction of a building or a structure.\n\nIn the instant case, the Municipal Commissioner gave permission to the respondents to build on the plot in question subject to the express condition th.at the stmctures would be pulled down by them whenever required to do so to give effect to any improvement scheme that might be made under the Bombay Building Town Planning Act.\n\nThe rights and obligations flowing from the conditions subject to which 11ie permission to build was granted to respondent No. 1 were annexed to the ownership of the building for all time to come and were not limited to the duration of the Bombay Act, 1944. Accordingly, we are satisfied that the provisions of sections 3 and 8 of the Bombay Act, 1944 were permanent as to the restrictions, rights and obligations imposed, acquired and incurred thereunder.\n\nA fortiori, the rights acquired by the Municipal Commissioner, Greater Bombay, by virtue of the express conditions imposed by him while granting the permit (Exh. 'A') were not subject to a time limit and did not lapse with the expiry of the Act.\n\nVELJI LAKSHMI & CO. v. BENETT COLEMAN & CO. 621 (Jaswant Singh, J.) All the aforesaid three decisions cited by the learned counsel for~ A the apellants are clearly distinguishable.\n\nIn the State of Uttar Pfadesh v. Seth Jagamander Das (supra), this Conrt while upholding: the order of the High Court of Judicature at Allahabad quashing the proceedings taken against the respondent under section 120B, Indiin Penal Code, read with Rnles 81 (4) and 121, of the Defence of India, Rules for the alleged violation of clause (2) of the Non-Ferrous Metals Control Order (1942) held that prosecution could not be B commenced for contravention of the Non-Ferrous Metals Control Order (1942) after the expiry of the Defence of India Act under which it had been made because that would amount to the enforcement of a dead Act.\n\nGopi Chand v. The Delhi Administration (supra) was also a criminal case where this Court set aside the conviction and sentence of the appellant in three cases for offences ordinarily triable under the warrant case procedure but which were tried according to the procedure prescribed for trial of summons cases by Chapter XX of the Code of Criminal Procedure. The conviction and sentence were quashed on the ground that the summons case procedure which had been adopted for trial of the appellant according to section 3 6 (I) of the East Punjab Public Safety Act, 1949 could not be continued after the expiry of the Act in the absence of a saving clause similar to section 6 of the General• Clauses Act.\n\nS. Krishnan & Ors. v. The State of Madras (supra) related to detention under the Preventive Detention (Amendment) Act of 1951 and is not germane to the point under consideration.\n\nConsquently we have no hesitation in holding that there is no 'T merit in the appellant's plea that Municipal Commissioner, Greater Bombay was not competent after the expiry of the Bombay Act, 1944 to issue the notice (Exh. 'B') to respondent No. 1 calling upon it to demolish the premises in question.\n\nRe. Point No. 2 :-This plea is also misconceived. The Bombay Act, 1944 was indisputably supplemental to the Bombay Municipal Act, 1888 as the latter Act has been clearly referred to in sections 2 and 6 of the former Act as \"the Principal Act\". Though the former Act was temporary, the Municipal Commissioner alluded to therein did not cease to exist with the expiry of the Act. Being a creature of the Bombay Municipal Corporation Act, 1888, and a functionary who is required to be appointed from time to time in terms of section 54 of the Act, his life did not de!lend upon the life of the Bombay Act, 1944. The submission made by the learned counsel for the apellants is, therefore, repelled.\n\nRe. Point No. 3 :-There is no substance in this point as well.\n\nA careful perusal of the notice (Exh. 'B') would show that though it held out a threat to respondent No. 1 that in case it failed to comply with the direction regarding the demolition of the entire structure in question, the Municipal Commissioner would cause the structure to be pulled down or removed under section 489 of the\n\nBombay Municipal Act, it was really issued under the Special Regulation No. 36 which, as stated earlier, became a part and parcel of the Bombay Town Planning Act, 1954, by virtue of section 51(3) of the Act.\n\nThe notice ex facie shows that it was being issued under the Bombay Town Planning Act, 1954. It expressly referred to the aforementioned scheme viz. the Town Planning Bomba)' City B No. 1 (Elphinstone Estate) Scheme, the sanction of the Scheme by . the Government of Bombay under section 51 of the Bombay Town Planning Act, 1954 (Act XXVII of 1955), the coming into operation of tile Scheme with effect from lst of December, 1957, the publication of the sanction of the Scheme in the Bombay Government Gazette and intimated to respondent No. 1 that the land upon which its prec mises in question stood was affected by the Scheme.\n\nWe have, c\n\ntherefore, no doubt in our mind that the notice was issued under the\n\nSpecial Regulation No. 36.\n\nThe fact that reference to section 489 of the Municipal Act, 1888 was erroneously or incorrectly made it1 the notice is immaterial as it is well settled that if the exercise of a power can be traced to a legitimate source, the fact that it was purported to have been exercised under a different power does not vitiate the exercise of the power in question. A reference in this connection may usefully be made to the decisions of this Court in Afzal Ullah v.\n\nThe State of Uttar Pradesh('); J. K. Steel Ltd. v. Union of India(2); N. B. Sanjana v. Elphinston Mill(') and H. L. Mehra v. Union of India(•). We feel tempted at this juncture to reproduce the following observation made by this Court in N. B. Sanjana v. Elphinston Mill\n\n(supra) :-\n\n\"Dr. Syed Mohammad is, no doubt, well founded in bis contention that if the appellants have power to issue notice either under rule lOA or rule 9(2) (of the Central Excise Rules, 1944), the fact that the notice refers specifically to a particular rule, which may not be applicable, will not make the notice invalid on that ground as has been held by this Court in J. K. Steel Ltd. v. Union of India (supra).\n\nTesting the notice (Exh. 'B') from the point of view of the existence of the power of the Commissioner to issue it, we are convinced that be enjoyed the power in fu!J measure and the challenge to the validity of the notice on the ground of lack of power in the Commissioner is wholly unjustified.\n\nRe. Point No. 4:-Tbis point is also devoid of substance.\n\nThough no statutory rule or bye-law appears to have been made under the Bombay Act, 1944, the Municipal Commissioner had plenary power under section 3 of the Act to authorise by means of a written permission the construction of any building or structure in the area described in the Schedule to the Act subject to such conditions, if any, as he might have thought fit to specify in the permission. The permission (Exh. 'A') having been granted subject to the express condition that the plaintiff shall pull down or. remove the temporary\n\n(!) [1964] 4 S.C.R. 991, 1000.\n\n\n(4) [1975] I SC.R. 138, 149.\n\nVELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. 623 (Jaswant Singh, !.) structure in question whenever called upon to do so and the same hav- A ing been -annexed to and made to go with the ownership of the structure in respect whereof, it was granted by virtue of section 8 of the Bombay Act, 1944, it could be enforced by the Municieal Commissioner under Regulations Nos. 36 and 38 of the Special Regulations made by the Arbitrator which, as already stated, became a part and parcel of the Bombay Town Planning Act, 1954 by virtue of section 51(3) of the Act as also under section 55(1)(a) read B with Rule 28 made under section 87 of the Act.\n\nThe Special Regulations Nos. 36 and 38 as well as section 55 of the Bombay Town Planning Act, 1954 and Rule 28 made under section 87 of the Act are reproduced below for facility of reference :-\n\n\"Regulation N'o. 36 :-All temporary structures within the boundaries of a final plot i.e. those which have been permitted to be constructed by the Municipal Corporation under section 15 of the Bombay T.P. Act subject to a condition or under an agreement whereby such structures have to be removed by the owners concerned at their cosf whenever called upon to do so by the Municipal Corporation, shall be so removed within a period of two years from the date the final scheme comes into force.\n\nProvided, however, that this limit may be extended by the Municipal Commissioner in cases where genuine hardship may be caused to the owners concerned in complying with this regulation for reasons beyond their control and provided further that such an extension. shall not be granted save in exceptional cases.\n\nRegulation No. 38 :-Any person contravening any of the aforesaid regulations or any of the provisions of the scheme, shall, on being convicted for such contravention, be liable to fine which may extend to Rs. 1,000/- (One thou sand) and in the case of continuing contravention of the aforesaid provisions, be shall be liable to an additional fine which may extend to Rs. 10/- (Ten) for each day during which such contravention continues after conviction for the first such contravention.\n\nSection 55 of the Bombay Town Planning Act, 1954-\n\n( 1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme-\n\n(a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with;\n\n(b) * * • •\n\n(2)Any expenses incurred by the local anthority under this section may be recovered from the persons in default\n\nor from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act.\n\n( 3) If any question arises as to whether any building or work contravenes a town-planning scheme,. . . . . . . . it shall be referred to the State Government or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be, shall be final and. conclusive and binding on all persons.\n\nRule 38 made under section 87 of the Bombay Town Planning Act, 1954-Before removing, pulling down or altering any building or other work or executing any work under subsection ( 1) of section 55, a local authority shall serve a notice on the owner or occupier of the building or work, as the case may be, calling upon him to remove, pull down or alter such building or work or execute such work within such reasonable time as may be specified in the nqtice and intimating him the intention of the local authority to do so on failure to comply with the requirement of the notice.\"\n\nThe conclusion is, therefore, inescapable that the direction in the notice (Exh. 'B') for demolition of the premises in question which clearly had its genesis in the aforesaid statutory provisions did constitute an order within the meaning of clause (hhh) of sub-section ( 1) of section 13 of the Bombay Rents Control Act, 1947 and the appellants' plea that no statutory rule or bye-law having been made under the Bombay Act, 1944 and the notice (Exh. 'B') not being based 01'1. any statutory power exercisable by the Commissioner did Mt constitute such an order is wholly untenable.\n\nRe : Point No. 5 :-In face of the findings of the Rent Courts i.e. Court of Small Causes, Bombay as also of the appellate Bench of that Court which are courts of special and exclusive jurisdiction that the permises in question are required for the immediate purpose of demolition, we think it is not open to the appellants to raise the point before us.\n\nThat apart what is sought to be urged before us cannot be sustained in view of the fact that the ground specified in clause ( hhh) of sub-section (1) of section l3 of the Bombay Rents Control Act, 194 7 does not stand on the same footing as the ground. specified in its preceding clause viz. clause (hh). Whereas clause (hh) which appears to have been enacted with a view to provide better and more , housing accommodation in the interest of the public re_lates to a landlord's bonafide intention to demolish the building of his own volition and to erect a new building in its place, clause (hhh) which was inserted by Bombay Act 61 of 1953 inter alia to prevent a landlord or a tenant from impeding the town improvement or town planning scheme which is presumed to be in public interest relates to compulsory demolition ordered by a local or competent authority. It is because of this difference that the ground specified in clause (hhh) is not subject to the conditions and restrictions embodied in sub-section (3A) of sec-\n\nVELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO. 625 (Jaswant Singh, !.) tion 13 and sections 17 A, 17B and 17C of the Bombay Rents Control A Act, 1947.\n\nIt is sufficient to satisfy the requirement of the ground specified in this clause that the order of demolition is issued by the local or competent authority in exercise of the powers vested in it and the order discloses that in the opinion of the local or competent authority, the premises are required for the immediate purpose of demolition.\n\nThe statement of P.W. Chitaman Krishnaji Limaya, Sub-Engineer, B Bombay Municipal Corporation made nearly fourteen years ago to the effect that \"the general policy of Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the contructions are to be demolished\" on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the instrnctions on which the statement was based related to the period between Ist July, 1962 and 31st December, C 1962.\n\nWe are, therefore, of opinion that there is no force in point No. 5.\n\nRe : Point No. 6 :-This point needs consideration under two heads viz. suspension of the Scheme and variation of the Scheme.\n\nSuspension of the Scheme : It is no doubt true that the request of the Corporation, the State Government has, by its notification No.\n\nD TPB 1073/33184 published in the Government Gazette dated 25th Juiy, 1974, wspended certain regulations of the principal Scheme but this suspension has not the same effect as withdrawal or abandonment of the scheme which admittedly has not been done.\n\nWhat is more sigmficant is that there has not been a total or wholesale suspension of all the regulations by virtue of the aforesaid notification.\n\nOn the contrary, , the Government has been careful enough to allow regulations E Nos 36 and 38 besides some others to continue.\n\nThus the regulations which are material for our purpose having been specifically saved, the notice (Exh 'B') is immune from the impact of the aforesaid notification.\n\nVariation of the Scheme : Though there is a proposal for variation of the Principal Scheme, the same has not so far materialized. As F to what shape the variation will ultimately assume is purely a matter of guess work.\n\nAs such, until it is actually carried into effect, the proposed variation is of no legal consequence and the case has to be decided keeping in view its own facts and circumstances and the relevant law as at present in existence. In Willow Wren Canal Carrying Co. Ltd. v. British Transport Commission('), it was held that the plaintiffs were entitled to have their action tried according to law as G in force and the court would not take into account the possible effect of a bill before the Parliament which may never become a law or if passed into law may contain provisions which ultimately do not effect the rights of the parties before the Court.\n\nRe : Point No. 7 : -This point is also devoid of merit. Nothing has en brought to our notice on behalf of the appellants to show that it is the local authority and not the landlord who has the power to H evict the tenant on the ground specified in clause (hhh) of sub-section\n\n0) [1956] I All E.R. 567.\n\n(1) of section 13 of the Bombay Rents Control Act, 1947.\n\nMoreover the submission made on behalf of the appellants conveniently overlooks the provisions of section 507 of the Bombay Municipal Corporation Act, 1888 whereunder the landlord can get an order against the tenan; t to allow him (the landlord) reasonable facilities to enter\n\nthe leased premises in order to enable him to comply with the notice issued by the Municipal Commissioner.\n\nFor the foregoing reasons, there is no merit in any of the points raised by the appellants.\n\nConsequently, the appeals fail and are hereby dismissed bnt in view of the circumstances of the case without any order as to costs.\n\nRespondent No. 1 shall not, however, as agreed to on its behalf, evict tl1e appellants till the. end of the year, 1977 A.D. unless it is required by the Municipal Commissioner at any time before that date to pull down the premises in question in implementation of the scheme.\n\nP.B.R.\n\nAppeals dismissed.", "total_entities": 265, "entities": [{"text": "VELJI LAKSHMI & CO. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "VELJI LAKSHMI & CO. ETC", "offset_not_found": false}}, {"text": "BENEIT COLEMAN & CO. ETC", "label": "RESPONDENT", "start_char": 29, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "BENEIT COLEMAN & CO. ETC", "offset_not_found": false}}, {"text": "April 14, 1977", "label": "DATE", "start_char": 56, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "April 14, 1977\n\n[R. S. SARKAR!A AND JASWANT SINGH, JJ.J\n\nBornbay Municipal Corporation Act, 1888-Respondents given permission to raise teniporary structures on land on condition tl1at they should be pulled down when called upon to do so-Pren1ises let out to appellant-Municipal Comn1issioner directed."}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 92, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH, JJ", "offset_not_found": false}}, {"text": "Bornbay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 113, "end_char": 152, "source": "regex", "metadata": {}}, {"text": "Act- Jj survive after expiry of the Act", "label": "STATUTE", "start_char": 549, "end_char": 588, "source": "regex", "metadata": {}}, {"text": "Bombay Port Trust", "label": "ORG", "start_char": 679, "end_char": 696, "source": "ner", "metadata": {"in_sentence": "1 constructed some godowns on the plot of land leased out to them by the Bombay Port Trust in 1933."}}, {"text": "Bombity Municipal Corporation", "label": "ORG", "start_char": 894, "end_char": 923, "source": "ner", "metadata": {"in_sentence": "In order that the building construction v.1ork in the area might be carried out on modern lines, the Bombity Municipal Corporation formulated a scheme under the provisions of the Bombay ."}}, {"text": "Town Planning Act, 1915", "label": "STATUTE", "start_char": 981, "end_char": 1004, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 1126, "end_char": 1132, "source": "ner", "metadata": {"in_sentence": "The Governor of Bombay by a proclamation issued under s. 93 of the Government of India Act."}}, {"text": "s. 93", "label": "PROVISION", "start_char": 1164, "end_char": 1169, "source": "regex", "metadata": {"linked_statute_text": "Town Planning Act, 1915", "statute": "Town Planning Act, 1915"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 1284, "end_char": 1293, "source": "regex", "metadata": {"linked_statute_text": "Town Planning Act, 1915", "statute": "Town Planning Act, 1915"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 1655, "end_char": 1664, "source": "regex", "metadata": {"linked_statute_text": "Town Planning Act, 1915", "statute": "Town Planning Act, 1915"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1742, "end_char": 1746, "source": "regex", "metadata": {"linked_statute_text": "Town Planning Act, 1915", "statute": "Town Planning Act, 1915"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2033, "end_char": 2037, "source": "regex", "metadata": {"statute": null}}, {"text": "TI>wn Pianning Bombay City", "label": "ORG", "start_char": 2461, "end_char": 2487, "source": "ner", "metadata": {"in_sentence": "In that year the State Government sanctioned a scheme called the TI>wn Pianning Bombay City No."}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 2511, "end_char": 2541, "source": "regex", "metadata": {}}, {"text": "December l, 1957", "label": "DATE", "start_char": 2580, "end_char": 2596, "source": "ner", "metadata": {"in_sentence": "I scheme under the Bombay Town Planning Act, 1954 and the scheme came into operation on December l, 1957."}}, {"text": "final scheme G became a part and parcel of the Bombay Town Planning Act 1954", "label": "STATUTE", "start_char": 2603, "end_char": 2679, "source": "regex", "metadata": {}}, {"text": "September 19, 1953", "label": "DATE", "start_char": 2822, "end_char": 2840, "source": "ner", "metadata": {"in_sentence": "On September 19, 1953, the Municipal Cdrnmissioner, Greater Bombay, issued a notice (Exhibit B) to respondent No."}}, {"text": "Municipal Cdrnmissioner, Greater Bombay", "label": "ORG", "start_char": 2846, "end_char": 2885, "source": "ner", "metadata": {"in_sentence": "On September 19, 1953, the Municipal Cdrnmissioner, Greater Bombay, issued a notice (Exhibit B) to respondent No."}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 3335, "end_char": 3343, "source": "regex", "metadata": {"linked_statute_text": "The final scheme G became a part and parcel of the Bombay Town Planning Act 1954", "statute": "The final scheme G became a part and parcel of the Bombay Town Planning Act 1954"}}, {"text": "Control Act, 1947", "label": "STATUTE", "start_char": 3403, "end_char": 3420, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4017, "end_char": 4021, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1947", "statute": "Control Act, 1947"}}, {"text": "Municipal Commissioner bavin.g ceased to have statutory existence on the expiry of the 1944-Act Exhibit B-notice", "label": "RESPONDENT", "start_char": 4095, "end_char": 4207, "source": "ner", "metadata": {"in_sentence": "(ii) The Municipal Commissioner bavin.g ceased to have statutory existence on the expiry of the 1944-Act Exhibit B-notice was a nullity, (iii) Eveh assuming that the Municipal Comissioner did not become non est on the expiry of the 1944Act, the notice was ineffective beca'!-lse s. 489 of the Bombay Municipal Corporation Act, 1888 envisage:s the issue of a notice only for giving effect to the requisition or order 1nade under the sectlon. ("}}, {"text": "s. 489", "label": "PROVISION", "start_char": 4365, "end_char": 4371, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1947", "statute": "Control Act, 1947"}}, {"text": "Bombay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 4379, "end_char": 4417, "source": "regex", "metadata": {}}, {"text": "s. 13(1 )(hhh)", "label": "PROVISION", "start_char": 4658, "end_char": 4672, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 4721, "end_char": 4729, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 5108, "end_char": 5113, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Corporation Act, 1888", "statute": "the Bombay Municipal Corporation Act, 1888"}}, {"text": "ss. 3 and 8", "label": "PROVISION", "start_char": 5500, "end_char": 5511, "source": "regex", "metadata": {"statute": null}}, {"text": "City of Bombay", "label": "ORG", "start_char": 6588, "end_char": 6602, "source": "ner", "metadata": {"in_sentence": "[616 F-G]\n\nIn the instant case, the City of Bombay (Building Works Restriction) Act 1944, as evident from its preamble and statement of Objects a11d Reasons was designed to prevent the growth of buildings in a haphazard fashion \\\\hich might conflict with the contemplated scheme of systematic town planning in the area devastated by explosion."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6897, "end_char": 6906, "source": "regex", "metadata": {"statute": null}}, {"text": "Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888", "label": "STATUTE", "start_char": 8352, "end_char": 8420, "source": "regex", "metadata": {}}, {"text": "s. 54", "label": "PROVISION", "start_char": 8530, "end_char": 8535, "source": "regex", "metadata": {"linked_statute_text": "Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888", "statute": "Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888"}}, {"text": "s. 489", "label": "PROVISION", "start_char": 8807, "end_char": 8813, "source": "regex", "metadata": {"linked_statute_text": "Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888", "statute": "Act was supplemental to B the Bombay Municipal Corporaticn Act, 1888"}}, {"text": "Town Planning Act 1954", "label": "STATUTE", "start_char": 8921, "end_char": 8943, "source": "regex", "metadata": {}}, {"text": "s. 51", "label": "PROVISION", "start_char": 8957, "end_char": 8962, "source": "regex", "metadata": {"linked_statute_text": "the Town Planning Act 1954", "statute": "the Town Planning Act 1954"}}, {"text": "notice showed that it was being issued under the Town Planning Act, 1954", "label": "STATUTE", "start_char": 8984, "end_char": 9056, "source": "regex", "metadata": {}}, {"text": "s. 489", "label": "PROVISION", "start_char": 9172, "end_char": 9178, "source": "regex", "metadata": {"linked_statute_text": "The notice showed that it was being issued under the Town Planning Act, 1954", "statute": "The notice showed that it was being issued under the Town Planning Act, 1954"}}, {"text": "(1964] 4 SCR 991", "label": "CASE_CITATION", "start_char": 9518, "end_char": 9534, "source": "regex", "metadata": {}}, {"text": "[1969] 2 SCR 481", "label": "CASE_CITATION", "start_char": 9577, "end_char": 9593, "source": "regex", "metadata": {}}, {"text": "[1971] 3 SCR 506", "label": "CASE_CITATION", "start_char": 9633, "end_char": 9649, "source": "regex", "metadata": {}}, {"text": "s. 13(1)(hhh)", "label": "PROVISION", "start_char": 9893, "end_char": 9906, "source": "regex", "metadata": {"linked_statute_text": "The notice showed that it was being issued under the Town Planning Act, 1954", "statute": "The notice showed that it was being issued under the Town Planning Act, 1954"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9978, "end_char": 9982, "source": "regex", "metadata": {"linked_statute_text": "The notice showed that it was being issued under the Town Planning Act, 1954", "statute": "The notice showed that it was being issued under the Town Planning Act, 1954"}}, {"text": "s. 13(1)", "label": "PROVISION", "start_char": 10666, "end_char": 10674, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(3A)", "label": "PROVISION", "start_char": 11185, "end_char": 11194, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 17A, 17B and 17C", "label": "PROVISION", "start_char": 11199, "end_char": 11219, "source": "regex", "metadata": {"statute": null}}, {"text": "[1975] 1 SCR 138", "label": "CASE_CITATION", "start_char": 12174, "end_char": 12190, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 12356, "end_char": 12361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 507", "label": "PROVISION", "start_char": 12396, "end_char": 12402, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JuruSDICT!ON", "label": "PETITIONER", "start_char": 12645, "end_char": 12673, "source": "ner", "metadata": {"in_sentence": "[625 HJ\n\nCIVIL APPELLATE JuruSDICT!ON : Civil Appeals Nos 915 and 916 of 1972."}}, {"text": "20-3-1972", "label": "DATE", "start_char": 12779, "end_char": 12788, "source": "ner", "metadata": {"in_sentence": "Appeals by Special Leave from the Judgment and Order dated the 20-3-1972 of the Bombay High Court in S.C.A. Nos."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 12796, "end_char": 12813, "source": "ner", "metadata": {"in_sentence": "Appeals by Special Leave from the Judgment and Order dated the 20-3-1972 of the Bombay High Court in S.C.A. Nos."}}, {"text": "D. V. Patel", "label": "OTHER_PERSON", "start_char": 12853, "end_char": 12864, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant."}}, {"text": "R. P. Bhatt", "label": "OTHER_PERSON", "start_char": 12877, "end_char": 12888, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant."}}, {"text": "M. P. Sabia", "label": "OTHER_PERSON", "start_char": 12899, "end_char": 12910, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant."}}, {"text": "P. B.\n\nAgarwal", "label": "OTHER_PERSON", "start_char": 12912, "end_char": 12926, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant."}}, {"text": "B. R. Agarwala", "label": "OTHER_PERSON", "start_char": 12931, "end_char": 12945, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CA 915) R. P. Bhatt (CA 916), M. P. Sabia, P. B.\n\nAgarwal and B. R. Agarwala for the Appellant."}}, {"text": "F. S. Nariman", "label": "OTHER_PERSON", "start_char": 12966, "end_char": 12979, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, H. C. Tunara and K. l. John for Respondents."}}, {"text": "H. C. Tunara", "label": "OTHER_PERSON", "start_char": 12981, "end_char": 12993, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, H. C. Tunara and K. l. John for Respondents."}}, {"text": "K. l. John", "label": "OTHER_PERSON", "start_char": 12998, "end_char": 13008, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, H. C. Tunara and K. l. John for Respondents."}}, {"text": "Benett Coleman & Co.", "label": "RESPONDENT", "start_char": 13654, "end_char": 13674, "source": "ner", "metadata": {"in_sentence": "M/s Benett Coleman & Co. got the aforesaid plot No.", "canonical_name": "BENEIT COLEMAN & CO. ETC"}}, {"text": "1st August, 1933", "label": "DATE", "start_char": 13766, "end_char": 13782, "source": "ner", "metadata": {"in_sentence": "36 on lease from the Port Trust, Bombay, on 1st August, 1933 on a yearly rent of Rs."}}, {"text": "April 14, 1944", "label": "DATE", "start_char": 14053, "end_char": 14067, "source": "ner", "metadata": {"in_sentence": "37, the said respondent erected some godowns which alongwith certain other buildings that had grown up in a haphazard manner and could be described as slums were destroyed as a result of terrific explosions which occurred on April 14, 1944 in the Bombay Docks."}}, {"text": "Bombay Municipal Corporation", "label": "ORG", "start_char": 14244, "end_char": 14272, "source": "ner", "metadata": {"in_sentence": "Being of the view that it was extremely desirable that rebuilding in the devastated area should be carried out on modern principles of town planning, the Bombay Municipal Corporation by its resolution No."}}, {"text": "23rd November, 1944", "label": "DATE", "start_char": 14305, "end_char": 14324, "source": "ner", "metadata": {"in_sentence": "763 dated 23rd November, 1944, declared its intention to formulate a town planning scheme under the provisions of the Bombay Town Planning Act of 1915."}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 14452, "end_char": 14472, "source": "ner", "metadata": {"in_sentence": "The Government of Bombay sanctioned the making of the Scheme by their resolution No."}}, {"text": "9th July, 1945", "label": "DATE", "start_char": 14547, "end_char": 14561, "source": "ner", "metadata": {"in_sentence": "5355133 dated 9th July, 1945 published in Official Gazette dated 12th July, 1945."}}, {"text": "12th July, 1945", "label": "DATE", "start_char": 14598, "end_char": 14613, "source": "ner", "metadata": {"in_sentence": "5355133 dated 9th July, 1945 published in Official Gazette dated 12th July, 1945."}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 14872, "end_char": 14885, "source": "ner", "metadata": {"in_sentence": "607 (Jaswant Singh, !.)", "canonical_name": "JASWANT SINGH, JJ"}}, {"text": "section 93", "label": "PROVISION", "start_char": 15056, "end_char": 15066, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 15074, "end_char": 15103, "source": "regex", "metadata": {}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 15173, "end_char": 15202, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 15392, "end_char": 15408, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 15413, "end_char": 15422, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "City of Bombay Municipal Act, 1888", "label": "STATUTE", "start_char": 15610, "end_char": 15644, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 15665, "end_char": 15674, "source": "regex", "metadata": {"linked_statute_text": "the City of Bombay Municipal Act, 1888", "statute": "the City of Bombay Municipal Act, 1888"}}, {"text": "section 3", "label": "PROVISION", "start_char": 16753, "end_char": 16762, "source": "regex", "metadata": {"statute": null}}, {"text": "31st day of December, 1946", "label": "DATE", "start_char": 16867, "end_char": 16893, "source": "ner", "metadata": {"in_sentence": "In exercise of the power conferred by the proviso, the Government of Bombay extended the period referred to in section 3 of the Act in respect of the restriction on building works without permission upto and inclusive of the 31st day of December, 1946, Section 8 of the Act provided that the benefit of any written permission granted under section 3 shall be annexed to and shall go with the ownership of the building, wall or other structure or private street, as the case may be, in respect of which it was granted and may be enforced by every person in whom that ownereship is for the time being vested."}}, {"text": "Section 8", "label": "PROVISION", "start_char": 16895, "end_char": 16904, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 16982, "end_char": 16991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 93", "label": "PROVISION", "start_char": 17387, "end_char": 17397, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 17405, "end_char": 17434, "source": "regex", "metadata": {}}, {"text": "Section 93", "label": "PROVISION", "start_char": 17666, "end_char": 17676, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 17684, "end_char": 17713, "source": "regex", "metadata": {}}, {"text": "20th November, 1945", "label": "DATE", "start_char": 17795, "end_char": 17814, "source": "ner", "metadata": {"in_sentence": "Section 93 of the Government of India Act, 1935 under which the proclamations dated the 4th November, 1939, 15th February, 1943, 20th November, 1945 and 3rd April, 1946 were made provided as follows :-\n\n\"93."}}, {"text": "3rd April, 1946", "label": "DATE", "start_char": 17819, "end_char": 17834, "source": "ner", "metadata": {"in_sentence": "Section 93 of the Government of India Act, 1935 under which the proclamations dated the 4th November, 1939, 15th February, 1943, 20th November, 1945 and 3rd April, 1946 were made provided as follows :-\n\n\"93."}}, {"text": "Act to Provincial Act", "label": "STATUTE", "start_char": 20230, "end_char": 20251, "source": "regex", "metadata": {}}, {"text": "23rd September, 194 7", "label": "DATE", "start_char": 20691, "end_char": 20712, "source": "ner", "metadata": {"in_sentence": "On 23rd September, 194 7, the Municipal Commissioner, Bombay granted written permission(Exh. '"}}, {"text": "section 3", "label": "PROVISION", "start_char": 20812, "end_char": 20821, "source": "regex", "metadata": {"linked_statute_text": "Act to Provincial Act", "statute": "Act to Provincial Act"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 20829, "end_char": 20845, "source": "regex", "metadata": {}}, {"text": "s. 489(1)", "label": "PROVISION", "start_char": 21559, "end_char": 21568, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Building Town Planning Act, 1915", "label": "STATUTE", "start_char": 21998, "end_char": 22037, "source": "regex", "metadata": {}}, {"text": "Mis Velji Lakshmi & Co.", "label": "ORG", "start_char": 22425, "end_char": 22448, "source": "ner", "metadata": {"in_sentence": "2) was leased out by it to Mis Velji Lakshmi & Co. the appellant in Appeal No."}}, {"text": "21st December, 1953", "label": "DATE", "start_char": 22492, "end_char": 22511, "source": "ner", "metadata": {"in_sentence": "915 of 1972 on 21st December, 1953 for a period of eleven months with effect from 1st February, 1954."}}, {"text": "1st February, 1954", "label": "DATE", "start_char": 22559, "end_char": 22577, "source": "ner", "metadata": {"in_sentence": "915 of 1972 on 21st December, 1953 for a period of eleven months with effect from 1st February, 1954."}}, {"text": "4th September, 1957", "label": "DATE", "start_char": 22782, "end_char": 22801, "source": "ner", "metadata": {"in_sentence": "On 4th September, 1957, the Government of Bombay sanctioned what came to be called the Town Planning Bombay City No."}}, {"text": "section 51", "label": "PROVISION", "start_char": 22944, "end_char": 22954, "source": "regex", "metadata": {"linked_statute_text": "Bombay Building Town Planning Act, 1915", "statute": "Bombay Building Town Planning Act, 1915"}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 22962, "end_char": 22992, "source": "regex", "metadata": {}}, {"text": "1st August, 1957", "label": "DATE", "start_char": 23042, "end_char": 23058, "source": "ner", "metadata": {"in_sentence": "1 (Mandvi and Elphinstone Estates) Scheme under section 51 of the Bombay Town Planning Act, 1954 (Act XXVII of 1955) which had come into force on 1st August, 1957 and fixed 1st of December, 1957 as the date on which the Scheme would come into operation."}}, {"text": "12th\n\nSeptember, 1957", "label": "DATE", "start_char": 23207, "end_char": 23228, "source": "ner", "metadata": {"in_sentence": "A notification was published in the Official Gazette on 12th\n\nSeptember, 1957 declaring that the land on which the snit premises stood was affected by the said Scheme."}}, {"text": "section 51", "label": "PROVISION", "start_char": 23459, "end_char": 23469, "source": "regex", "metadata": {"linked_statute_text": "It may be mentioned that nuder the aforesaid final scheme which became a part and parcel of the Bombay Town Planning Act, 1954", "statute": "It may be mentioned that nuder the aforesaid final scheme which became a part and parcel of the Bombay Town Planning Act, 1954"}}, {"text": "10th September, 1957", "label": "DATE", "start_char": 23610, "end_char": 23630, "source": "ner", "metadata": {"in_sentence": "On 10th September, 1957, respondent No."}}, {"text": "21st of December, 1953", "label": "DATE", "start_char": 24111, "end_char": 24133, "source": "ner", "metadata": {"in_sentence": "This notice was issued by the respondent on the grounds that the godown was required by it\n\nfor its bonafide use and occupation and the appellant had sublet and/ or transferred interest in the godown to someone else without the permission of the respondent and infringed the terms and conditions of the lease dated 21st of December, 1953, the period of which had also expired on 31st of August, 1957."}}, {"text": "31st of August, 1957", "label": "DATE", "start_char": 24175, "end_char": 24195, "source": "ner", "metadata": {"in_sentence": "This notice was issued by the respondent on the grounds that the godown was required by it\n\nfor its bonafide use and occupation and the appellant had sublet and/ or transferred interest in the godown to someone else without the permission of the respondent and infringed the terms and conditions of the lease dated 21st of December, 1953, the period of which had also expired on 31st of August, 1957."}}, {"text": "19th September, 1958", "label": "DATE", "start_char": 24201, "end_char": 24221, "source": "ner", "metadata": {"in_sentence": "On 19th September, 1958, the Municipal Commissioner, Greater Bombay, issued the following notice (Exh. '"}}, {"text": "Bombay Municipal Corporation Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 24335, "end_char": 24394, "source": "regex", "metadata": {}}, {"text": "Times of India", "label": "PETITIONER", "start_char": 24459, "end_char": 24473, "source": "ner", "metadata": {"in_sentence": "FE/221\n\nThe Times of India\n\nOwner : Original Plot No."}}, {"text": "section 51", "label": "PROVISION", "start_char": 24621, "end_char": 24631, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Municipal Corporation Bombay Town Planning Act, 1954", "statute": "The Bombay Municipal Corporation Bombay Town Planning Act, 1954"}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 24639, "end_char": 24669, "source": "regex", "metadata": {}}, {"text": "section 53", "label": "PROVISION", "start_char": 25061, "end_char": 25071, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "Scheme AND WHEREAS all the rights of the local Authority under the Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 25526, "end_char": 25623, "source": "regex", "metadata": {}}, {"text": "Bombay Town Planning Rules, 1955", "label": "STATUTE", "start_char": 25632, "end_char": 25664, "source": "regex", "metadata": {}}, {"text": "VELJI LAKSHMI", "label": "JUDGE", "start_char": 25943, "end_char": 25956, "source": "ner", "metadata": {"in_sentence": "Town Planning Scheme No.1 Bombay Municipal Corporation) upon which yonr temporary structure stands, is affected by the said Scheme AND WHEREAS all the rights of the local Authority under the Bombay Town Planning Act, 1954 and the Bombay Town Planning Rules, 1955 are hereby expressly reserved AND WHEREAS you H are permitted under the City of Bombay (Building Works Restriction) Act, 1944, to erect a temporary structure on the terms and conditions mentioned in the said permit AND WHEREAS you agreed to pull down or remove the building or\n\nVELJI LAKSHMI & CO.", "canonical_name": "VELJI LAKSHMI & CO. ETC"}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 25992, "end_char": 26005, "source": "ner", "metadata": {"in_sentence": "611 (Jaswant Singh, J.) .work whenever required by me to do so, you are hereby called upon to pull down and remove the entire building or work in respect of which permission was granted under Permit No.", "canonical_name": "JASWANT SINGH, JJ"}}, {"text": "23rd December, 1947", "label": "DATE", "start_char": 26207, "end_char": 26226, "source": "ner", "metadata": {"in_sentence": "5211520/TP dated 23rd December, 1947 on or before\n\n30th October, 1958 failing which I shall cause the building or work to be pulled down or removed under section 489 of the Bombay Municipal Corporation Act and shall seek to recover the costs thereof as provided by that Municipal Act."}}, {"text": "30th October, 1958", "label": "DATE", "start_char": 26241, "end_char": 26259, "source": "ner", "metadata": {"in_sentence": "5211520/TP dated 23rd December, 1947 on or before\n\n30th October, 1958 failing which I shall cause the building or work to be pulled down or removed under section 489 of the Bombay Municipal Corporation Act and shall seek to recover the costs thereof as provided by that Municipal Act."}}, {"text": "section 489", "label": "PROVISION", "start_char": 26344, "end_char": 26355, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Rules, 1955", "statute": "the Bombay Town Planning Rules, 1955"}}, {"text": "Bombay Town Planning Rules, 1955", "label": "STATUTE", "start_char": 26634, "end_char": 26666, "source": "regex", "metadata": {}}, {"text": "22nd of February, 1960", "label": "DATE", "start_char": 26807, "end_char": 26829, "source": "ner", "metadata": {"in_sentence": "On 22nd of February, 1960 respondent No."}}, {"text": "Mis Velji Lakhamsi & Co.", "label": "ORG", "start_char": 26872, "end_char": 26896, "source": "ner", "metadata": {"in_sentence": "1 issued another notice to Mis Velji Lakhamsi & Co. calling upon it to quit, vacate and deliver peaceful and vacant possession of the godown in its occupation within 24 hours from the date of the receipt of the notice."}}, {"text": "Jamnadas Bhimji & Co.", "label": "ORG", "start_char": 27465, "end_char": 27486, "source": "ner", "metadata": {"in_sentence": "2,500/- p.m., (b) that the premises were requ'red by the respondent for the immediate purpose of demolition ordered by the Municipal Commissioner for Greater Bombay, {c) that the appellant had sublet the premises to M/s Jamnadas Bhimji & Co., the appellant in Appeal No."}}, {"text": "Bombay Act LVII of 1947", "label": "STATUTE", "start_char": 27554, "end_char": 27577, "source": "regex", "metadata": {}}, {"text": "Velji Lakhamsi & Co.", "label": "ORG", "start_char": 27640, "end_char": 27660, "source": "ner", "metadata": {"in_sentence": "On M/s Velji Lakhamsi & Co.'s failure to comply with respondent No."}}, {"text": "Court of Small Causes, Bombay", "label": "COURT", "start_char": 27796, "end_char": 27825, "source": "ner", "metadata": {"in_sentence": "l's aforesaid notices calling upon it to vacate the premises, the latter brought a suit in the Court of Small Causes, Bombay on 18th April, 1960 for eviction of the former on the ground that the premises were required under section 13(1) (hhh) of the Bombay R!onts (Hotel and Lodging Houses Rates) Control Act, 1947 (hereinafter referred to as 'the Bombay Rents Control Act, 194 7') for the immediate purpose of demolition ordered by the Local Authority i.e. the Town Planning Authorities and the Bombay Municipal Corporation or other competent authority."}}, {"text": "18th April, 1960", "label": "DATE", "start_char": 27829, "end_char": 27845, "source": "ner", "metadata": {"in_sentence": "l's aforesaid notices calling upon it to vacate the premises, the latter brought a suit in the Court of Small Causes, Bombay on 18th April, 1960 for eviction of the former on the ground that the premises were required under section 13(1) (hhh) of the Bombay R!onts (Hotel and Lodging Houses Rates) Control Act, 1947 (hereinafter referred to as 'the Bombay Rents Control Act, 194 7') for the immediate purpose of demolition ordered by the Local Authority i.e. the Town Planning Authorities and the Bombay Municipal Corporation or other competent authority."}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 27925, "end_char": 27938, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act LVII of 1947", "statute": "Bombay Act LVII of 1947"}}, {"text": "Control Act, 1947", "label": "STATUTE", "start_char": 27999, "end_char": 28016, "source": "regex", "metadata": {}}, {"text": "Mis Jamnadas Bhimji & Co.", "label": "ORG", "start_char": 28634, "end_char": 28659, "source": "ner", "metadata": {"in_sentence": "Mis Jamnadas Bhimji & Co. being in possession through M/s Velji Lakhamsi & Co. of a part of the premises as a sub-tenant, it was also impleaded by respondent No."}}, {"text": "12th September, 1963", "label": "DATE", "start_char": 30033, "end_char": 30053, "source": "ner", "metadata": {"in_sentence": "On a consideration of the evidence adduced in the case, the trial court by its judgment dated 12th September, 1963 negatived the con.tentions raised by the appellants and decreed the suit and ordered the appellants to deliver possession of the suit premises to respondent No."}}, {"text": "11th September,. 1964", "label": "DATE", "start_char": 30220, "end_char": 30241, "source": "ner", "metadata": {"in_sentence": "l by 11th September,."}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 30543, "end_char": 30556, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 30570, "end_char": 30600, "source": "regex", "metadata": {}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 30628, "end_char": 30641, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Court of Small Causes at Bombay", "label": "COURT", "start_char": 31748, "end_char": 31779, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this decision, the appellants in both the appeals pre .. ferred separate appeals to the appellate Bench of the Court of Small Causes at Bombay which were allowed by a common Judgment dated 10th December, 1968 with the observations that the conditions which the Commissioner laid down in the written permission (Exh. '"}}, {"text": "10th December, 1968", "label": "DATE", "start_char": 31826, "end_char": 31845, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this decision, the appellants in both the appeals pre .. ferred separate appeals to the appellate Bench of the Court of Small Causes at Bombay which were allowed by a common Judgment dated 10th December, 1968 with the observations that the conditions which the Commissioner laid down in the written permission (Exh. '"}}, {"text": "aswant Singh", "label": "JUDGE", "start_char": 32009, "end_char": 32021, "source": "ner", "metadata": {"in_sentence": "aswant Singh, !.)", "canonical_name": "JASWANT SINGH, JJ"}}, {"text": "section 3", "label": "PROVISION", "start_char": 32041, "end_char": 32050, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 32058, "end_char": 32074, "source": "regex", "metadata": {}}, {"text": "4th November, 1939", "label": "DATE", "start_char": 32129, "end_char": 32147, "source": "ner", "metadata": {"in_sentence": "granted under section 3 of the Bombay Act, 1944 (made by the Go- A vemor under the proclamation dated 4th November, 1939) were not analogous to statutory mies and regulations or bye-laws; that the said Act which was of temporary character having lapsed on 3rd April, 1948, the commissioner ceased to have statutory authority to call upon respondent No."}}, {"text": "3rd April, 1948", "label": "DATE", "start_char": 32283, "end_char": 32298, "source": "ner", "metadata": {"in_sentence": "granted under section 3 of the Bombay Act, 1944 (made by the Go- A vemor under the proclamation dated 4th November, 1939) were not analogous to statutory mies and regulations or bye-laws; that the said Act which was of temporary character having lapsed on 3rd April, 1948, the commissioner ceased to have statutory authority to call upon respondent No."}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 32770, "end_char": 32783, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 32797, "end_char": 32827, "source": "regex", "metadata": {}}, {"text": "section 13(1)", "label": "PROVISION", "start_char": 33314, "end_char": 33327, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 33341, "end_char": 33371, "source": "regex", "metadata": {}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 33608, "end_char": 33642, "source": "ner", "metadata": {"in_sentence": "1 thereupon took the matter to the High Court of Judicature at Bombay by means of the aforesaid petitions Nos."}}, {"text": "Article 227", "label": "PROVISION", "start_char": 33712, "end_char": 33723, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "20th March, 1972", "label": "DATE", "start_char": 33768, "end_char": 33784, "source": "ner", "metadata": {"in_sentence": "By its judgment dated 20th March, 1972, the High Court granted the petitions and set aside the judgment and decree passed by the appellate Bench of the Court of Small Causes and restored there of the trial Court holding that the E notice (Exh. '"}}, {"text": "section 3", "label": "PROVISION", "start_char": 34297, "end_char": 34306, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 34314, "end_char": 34330, "source": "regex", "metadata": {}}, {"text": "sections 5 and 6", "label": "PROVISION", "start_char": 34486, "end_char": 34502, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "section 3", "label": "PROVISION", "start_char": 34748, "end_char": 34757, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "section 13", "label": "PROVISION", "start_char": 35124, "end_char": 35134, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 35153, "end_char": 35183, "source": "regex", "metadata": {}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 35452, "end_char": 35457, "source": "ner", "metadata": {"in_sentence": "B') had lost its efficacy as the town planning scheme had been held in abeyance, the High Court observed :- H\n\n\"It may be that the town planning scheme is in abeyance for the very fact that persons like Mr. Bhatt's clients are\n\nobstructing eviation proceedings filed by the landlords."}}, {"text": "section 13(1)(hhh)", "label": "PROVISION", "start_char": 35647, "end_char": 35665, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 36371, "end_char": 36376, "source": "ner", "metadata": {"in_sentence": "Appearing in support of the appeals, Mr Patel and Mr. Bhatt, learned counsel for appellant in C. A. No."}}, {"text": "section 13", "label": "PROVISION", "start_char": 36740, "end_char": 36750, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 36758, "end_char": 36788, "source": "regex", "metadata": {}}, {"text": "That the Bombay Act, 1944", "label": "STATUTE", "start_char": 37068, "end_char": 37093, "source": "regex", "metadata": {}}, {"text": "section 7", "label": "PROVISION", "start_char": 37161, "end_char": 37170, "source": "regex", "metadata": {"linked_statute_text": "That the Bombay Act, 1944", "statute": "That the Bombay Act, 1944"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 37185, "end_char": 37204, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 93(1)", "label": "PROVISION", "start_char": 37381, "end_char": 37394, "source": "regex", "metadata": {"linked_statute_text": "That the Bombay Act, 1944", "statute": "That the Bombay Act, 1944"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 37402, "end_char": 37431, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 37585, "end_char": 37594, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Municipal Commissioner, Bombay", "label": "RESPONDENT", "start_char": 38018, "end_char": 38048, "source": "ner", "metadata": {"in_sentence": "(2) That the Municipal Commissioner, Bombay, having oeased to have a statutory existence on the expiry of\n\nVELJI LAKSHMI & CO."}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 38184, "end_char": 38200, "source": "regex", "metadata": {}}, {"text": "Municipal Commissioner did not become non est on the lapse of the Bombay Act, 1944", "label": "STATUTE", "start_char": 38291, "end_char": 38373, "source": "regex", "metadata": {}}, {"text": "Bombay Municipal Corporation Act, 1883", "label": "STATUTE", "start_char": 38445, "end_char": 38483, "source": "regex", "metadata": {}}, {"text": "That no statutory rule or bye-law having been made under the Bombay Act, 1944", "label": "STATUTE", "start_char": 38698, "end_char": 38775, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 39074, "end_char": 39084, "source": "regex", "metadata": {"linked_statute_text": "That no statutory rule or bye-law having been made under the Bombay Act, 1944", "statute": "That no statutory rule or bye-law having been made under the Bombay Act, 1944"}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 39092, "end_char": 39122, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 39252, "end_char": 39262, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Chitaman Krishnaji Limaya", "label": "WITNESS", "start_char": 39818, "end_char": 39843, "source": "ner", "metadata": {"in_sentence": "The learned counsel have emphasized that in the instant case, the statement of P.W. Chitaman Krishnaji Limaya, the Sub- Engineer, Bombay Municipal Corporation, to the effect that the general policy of the Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the constructions are to be demolished unequivocally shows that the premises in question are not really required for the immediate purpose of demolition. ·"}}, {"text": "section 13", "label": "PROVISION", "start_char": 40543, "end_char": 40553, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 40561, "end_char": 40591, "source": "regex", "metadata": {}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 40790, "end_char": 40797, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman, learned counsel for respondent No."}}, {"text": "has referred us to various provisions of the City of Bombay Municipal Act, 1888", "label": "STATUTE", "start_char": 40927, "end_char": 41006, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 41012, "end_char": 41028, "source": "regex", "metadata": {}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 41086, "end_char": 41116, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 41228, "end_char": 41244, "source": "regex", "metadata": {}}, {"text": "Bombay Municipal Act, 1888", "label": "STATUTE", "start_char": 41268, "end_char": 41294, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 41389, "end_char": 41405, "source": "regex", "metadata": {}}, {"text": "Municipal Connnissiouer survived the lapse of the Bombay Act, 1944", "label": "STATUTE", "start_char": 41490, "end_char": 41556, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 41854, "end_char": 41864, "source": "regex", "metadata": {"linked_statute_text": "the Municipal Connnissiouer survived the lapse of the Bombay Act, 1944", "statute": "the Municipal Connnissiouer survived the lapse of the Bombay Act, 1944"}}, {"text": "Parke B.", "label": "JUDGE", "start_char": 43340, "end_char": 43348, "source": "ner", "metadata": {"in_sentence": "The following observations at pages 409- 410 in Craies on Statute Law (Seventh Edition) are worth quoting in this connection :- -\n\n\"The difference between the effect of the expiration of a temporary Act and the repeal of a perpetual Act is pointed out by Parke B. in Steavenson v. O/.iver (1841) 8 M. & W.\n\nH 234, 240, 241.", "canonical_name": "Parke B."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 44750, "end_char": 44764, "source": "ner", "metadata": {"in_sentence": "1 of 1959 promulgated by the Governor valida- C ting the election to the Cuttack Municipality (which had earlier been declared to be invalid by the High Court) and curing the invalidity of the electoral rolls in respect of other Municipalities were of lasting character and endured after the expiry of the ordinance, Gajendragadkar, J. (as he then was) speaking for the Court observed:\n\n\"In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions."}}, {"text": "Chetty", "label": "OTHER_PERSON", "start_char": 44961, "end_char": 44967, "source": "ner", "metadata": {"in_sentence": "1 of 1959 promulgated by the Governor valida- C ting the election to the Cuttack Municipality (which had earlier been declared to be invalid by the High Court) and curing the invalidity of the electoral rolls in respect of other Municipalities were of lasting character and endured after the expiry of the ordinance, Gajendragadkar, J. (as he then was) speaking for the Court observed:\n\n\"In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Chetty relies is inflexible and admits of no exceptions."}}, {"text": "Steavenson", "label": "OTHER_PERSON", "start_char": 46532, "end_char": 46542, "source": "ner", "metadata": {"in_sentence": "The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance."}}, {"text": "section 4", "label": "PROVISION", "start_char": 47401, "end_char": 47410, "source": "regex", "metadata": {"statute": null}}, {"text": "1st August, 1826", "label": "DATE", "start_char": 47679, "end_char": 47695, "source": "ner", "metadata": {"in_sentence": "The statute was temporary and it expired on 1st August, 1826."}}, {"text": "Abinger", "label": "JUDGE", "start_char": 48398, "end_char": 48405, "source": "ner", "metadata": {"in_sentence": "In dealing with the question about the effect of the expiration of the temporary statute, the learned Judges composing the • Bench observed :\n\n\"Lord Abinger, C. B.-We are of opinion that the replication is good, and there must therefore be judgment for the plaintiff."}}, {"text": "Parliament", "label": "ORG", "start_char": 48562, "end_char": 48572, "source": "ner", "metadata": {"in_sentence": "It is by no means a consequence of an act of Parliament's expiring, that rights acquired under it should likewise expire."}}, {"text": "Parke", "label": "JUDGE", "start_char": 49130, "end_char": 49135, "source": "ner", "metadata": {"in_sentence": "Parke, B.-Then comes the question whether the privilege of practising given by the stat.", "canonical_name": "Parke B."}}, {"text": "st of August, 1826", "label": "DATE", "start_char": 50112, "end_char": 50130, "source": "ner", "metadata": {"in_sentence": "st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the I st of August, 1826."}}, {"text": "1st of August, 1815", "label": "DATE", "start_char": 50259, "end_char": 50278, "source": "ner", "metadata": {"in_sentence": "st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the I st of August, 1826."}}, {"text": "st of .August, 1815", "label": "DATE", "start_char": 51312, "end_char": 51331, "source": "ner", "metadata": {"in_sentence": "st of .August, 1815."}}, {"text": "1st of August, 1826", "label": "DATE", "start_char": 51877, "end_char": 51896, "source": "ner", "metadata": {"in_sentence": "It is, however, necessary to decide that point; it is enough to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of August, 1826 retained that qualification not withstanding the expiration of the statute."}}, {"text": "Alderson", "label": "JUDGE", "start_char": 51975, "end_char": 51983, "source": "ner", "metadata": {"in_sentence": "Alderson, B.-I am of the same opinion."}}, {"text": "Parke", "label": "JUDGE", "start_char": 52748, "end_char": 52753, "source": "ner", "metadata": {"in_sentence": "Independently, however, of this consideration, I agree in the opinion already expressed by any Brother Parke. ,", "canonical_name": "Parke B."}}, {"text": "Rolfe", "label": "JUDGE", "start_char": 52798, "end_char": 52803, "source": "ner", "metadata": {"in_sentence": "R.\n\nRolfe, B.-The only important question in this case is the last."}}, {"text": "Ellen", "label": "JUDGE", "start_char": 53465, "end_char": 53470, "source": "ner", "metadata": {"in_sentence": "2, c. 35 absoiutely though its own provisions, which it substituted in place of it, were to be only temporary, Lord Ellen borough, C.J. held that \"a law though temporary in some of its provisions, may have a permanent operation in other respects\"."}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 54202, "end_char": 54218, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 54696, "end_char": 54705, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 55573, "end_char": 55589, "source": "regex", "metadata": {}}, {"text": "sections 3 and 8", "label": "PROVISION", "start_char": 55644, "end_char": 55660, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 55668, "end_char": 55684, "source": "regex", "metadata": {}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 56327, "end_char": 56364, "source": "ner", "metadata": {"in_sentence": "In the State of Uttar Pfadesh v. Seth Jagamander Das (supra), this Conrt while upholding: the order of the High Court of Judicature at Allahabad quashing the proceedings taken against the respondent under section 120B, Indiin Penal Code, read with Rnles 81 (4) and 121, of the Defence of India, Rules for the alleged violation of clause (2) of the Non-Ferrous Metals Control Order (1942) held that prosecution could not be B commenced for contravention of the Non-Ferrous Metals Control Order (1942) after the expiry of the Defence of India Act under which it had been made because that would amount to the enforcement of a dead Act."}}, {"text": "section 120B", "label": "PROVISION", "start_char": 56425, "end_char": 56437, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Indiin Penal Code", "label": "STATUTE", "start_char": 56439, "end_char": 56456, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 57186, "end_char": 57212, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 57364, "end_char": 57373, "source": "regex", "metadata": {"linked_statute_text": "Indiin Penal Code", "statute": "Indiin Penal Code"}}, {"text": "East Punjab Public Safety Act, 1949", "label": "STATUTE", "start_char": 57387, "end_char": 57422, "source": "regex", "metadata": {}}, {"text": "section 6", "label": "PROVISION", "start_char": 57519, "end_char": 57528, "source": "regex", "metadata": {"linked_statute_text": "the East Punjab Public Safety Act, 1949", "statute": "the East Punjab Public Safety Act, 1949"}}, {"text": "Greater Bombay was not competent after the expiry of the Bombay Act, 1944", "label": "STATUTE", "start_char": 57863, "end_char": 57936, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 58097, "end_char": 58113, "source": "regex", "metadata": {}}, {"text": "Bombay Municipal Act, 1888", "label": "STATUTE", "start_char": 58151, "end_char": 58177, "source": "regex", "metadata": {}}, {"text": "sections 2 and 6", "label": "PROVISION", "start_char": 58228, "end_char": 58244, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Act, 1888", "statute": "the Bombay Municipal Act, 1888"}}, {"text": "Being a creature of the Bombay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 58421, "end_char": 58483, "source": "regex", "metadata": {}}, {"text": "section 54", "label": "PROVISION", "start_char": 58565, "end_char": 58575, "source": "regex", "metadata": {"linked_statute_text": "Being a creature of the Bombay Municipal Corporation Act, 1888", "statute": "Being a creature of the Bombay Municipal Corporation Act, 1888"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 58634, "end_char": 58650, "source": "regex", "metadata": {}}, {"text": "section 489", "label": "PROVISION", "start_char": 59112, "end_char": 59123, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Act, 1944", "statute": "the Bombay Act, 1944"}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 59269, "end_char": 59299, "source": "regex", "metadata": {}}, {"text": "section 51(3)", "label": "PROVISION", "start_char": 59314, "end_char": 59327, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "notice ex facie shows that it was being issued under the Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 59345, "end_char": 59432, "source": "regex", "metadata": {}}, {"text": "Town Planning Bomba)' City B No. 1 (Elphinstone Estate) Scheme", "label": "ORG", "start_char": 59494, "end_char": 59556, "source": "ner", "metadata": {"in_sentence": "the Town Planning Bomba)' City B No."}}, {"text": "section 51", "label": "PROVISION", "start_char": 59621, "end_char": 59631, "source": "regex", "metadata": {"linked_statute_text": "The notice ex facie shows that it was being issued under the Bombay Town Planning Act, 1954", "statute": "The notice ex facie shows that it was being issued under the Bombay Town Planning Act, 1954"}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 59639, "end_char": 59669, "source": "regex", "metadata": {}}, {"text": "section 489", "label": "PROVISION", "start_char": 60109, "end_char": 60120, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "Municipal Act, 1888", "label": "STATUTE", "start_char": 60128, "end_char": 60147, "source": "regex", "metadata": {}}, {"text": "Syed Mohammad", "label": "OTHER_PERSON", "start_char": 60830, "end_char": 60843, "source": "ner", "metadata": {"in_sentence": "We feel tempted at this juncture to reproduce the following observation made by this Court in N. B. Sanjana v. Elphinston Mill\n\n(supra) :-\n\n\"Dr. Syed Mohammad is, no doubt, well founded in bis contention that if the appellants have power to issue notice either under rule lOA or rule 9(2) (of the Central Excise Rules, 1944), the fact that the notice refers specifically to a particular rule, which may not be applicable, will not make the notice invalid on that ground as has been held by this Court in J. K. Steel Ltd. v. Union of India (supra)."}}, {"text": "Central Excise Rules, 1944", "label": "STATUTE", "start_char": 60982, "end_char": 61008, "source": "regex", "metadata": {}}, {"text": "Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944", "label": "STATUTE", "start_char": 61590, "end_char": 61678, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 61731, "end_char": 61740, "source": "regex", "metadata": {"linked_statute_text": "Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944", "statute": "Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944"}}, {"text": "[1964] 4 S.C.R. 991", "label": "CASE_CITATION", "start_char": 62132, "end_char": 62151, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 62451, "end_char": 62460, "source": "regex", "metadata": {"linked_statute_text": "Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944", "statute": "Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944"}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 62468, "end_char": 62484, "source": "regex", "metadata": {}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 62678, "end_char": 62708, "source": "regex", "metadata": {}}, {"text": "section 51(3)", "label": "PROVISION", "start_char": 62722, "end_char": 62735, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "section 55(1)(a)", "label": "PROVISION", "start_char": 62761, "end_char": 62777, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "section 87", "label": "PROVISION", "start_char": 62809, "end_char": 62819, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "section 55", "label": "PROVISION", "start_char": 62883, "end_char": 62893, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 62901, "end_char": 62931, "source": "regex", "metadata": {}}, {"text": "section 87", "label": "PROVISION", "start_char": 62955, "end_char": 62965, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "section 15", "label": "PROVISION", "start_char": 63203, "end_char": 63213, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "Section 55", "label": "PROVISION", "start_char": 64323, "end_char": 64333, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 64341, "end_char": 64371, "source": "regex", "metadata": {}}, {"text": "section 87", "label": "PROVISION", "start_char": 65442, "end_char": 65452, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Town Planning Act, 1954", "label": "STATUTE", "start_char": 65460, "end_char": 65490, "source": "regex", "metadata": {}}, {"text": "section 55", "label": "PROVISION", "start_char": 65607, "end_char": 65617, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "section 13", "label": "PROVISION", "start_char": 66283, "end_char": 66293, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Town Planning Act, 1954", "statute": "the Bombay Town Planning Act, 1954"}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 66301, "end_char": 66331, "source": "regex", "metadata": {}}, {"text": "Bombay Act, 1944", "label": "STATUTE", "start_char": 66418, "end_char": 66434, "source": "regex", "metadata": {}}, {"text": "sections 17", "label": "PROVISION", "start_char": 68050, "end_char": 68061, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Rents Control A Act, 1947", "label": "STATUTE", "start_char": 68084, "end_char": 68116, "source": "regex", "metadata": {}}, {"text": "B Bombay Municipal Corporation", "label": "ORG", "start_char": 68528, "end_char": 68558, "source": "ner", "metadata": {"in_sentence": "The statement of P.W. Chitaman Krishnaji Limaya, Sub-Engineer, B Bombay Municipal Corporation made nearly fourteen years ago to the effect that \"the general policy of Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the contructions are to be demolished\" on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the instrnctions on which the statement was based related to the period between Ist July, 1962 and 31st December, C 1962."}}, {"text": "Ist July, 1962", "label": "DATE", "start_char": 68977, "end_char": 68991, "source": "ner", "metadata": {"in_sentence": "The statement of P.W. Chitaman Krishnaji Limaya, Sub-Engineer, B Bombay Municipal Corporation made nearly fourteen years ago to the effect that \"the general policy of Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the contructions are to be demolished\" on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the instrnctions on which the statement was based related to the period between Ist July, 1962 and 31st December, C 1962."}}, {"text": "31st December, C 1962", "label": "DATE", "start_char": 68996, "end_char": 69017, "source": "ner", "metadata": {"in_sentence": "The statement of P.W. Chitaman Krishnaji Limaya, Sub-Engineer, B Bombay Municipal Corporation made nearly fourteen years ago to the effect that \"the general policy of Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the contructions are to be demolished\" on which strong reliance is placed on behalf of the appellants has no relevance for our purpose as the instrnctions on which the statement was based related to the period between Ist July, 1962 and 31st December, C 1962."}}, {"text": "25th Juiy, 1974", "label": "DATE", "start_char": 69410, "end_char": 69425, "source": "ner", "metadata": {"in_sentence": "D TPB 1073/33184 published in the Government Gazette dated 25th Juiy, 1974, wspended certain regulations of the principal Scheme but this suspension has not the same effect as withdrawal or abandonment of the scheme which admittedly has not been done."}}, {"text": "section\n\n0", "label": "PROVISION", "start_char": 71189, "end_char": 71199, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 71232, "end_char": 71242, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Rents Control Act, 1947", "label": "STATUTE", "start_char": 71250, "end_char": 71280, "source": "regex", "metadata": {}}, {"text": "section 507", "label": "PROVISION", "start_char": 71381, "end_char": 71392, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Rents Control Act, 1947", "statute": "the Bombay Rents Control Act, 1947"}}, {"text": "Bombay Municipal Corporation Act, 1888", "label": "STATUTE", "start_char": 71400, "end_char": 71438, "source": "regex", "metadata": {}}]}
{"document_id": "1977_3_60_67_EN", "year": 1977, "text": "SUNDER DASS\n\nRAM PRAKASH\n\nFebruary 24, 1977\n\n(P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ.]\n\n!), lhi Rent Control !:let, 1958-Scc. 3-Pra:io-lnterpretation of ~-1,1tutes --Introduction of proviso with 1etrospective efject-iV!1et/Jer decree passed' t'arfi,-,- becon1c.1 a nu!fity-Lt'gaf fiction-Whether to be carried to logical conclusion.\n\nThe appellant purchased in a public auction a building \\vhich was evacuee property.\n\nBefore the sale certificate was made out in fa\\'our of the <tppdlant, the possession of the building was handed over to hi1n.\n\nHe in turn let f\\Ut a shop in the said building to the respondent.\n\nThe aprelL1nt filed a suit for eviction in the Civil Court against the respondent.\n\nThe Civil Court passed a decree for eviction and negatived the contention oi the respondent thrit the Delhi Rent Control 1\\ct. 1958 \\~; as applicable anL!. therefore, the jurisdiction of the CiYil Court was barred.\n\nThe Court rclL::d on section J of the Delhi Rent Control Act which provides that nothing in the Act shall <ippl~' to any preinises belonging to the Government.\n\nThe decree for eviction \\Vas continued by the Appellate C:ourt and then by the High Court in Second Appeal. Before ihc decree could be executed section 3 was atnended by adding <i proviso with retrospective efTect, \\vhich proviJed that where any premi:-.es belonging to Clover~ nment have been lnrfully let out by any per5on, then notwithstanding any jpdgn1ent. decn:~ or order of any court the prov; sions of the i\\ct \\VOtild apply to the tcn<incy.\n\nThe Executing Court held that it \\\\'a<; not co1npctent to it to go into the question v,; bethcr the decree \\\\'as n::ndere'.1 a nullity on th<.:- ground !hat the jurisdiction of the Civil Court \\Vas out>ted bv the introduction of the rroviso in section 3 \\Vith retrospective eff<!ct since - the decree had become tin<1l bet\\\\een the partie'i.\n\nThe Appellate Court upheld the said decision. The f-Iigh Court in Second ,\\ppe<1l reversed the dcci; ion of the tvvo courts b;_-Jow ;:;.nd held that the decree wa' :i nullity and coulJ not be executed.\n\nDismissing the ; ippeal this Court.\n\nHELD: (I) An executing court cannot go behind the decree nor can it question its kgality or correctness but where a decree sought to be executed is a nullity for [acJ..: of inhetcn! jurisdiction in the court passing it, its invalidity F c;:;.n b,· se! ur in <In execution rrocceding. [h4C-f)j\n\nVidc Kirtin Sing/I \\'. Cluu111111 l'a.s1u111 ll955J l S('R 177 and Set!z fliralal Patni v. Sri Kuti Nath, P962J 2 SCR 747. followed.\n\n(_2) Since the proviso \\VrlS introduced with retrospective effect it mLst be deemed to be part of section 3 since the time the Delhi Rent Control A<.:t was cnnctcd. [65-D]\n\nEast End D1n:lli11gs Co. Ltd. \\'. Finsbury Borough Co11ncif (1952]\n\nA.C. 132, '.1pprovcd.\n\nAs a rcult of the fiction the proviso n1ust be dcerncd to be part of s::ction 3 from the date of enactment of the Act.\n\nThe lof!ical ar, d inevitable conse~ qucnce of the introduction of the proviso in section 3 with retrospective effect \\voulU be to read the proviso as if it \\vere part of the sction at the date v,.hen the Act v,1as enacted. and the legal fiction created by the retrospective operation nu1st be carried to its logical extent and all the consequences and incidents must he worked out as if the proviso forms part of the section right from the beginning.\n\nThe phrase \"notwithstanding any jt1dgment, decree or order of any court'' in the proviso makes it denr that the legislature intended that the finality of the judgment, decree etc .. should not stand in the way of giving full effect to the ietrospective operation of thci proviso in section 3.\n\n[66C-GJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2006 1968. of A\n\n(From the Judgment and Decree dated 26-11-1961 of the Punjab High Court Circuit Bench at Delhi in Execution Second Appeal No. 158-D of 1964).\n\nBishan Narain and D. N. Mishra, for the appellant.\n\nV. S. Desai, B. P. Singh and A. K. Srivastava, for the respondent.\n\nThe fodgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal by certificate raises a short but interesting question of law relating to the interpretation and effect of the proviso to section 3 of the Delhi Rent Control Act, 1958.\n\nThe dispute in this appeal relates to a shop situate on the ground floor of a building bearing Municipal No. 624-36 (Old) 530-35 (New) situate in Sadar Bazar, Delhi.\n\nThe building was an evacuee property and it was acquired by the Central Government under section 12 o[ the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and formed part of the compensation pool. It was sold by public auction and the appellant being the highest bidder was accepted as the auction purchaser by the managing officer on 5th September,\n\n1955. It does not appear from the record as to when the ppellant paid the full purchase price to the managing officer but presumably he did so before 23rd September, 1955 when the sale was confirmed in his favour by the managing officer.\n\nThe sale certificate was not issued in favour of the appellant for a considerable, time and we are told that even until now it has not been issued, but possession of the building was handed over to the appellant on 30th August, 1956 and a letter dated 3rd September, 1956 was addressed by the mauagin)! officer to the respondent intimating to him that since possession of the building had been handed over to the appellant. the respondent should pay rent to the appellant and otherwise deal directly with him with effect from 30th August, 1956.\n\nThis Jetter was addressed to the respondent, because at that time the respondent was in possession of\n\none other shop in the same building as a tenant and pmsuant to this Jetter, he attorned tenancy in respect of that shop to the appellant. On\n\n1st September, 1956, the appellant let out the shop in dispute (hereinafter referred to as the premises) to the respondent and the latter continued in possession of the premises as a monthly tenant. However, on 10th August. 1959 the appe_llant gave a notice to quit terminating the tenancy of the respondent and calling upon him tn hand over vacant possession of the premises by the mid-nightj of 31st August, 1959. The respondent declined to comply with the requisition contained in the notice and hence the aPoellant filed a suit in the Court of the Senior Subordinate Judge, Delhi on 1 Stt September, 1959 for recovery of possession of the premises from the respondent.\n\nThere was also a claim made in the suit for recoverv of arrea-rs of rent bu~ this claim is no longer material a_nd we need not dwell on it.\n\nThe respondent resisted the claim for eviction inter alia on the ground\n\nthat the certificate of sale not having been issued in favour of the\n\nI appe!Jant, he was not the owner of the premises and hence he was not lega!Jy competent to let ont the premises to the respondent nor was he entitled to recover possession of the premises from the respondent.\n\nThe respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958 which had come into force on 9th February, 1959 was applicable to the tenancy of the premises and by reason of section 50 of that Act, the civil court had no jurisdiction to entertain the suit.\n\nThe Trial Court took the view, on a reading of the decision of this Court in Ml s Bombay Sliil and Chemical Industries v. L. J. Johnson,(') that since the certificate of sale was not issued in favour of the appe!Jant, he had not become the owner of the premises and the premises continued to belong to the Government and by reason of section 3 which provided that \"Nothing in this Act shall apply to any premises belonging to the Government\", the Delhi Rent Control Act, 1958 was not applicable to the tenancy in respect of the premises and the civil court had jurisdiction to entertain the suit.\n\nThe Trial Court also held that since the full purchase price had been paid by the appellant and possession of the premises had been handed over by the managing officer to the appellant on 30th August, 1956, the appellant was legally competent to let out the premises to the respondent and lhe premises having been lawfully let out by the appellant to the respondent, there was relationship of landlord and tenant between the parties and since the 'tenancy was validly terminated by the appellant by giving notice to quit in accordance with the provisions of section\n\n106 of the Transfer of Property Act, the appellant was entitled to recover possession of the premises from 'the respondent.\n\nA decree for eviction was accordingly passed by the Trial Court in favour of the appellant.\n\nThe respondent preferred an appeal but the appeal was dismissed by the Additional District Judge, Delhi on substantially the same view as that taken by the Trial Court.\n\nThis was followed by a second appeal to the High Court but that appeal also met with the same fate and the decree for eviction became final between the parties.\n\nNow, before the decree for eviction could be executed, an amendment was made in section 3 of the Delhi Rent Control Act, 1958 which is very! material.\n\nWe shall immediately refer to this amendment, but before we do so, it would be convenient to advert to a few relevant provisions of the Delhi Rent Control Act, 1958.\n\nThis: Act came into force with effect from 9th February, 1959 and it was intended to provide inter alia for control of rents and evictions .. Section 14, sub-section (I) granted protection to the tenant against eviction by providing that notwithstanding anything contained in any other Jaw or contract, no order or decree for recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant, but the proviso to this sub-section laid down certain grounds on which the Controller could. on an application made to him in the prescribed manner, make an order for recovery of possession of the premises.\n\nSince the jurisdiction to make\n\n(11 AJ.R. !958 S.C. 289.\n\nan order for recovery of possession of premises on one or more of the specified grounds was given to the Coutroller under section 14, subsection (1), section 50 ousted the jurisdiction of the civil court by declaring that, save as otherwise expressly provided in the Act, no civil court shall entertain any suit or proceeding in so far as i1. relates inter alia to eviction of any tenant from any premises to wl1ich the Act applies or to any other matter which the Controller is empowered by or under the Act to decide. lf, therefore, the premises in the present case were premises to which the Act applied, the civil court would have no jurisdiction to entertain the suit filed by the appellant for recovery of possession of the premises from the respondent. But section 3, as it stood prior to its amendment, by Act 4 of 1963, provided that nothing in the Act shall apply to any premises belonging to the Government. The view taken by the Trial Court and affirmed by the Additional District Judge and the High Court was that since the certificate of sale was not issued in favour of the appellant, the premises continued lo belong to the Government and on this view, the Act clearly did not apply to the premises and neither section 14, sub-section (I) nor section 50 being applicable, the civil court continued to have jurisdiction to entertain the suit. This was the reason\n\nwhy the decree for eviction was passed by the Trial Court against the respondettt and it was affirmed by the Additional District J u<lge and\n\nthe High Court.\n\nBut by the time the decree for eviction came tc1 be executed, the following proviso was added in section 3 by Act 4 o[ 1963 with retrospective effect :\n\n\"Provided that where any premises belonging to Government have been or are lawfully let by any person by vjrtue of an agrec1nent with the Govcrnn1ent or other\\vise, then, notwithstanding any judgment, decree or order of any court or other authority, the provisions of this Act shall apply to such tenancy.\"\n\nThe effect of the addition of the proviso with retrospective effect was as if the proviso had always been there right from the time when the Act was enacd. Therefore, when an application was filed by the appellant for execution of the decree for eviction against the re.; pondent on 31st August, 1963, an objection was raised on behalf of the respondent that by reason of the retrospective introduction of the proviso in section 3, the decree for eviction was rendered null and void as a decree passed by a court without jurisdiction and hence it was not executable against the respondent.\n\nThis objection was negatived by the executing court on the ground that that was not an objection which could be entertaine<; I in execution and the executing court must proceed to execute the decree which had become final between the parties.\n\nThe respondent preferred an aopeal but tl1e first appellate court took the view that, on the facts of the case, the proviso to section 3 was not attracted and hence the decrt:>c for eviction could nCJt be said to be one passed by a court without jurisdiction and on this view, it upheld the order of the executing court and rejected the appeal.\n\nThis led to the filing of a further appeal and in this appeal the High Court held that since the certificate of sale was riot issued in favour of the appellant, the building continucrl to belong\n\nto the Government but the appellant having paid rhe full purchase price of the building and the sale of the building in favour of the\n\nappellan~ having been confirmed and possession having been handed over to Ji; m in pursuance of the sale, the appellant was legally competent to let out the premises to the respondent and the letting of the the premises by the appellant in favour of the respondent on 1st September, 1956 was lawful and hence the condition for tl\"o applicability of. the proviso to section 3 was satisfied, and since the proviso was introduced in section 3 with retrospective effect, it must be held that the Act was applicable to the premises at the date of the institution of the suit and consequently the civil court had no jurisdiction to entertain the suit and in that view, the decree for eviction was a nullity.\n\nThe High Court accordingly allowed the appeal and held that the decree for eviction being null and void could not be executed against the respondent.\n\nThis view taken by the High Court is challenged in the present appeal perferred by special leave obtained from this Court.\n\nNow, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in lhe court passing it, its invalidity can be set up in an execution proceeding.\n\nWhere there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented.\n\nIts nullity can be set up whenever and whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings.\n\nThe executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree.\n\nBy doing so, the executing court -,, ould not incur the reproach that it is going behind the decree, bec<mse t\\1e decree being null and void, there would really be no decree at all.\n\nVide Kirall Singh v. Chaman Paswan(') and Seth Hira/al Patni v. Sri Kali Nath.(') It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity' on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to •.:xccutc it against the respondent.\n\nThe position which obtained when the suit for eviction was instituted by the appellant against the respondent was that section 3. as it stood prior to its amendment by Act 4 of 1963, was in force and that excluded the applicability of the Delhi Rent Control Act. 1958 to premises belonging to the Governrn.ent.\n\nThe premises in the. present caw were vested in. the Go¥ernment under sect10n 12 of the DJSplaced\n\nPerwns (Ccmpensation & Rehabilitation) Act, 1954 and they were sold by public auction to the appellant [!, nd though full purchase price\n\n(!) [19551 I S.C.R. 117.\n\n(2) [19621 2 S.C.R. 747.\n\n' r\n\nwas paid by the appellant and the sale was confirmed in his favour and possession was also handed over to him, the certilicate of sale was, for some inexplicable reason, not issued in his favour. The Trial Court, therefore, took the view, and this view was affirmed by the Additional District Judge as well as the High Court, that the appelland did not become the owner of the premises and they continued to\n\nbclmog to the Government and for this reason, it was held that the Delli: Reat Centro! Act, 1958 did not apply to the premises and the civil corn t had jurisdiction to entertain the suit for eviction.\n\nThe Trial Court also found, and this finding too was accepted by the Additional District Judge as well as the High Court, that though the certificate of sale was not issued in his favour, the appellant was competent to let out the premises and the letting of the premises. by him in favour of the respondent on 1st September, 1956 was lawful and since the tenancy of the respondent was validly terminated by the appellant by giving notice to quit, the appellant was entitled to a decree for eviction against the respondent.\n\nBut, as pointed out above, section 3 was amended with retrospective effect by the introductioo\n\ncf the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for cvictioi1 null and void.\n\nSince the proviso was introduced with retrospective effect, it must be deemed to be part of section 3 since the time that the Delhi Rent Control Act, 1958 was enacted. It was pointed out by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council(') in a passage which has become classical by reason of its felicity of language that \"if you are bidden to treat an imaginary state of affairs as real, you n1ust surely, unless prohibited from dojng so, also imagine as real the consequences and ineidnts which, if the putative state of affairs had in fact existed, must inevitably have flowed fro111 or accompanied it.\n\nOne of those in this case is cn1ancipation from the 1939 level of rents.\n\nThe statute says that yott must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs\". The proviso must, therefore, for all legal purposes, be dCJOmed to have been included in section 3 as from the date of enactment of the Delhi Rent Control Act. 1958.\n\nIf that be the true po'sition, then obviously it must be held that the provisions of the Delhi Rent Control Act, 1958 were anplicable to the tenancy of the respondent, for the premises though belonging to the Government, were lawfully let out by the appellant to the respondent and the condiljon of the proviso was satisfied.\n\nThat was the position which, by reason of the legal fiction brought about by the retrospective introduction of the proviso in section 3, n1ust be held to have prevailed at the date of the institution of the suit and the provisions of the Delhi Rent Control Act, 1958 being applicable, it must be concluded that the civil court had no inherent jurisdiction to entertain the suit (vide sect; on 50) and the decree for eviction was a nullity. Prima facie, it may appear somewh>at strange that a decree for eviction which was good and valid when it was made should be treated as null and void by\n\n(I) [19521 A.C. 132.\n\nA virtue of the retrospective introduction of the proviso in section 3. But such a result is necessarily involved in the legal fiction created by the retrospective operation of the proviso.\n\nIf, as a result of the said fiction, we must read the proviso as for1ning part of section 3 as from the date of enactment of the Delhi Rent Control Act, 1958, the conclusion is inescapable that thf civil court had no inherent jurisdiction to entertain the suit and the Trial Court as well as the Additional B District Judge and the High Court were in error in exercising jurisdiction in rela.tion to the suit when their jurisdiction was dearly excluded by section 50.\n\nThe 'appellant, however, urged that the introduction of the proviso in Section 3 'should not be given greater retrospective operation c than necessary and it should not be so construed as to affect decrees for eviction which had already became final between the parties.\n\nNow, it is true, and that is a settled principle of construction, that the court ought not to give a larger retrospective operation to a statutory provision than what can plainly be sen to have been tneant by the legislature.\n\nThis rule of interpretation is hallowed by time and sanctified by decisions, though we are not at all sure whether it should D have validity in the context of changed social norms and values. But even so, \\Ve do not see ho\\v the retrospccti\\e introduction of the proviso in section 3 can be construed so as to leave unitnpaire<l a decree for eviction already passed, when the question arises in execution whether it is a nullity.\n\nThe logical and inevitable consequence of the introduction of the proviso in section 3 with retrospective effect would be to read the proviso as if it were part or the section at the E date when the Delhi Rent Control Act, 1958 was enacted and the legal fiction created by the retrospective operation must be carried to its logical extent and all the consequences and incidents must be worked out as if the proviso formed part of the section right from the beginning.\n\nThis would clearly render the decree.. for eviction a , nullity and since in execution proceeding, an objection as to nullity of a decree can al\\vays be raised and the executing court can examine F whether the decree iS a nullity, the principle of finality of the decree cannot be invoked by the appellant to avoid the consequences and incidents flowing from the retrospective introduction of the proviso in section 3.\n\nMoreover, the \\Vords \"not\\vithstanding any judgment, decree or order of any court or other authority\" in the proviso niake it clear and leave no doubt that the legislature intended that the finality of \"judgment, decree or order of any court or other autho- G rity\" should not stand in the way of giving full effect to the retrospective introduction of the proviso in section 3 and applying the provisions of the Delhi Rent Control Act, 1958 in cases falling witb- i-n the proviso.\n\nWe are, therefore, of the view that the High Court was right in taking the view that by reason of the introduction of the proviso in section 3 with retrospective effect the decree for eviction was a nullity and the executing court vas ju'stified in declining to execute it against the respondent.\n\nWe accordingly dismiss the appeal with costs throughout but order A and direct the respondent to pay to the appellant all the arrears of rent in respect of the premises which remain to be paid by him to the appellant in the following instalments : Rs. 2,000/- on or before\n\n30th April, 1977; and out of the balance a forthcr sum of Rs. 2,000 within three months thereafter and the balance, if any, by 31st\n\nOctober, 1977.\n\nThe respondent through bis counsel undertakes to make payment of the arrears in the manner aforesaid.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 75, "entities": [{"text": "SUNDER DASS", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "SUNDER DASS", "offset_not_found": false}}, {"text": "RAM PRAKASH", "label": "RESPONDENT", "start_char": 13, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "RAM PRAKASH", "offset_not_found": false}}, {"text": "February 24, 1977", "label": "DATE", "start_char": 26, "end_char": 43, "source": "ner", "metadata": {"in_sentence": "SUNDER DASS\n\nRAM PRAKASH\n\nFebruary 24, 1977\n\n(P. N. BHAGWATI ANDS."}}, {"text": "P. N. BHAGWATI ANDS. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 46, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "section 3", "label": "PROVISION", "start_char": 1223, "end_char": 1232, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 1774, "end_char": 1783, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 2445, "end_char": 2447, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 2639, "end_char": 2648, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 3007, "end_char": 3016, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 3660, "end_char": 3669, "source": "regex", "metadata": {"statute": null}}, {"text": "Bishan Narain", "label": "OTHER_PERSON", "start_char": 3889, "end_char": 3902, "source": "ner", "metadata": {"in_sentence": "Bishan Narain and D. N. Mishra, for the appellant."}}, {"text": "D. N. Mishra", "label": "OTHER_PERSON", "start_char": 3907, "end_char": 3919, "source": "ner", "metadata": {"in_sentence": "Bishan Narain and D. N. Mishra, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 3941, "end_char": 3952, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, B. P. Singh and A. K. Srivastava, for the respondent."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 3954, "end_char": 3965, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, B. P. Singh and A. K. Srivastava, for the respondent."}}, {"text": "A. K. Srivastava", "label": "LAWYER", "start_char": 3970, "end_char": 3986, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, B. P. Singh and A. K. Srivastava, for the respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 4053, "end_char": 4061, "source": "ner", "metadata": {"in_sentence": "The fodgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal by certificate raises a short but interesting question of law relating to the interpretation and effect of the proviso to section 3 of the Delhi Rent Control Act, 1958."}}, {"text": "section 3", "label": "PROVISION", "start_char": 4200, "end_char": 4209, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 4217, "end_char": 4245, "source": "regex", "metadata": {}}, {"text": "Delhi", "label": "GPE", "start_char": 4407, "end_char": 4412, "source": "ner", "metadata": {"in_sentence": "624-36 (Old) 530-35 (New) situate in Sadar Bazar, Delhi."}}, {"text": "Central Government", "label": "ORG", "start_char": 4479, "end_char": 4497, "source": "ner", "metadata": {"in_sentence": "The building was an evacuee property and it was acquired by the Central Government under section 12 o[ the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and formed part of the compensation pool."}}, {"text": "section 12", "label": "PROVISION", "start_char": 4504, "end_char": 4514, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "5th September,\n\n1955", "label": "DATE", "start_char": 4764, "end_char": 4784, "source": "ner", "metadata": {"in_sentence": "It was sold by public auction and the appellant being the highest bidder was accepted as the auction purchaser by the managing officer on 5th September,\n\n1955."}}, {"text": "23rd September, 1955", "label": "DATE", "start_char": 4930, "end_char": 4950, "source": "ner", "metadata": {"in_sentence": "It does not appear from the record as to when the ppellant paid the full purchase price to the managing officer but presumably he did so before 23rd September, 1955 when the sale was confirmed in his favour by the managing officer."}}, {"text": "30th August, 1956", "label": "DATE", "start_char": 5234, "end_char": 5251, "source": "ner", "metadata": {"in_sentence": "The sale certificate was not issued in favour of the appellant for a considerable, time and we are told that even until now it has not been issued, but possession of the building was handed over to the appellant on 30th August, 1956 and a letter dated 3rd September, 1956 was addressed by the mauagin)!"}}, {"text": "3rd September, 1956", "label": "DATE", "start_char": 5271, "end_char": 5290, "source": "ner", "metadata": {"in_sentence": "The sale certificate was not issued in favour of the appellant for a considerable, time and we are told that even until now it has not been issued, but possession of the building was handed over to the appellant on 30th August, 1956 and a letter dated 3rd September, 1956 was addressed by the mauagin)!"}}, {"text": "1st September, 1956", "label": "DATE", "start_char": 5810, "end_char": 5829, "source": "ner", "metadata": {"in_sentence": "On\n\n1st September, 1956, the appellant let out the shop in dispute (hereinafter referred to as the premises) to the respondent and the latter continued in possession of the premises as a monthly tenant."}}, {"text": "10th August.", "label": "DATE", "start_char": 6021, "end_char": 6033, "source": "ner", "metadata": {"in_sentence": "However, on 10th August."}}, {"text": "31st August, 1959", "label": "DATE", "start_char": 6207, "end_char": 6224, "source": "ner", "metadata": {"in_sentence": "1959 the appe_llant gave a notice to quit terminating the tenancy of the respondent and calling upon him tn hand over vacant possession of the premises by the mid-nightj of 31st August, 1959."}}, {"text": "Senior Subordinate Judge, Delhi", "label": "COURT", "start_char": 6362, "end_char": 6393, "source": "ner", "metadata": {"in_sentence": "The respondent declined to comply with the requisition contained in the notice and hence the aPoellant filed a suit in the Court of the Senior Subordinate Judge, Delhi on 1 Stt September, 1959 for recovery of possession of the premises from the respondent."}}, {"text": "1 Stt September, 1959", "label": "DATE", "start_char": 6397, "end_char": 6418, "source": "ner", "metadata": {"in_sentence": "The respondent declined to comply with the requisition contained in the notice and hence the aPoellant filed a suit in the Court of the Senior Subordinate Judge, Delhi on 1 Stt September, 1959 for recovery of possession of the premises from the respondent."}}, {"text": "9th February, 1959", "label": "DATE", "start_char": 7119, "end_char": 7137, "source": "ner", "metadata": {"in_sentence": "The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958 which had come into force on 9th February, 1959 was applicable to the tenancy of the premises and by reason of section 50 of that Act, the civil court had no jurisdiction to entertain the suit."}}, {"text": "section 50", "label": "PROVISION", "start_char": 7201, "end_char": 7211, "source": "regex", "metadata": {"linked_statute_text": "The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958", "statute": "The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958"}}, {"text": "section 3", "label": "PROVISION", "start_char": 7619, "end_char": 7628, "source": "regex", "metadata": {"linked_statute_text": "The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958", "statute": "The respondent also disputed the jurisdiction of the court on the ground that the Delhi Rent Control Act, 1958"}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 7732, "end_char": 7760, "source": "regex", "metadata": {}}, {"text": "section\n\n106", "label": "PROVISION", "start_char": 8441, "end_char": 8453, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8461, "end_char": 8485, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Additional District Judge, Delhi", "label": "COURT", "start_char": 8739, "end_char": 8771, "source": "ner", "metadata": {"in_sentence": "The respondent preferred an appeal but the appeal was dismissed by the Additional District Judge, Delhi on substantially the same view as that taken by the Trial Court."}}, {"text": "section 3", "label": "PROVISION", "start_char": 9080, "end_char": 9089, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 9097, "end_char": 9125, "source": "regex", "metadata": {}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 9288, "end_char": 9316, "source": "regex", "metadata": {}}, {"text": "Section 14", "label": "PROVISION", "start_char": 9461, "end_char": 9471, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 14", "label": "PROVISION", "start_char": 10157, "end_char": 10167, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 50", "label": "PROVISION", "start_char": 10185, "end_char": 10195, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 3", "label": "PROVISION", "start_char": 10799, "end_char": 10808, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 11262, "end_char": 11272, "source": "regex", "metadata": {"statute": null}}, {"text": "section 50", "label": "PROVISION", "start_char": 11294, "end_char": 11304, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 11670, "end_char": 11679, "source": "regex", "metadata": {"statute": null}}, {"text": "31st August, 1963", "label": "DATE", "start_char": 12317, "end_char": 12334, "source": "ner", "metadata": {"in_sentence": "pondent on 31st August, 1963, an objection was raised on behalf of the respondent that by reason of the retrospective introduction of the proviso in section 3, the decree for eviction was rendered null and void as a decree passed by a court without jurisdiction and hence it was not executable against the respondent."}}, {"text": "section 3", "label": "PROVISION", "start_char": 12455, "end_char": 12464, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12996, "end_char": 13005, "source": "regex", "metadata": {"statute": null}}, {"text": "Ji", "label": "OTHER_PERSON", "start_char": 13620, "end_char": 13622, "source": "ner", "metadata": {"in_sentence": "This led to the filing of a further appeal and in this appeal the High Court held that since the certificate of sale was riot issued in favour of the appellant, the building continucrl to belong\n\nto the Government but the appellant having paid rhe full purchase price of the building and the sale of the building in favour of the\n\nappellan~ having been confirmed and possession having been handed over to Ji; m in pursuance of the sale, the appellant was legally competent to let out the premises to the respondent and the letting of the the premises by the appellant in favour of the respondent on 1st September, 1956 was lawful and hence the condition for tl\"o applicability of."}}, {"text": "section 3", "label": "PROVISION", "start_char": 13911, "end_char": 13920, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 13976, "end_char": 13985, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 16209, "end_char": 16218, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 17859, "end_char": 17868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 18190, "end_char": 18199, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 18224, "end_char": 18252, "source": "regex", "metadata": {}}, {"text": "Asquith of Bishopstone", "label": "OTHER_PERSON", "start_char": 18293, "end_char": 18315, "source": "ner", "metadata": {"in_sentence": "It was pointed out by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council(') in a passage which has become classical by reason of its felicity of language that \"if you are bidden to treat an imaginary state of affairs as real, you n1ust surely, unless prohibited from dojng so, also imagine as real the consequences and ineidnts which, if the putative state of affairs had in fact existed, must inevitably have flowed fro111 or accompanied it."}}, {"text": "section 3", "label": "PROVISION", "start_char": 19137, "end_char": 19146, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 19304, "end_char": 19332, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 19668, "end_char": 19677, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 19780, "end_char": 19808, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 20218, "end_char": 20227, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 3", "label": "PROVISION", "start_char": 20430, "end_char": 20439, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 20477, "end_char": 20505, "source": "regex", "metadata": {}}, {"text": "section 50", "label": "PROVISION", "start_char": 20804, "end_char": 20814, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 20888, "end_char": 20897, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 3", "label": "PROVISION", "start_char": 21590, "end_char": 21599, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 21824, "end_char": 21833, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 21946, "end_char": 21974, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 22624, "end_char": 22633, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "section 3", "label": "PROVISION", "start_char": 23004, "end_char": 23013, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Rent Control Act, 1958", "label": "STATUTE", "start_char": 23049, "end_char": 23077, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 23252, "end_char": 23261, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Rent Control Act, 1958", "statute": "the Delhi Rent Control Act, 1958"}}, {"text": "31st\n\nOctober, 1977", "label": "DATE", "start_char": 23818, "end_char": 23837, "source": "ner", "metadata": {"in_sentence": "2,000 within three months thereafter and the balance, if any, by 31st\n\nOctober, 1977."}}]}
{"document_id": "1977_3_627_631_EN", "year": 1977, "text": "MADHYA PRADESH STATE ROAD TRANSPORT\n\nCORPORATION, BAIRAGARH, BHOPAL\n\nSUDHAKAR & ORS. ETC.\n\nApril !5, 1977\n\n[V. R. KRISHNA !YER AND A. C. GUPTA, JJ.]\n\nReasonable prophecy, principle of-Motor Vehicles Act, 1939, Section 1 lOB -Award of conzpensation-Death of, a child and also of earning wife in _an accident-Claimant husband not dependant on wife's income and remarrying within 11 months-Assessment of damages should be based 011 the principles of rec.jonable prophecy Fatal Accidents Act 1855, Section IA.\n\nBus accident-Victinz boy aged about four years coming fro1n a well-to-do fa1nily-Disabled by a compound fracture of right tibia and fabula lower third\n\nnear ankle joint-Award of compensation of Rs. 20,000 as enhanced by the lligh Court by way of damages is proper-Motor Vehicles Act, 1939, Section\n\nllOR.\n\nIn a bus accident on June 23, 1961, one Mrs. Usha Kotasthane and her one year old son died.\n\nOne Sailesh Kumar, a boy of about four years coming from a well-to-do family was disabled due to a compound fracture of his right tibia and fabula lower third near the ankle joint.\n\nSudhakar Kotasthane, the huiband of the deceased and respondent No. I in C.A. 2254 of 1968 and Smt.\n\nIndu Bala. Bhandari, mother of Sailesh Kumar and respondent No. 1 in C.A. 2255 of 1968 applied to the Motor Accident Claims Tribunal, Gwalior for compensation.\n\nThe Tribunal took into consideration (i) the loss of life of Sudhakar's wife which resulted into conditions of inconvenience, suffering, shock, derangement in house and the life for a period of nearly 11 months i.e., till he remarried and (ii) The fact that Mrs. Usha WREi working as Physical Instructress in a school getting a salary of Rs. 190/- p.m. in the scale of Rs. 150-10-250 and awarded a sum of Rs. 15,000/- as compensation as against the claim of Rs. 75,0001computed on the deceased's earnings. The Tribunal also awarded a sum of Rs. 10,000/~ as damages and Rs. 890/- as special damages to Smt. Indubala. Both the respondents and the a_.ppellant preferred appeals to the High Court from the decision of the Tribunal. The High Court enhanced the compensation to Rs. 50,000/- in the case of Sudhakar and to Rs. 20.000/- in the case of Indubala.\n\nAllowing the appeal in C.A. No. 2254 of 1968 and dismissing t.he appeal in C.A. No. 2255 of 1968, the Court.\n\nHELD : (I) A method of assessing damages usually followed in England is to calculate the net pecuniary loss upon an annual basis and \"to arrive at a total aw~ .. rd by multiplying the figure assessed as the amount of the annual 'dependency' by a number of year's purchase\", that is. the number of years that benefit was expected to last taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand.\n\nThe huband may not be dependant on the wife's income, the ba.sis of assessing the damges payable to the husband for the death of his wife would be similar. [631 AB]\n\nRule in Mallet v. Mc Monga/e 1970 (A.C.) H. L. 166 at 174 quoted with approval.\n\nP. B. Kadar v. Thatchamma AIR 1970 Kerala 241, approved.\n\nIn assessing damages certain other factors have to be taken note of such\n\na~. the uncertainties of life and the fact of accelerated payment-tht the H husband would be getting a lump sum payment \"'hich but for his wife's death would have been available to him in driblets over a number of years. Allow ance must be made for the uncertainties and the total figure sCaled down accordingly. The deceased might not have been able to earn t!ll the age of retirement\n\nfor some reason or other, like illness or for having to spend more tin1e to look after the family which was expected to grow.\n\nThus, the amount assessed has to be reduced taking into account these imponderable factors.\n\n[630 G-H]\n\nIn the instant case, the deceased had 35 years of service before her when she died.\n\nThe claimant's loss reasonably works out to Rs. 50/- a month i.e., Rs. 600/- a year.\n\nKeeping in mind all the relevant factors and conungenc1es and taking 20 as the suitable n1ultiplier, the figure comes to Rs. 12,000. The Tribunal's award cannot, therefore, be challenged as too -low though it was not based on proper grounds. The High Court was alSo not right in estimating the damages at Rs. 50,000/- in the manner it did.\n\n[631 BC]\n\nC.A. 2255 of 1968 :\n\nThough the possibility \\\\'a~ there, in the instant case, of the defornuty being removed by surgical operation v.hen the boy grew up to be 16 years, the other possibility of \"likelihood to develop a permanent ]imp\" cannot be altogether ruled out.\n\nThat being the position, the increase of general damages to Rs. 20,00Q/ ., in the instant case, in addition to Rs. 890 /· as special damages is proper. [631 DFl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2254 & 2255 of 1968.\n\n(From the Judgment and Order dated the 10-1-1967 of the Madhya Pradesh High Court in Misc. First Appeal No. 12/64)\n\nRam Panjwani. Rameshwar Nath, for the appel!ant in both the appeals .\n\n. A. G. Rat11aparkhi, for respondent No. 1 in CA 2254/68.\n\nS. K. Gambhir, for respondent No. 1 in CA No. 2255/68.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries.\n\nAmong the injured was one Sailesh Kumar, a boy ot about four years.\n\nClaims for compensation were filed before the Motor Accident Claims Tribunal at Gwalior.\n\nThe application for compensation for the death of Mrs. Usha Kotasthane and her child was made by her husband Shri Sudhakar Kotasthane, and the claim in respect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari.\n\nSudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect ot Kotasthane's dead child.\n\nThe two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs.\n\nUsha Kotasthane and the injury sustained by Sai!esh Kumar. C.A. 2254 of 1968 relates to the award in Mrs. Kot•asthane's case and C.A. 2255 of 1968 to that in the case of Sailesh Kumar.\n\nAs regards the death of Mrs. Usha Kotasthane, the claims tribunal awarded Rs. 15000/- as damages to her husband Sudhakar.\n\nAt the time of her death she was employed as a Physical Instructress in a school at Indore, getting a salary of Rs. 190/- per month, in the grade of Rs. 150-10-250. Admittedly Sudhakar remarried within a year of the death of his first wife.\n\nThis is how the tribunal dealt with the claim :\n\n\"In the present case, it is a case of the death of the wife.\n\nThe husband was not dependent on the earning of his wife.\n\nHe was himself earning independently.\n\nThe applicant has no where stated that on account of the death of his former wife, he has been deprived of her income, nor. that he was dependant upon her. It is true, that the wife of the applicant C was educated, healthy, employed, and earning.\n\nAs far as, the Joos of companionship is concerned, it is again true that he faced this loss for nearly, 11 months, after which, he married for the second time.\n\nNo cross-examilfaiion has been led by tlie non-applicant on the point that the second wife is as accomplished, educated, and healthy as the former one was.\n\nThe death of the wife of the applicant. must have D caused him mental shock, pain and inconvenient in his house hold.\n\nThe work in the house. which he could take from bis wife in looking to the household was also not available to the applicant during this period of 11 month.\n\nThe advantage of established married life with a child in the lap, was also lossed to the applicant during this time.\n\nTaking into consideration all these facts, in favour of the applicant, and the E fact, against him that he was married again after 11 months, of the death of his wife, I think, it will be proper to award damages amounting to Rs. 15000/-, for the loss of life of his wife, which resulted into conditions of inconvenience, suffering shock derangement in house and the life, for a period of nearly 11 months.\"\n\nBoth :>udhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the High Court from the decision of the tribunal. The High Court proceeded as follows.\n\nThe \"span of her earning life\" was counted as 35 years taking 58 years as the age of superannuation. For the first six years from the date of accident, the High Court took Rs. 200 /- as the average monthly income, and for G the remaining twenty-nine years of service the average income per month was fixed at Rs. 250/-. On this basis the High Court computed her total earning to be Rs. 96,000/-.\n\nGiving allowance for her own expenses an~ also taking into account the promotions and consequently the mcreased salary she might have earned, the High Court thought that she could have \"easily spread\" half of this amount for the household and estimated the loss of income on account of her death H in round figures, at Rs. 50,000/-. The High Court enhanced the compensation accordingly.\n\nRegarding Sudhakar's second marriage the High Court observed :\n\n\"But even so, the second marriage cannot be said to be a substitute for the first one.\n\nThe second wife is not an earning member of the family nor is it shown that Sudhakar has in any way benefitted from the second marriage financially.\n\nTherefore the financial loss would be there despite the second marriage.''\n\nOn these findings the High Court allowed the appeal filed by Sudhakar Kotasthane and dismissed that preferred by the Madhya Pradesh State Road Transport Corporation.\n\nThe extract from the tribunal's order quoted above suggests that in fixing the quantum of compensation the tribunal was under the impression that the applicant had made no claim on the ground of pecuniary loss resulting from his wife's death.\n\nIn this the tribunal was clearly in error. In paragraph 11 of the claim petition, Rs. 75.000/-\n\nis claimed as compensation and the paragraph makes it clear that the sum is computed on the deceased's expected earnings. If there were no such claim the tribunal would have been hardly justified in awarding Rs. 15000/- as damages for the mental shock and inconvenience suffered by the applicant for a period of 11 months only, after which he remarried.\n\nThe High Court also does not seem to be right in esti .. mating the damages at Rs. 50,000 /- in the manner it did.\n\nWhether the deceased's average monthly salary is taken to be Rs. 200/- or Rs. 250/- we find it difficult to agree that only half of that amount would have been sufficient for her monthly expenses till she retired from service, so that the remaining half may be taken as the measure of her husband's monthly loss.\n\nIt is not impossible that she would have contributed half of her salary to the household but then it is reasonable to suppose that the husband who was employed at a slightly hicller salary would have contributed his share to the common pool wbich would have been utilised for the lodging and board of both of them.\n\nWe do not therefore think it is correct to assume that the husband's loss amounted to half the monthly salary the deceased was likely to draw until she retired. If on an average she contributed Rs. 100/- every month to the common pool, then his loss would be roughly not more than Rs. 50/- a month and, assuming she worked till she was 58 years, the total loss would not exceed Rs. 19.000/-.\n\nBut in assessing damages certain other factors have to be taken note of which the High Court overlooked, such as the uncertainties of life and the fact of accelerated payment-that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets over a number of years.\n\nAllowance must be made tor the uncertainties and the total figure scaled down accordingly. Tile deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors.\n\nSome element of conjecture is inevitable in assessing damages; Lord Pearce in Mallet v. Mc Monagle, 1970 (A.C.) (H.L.) 166 (17 4), calls it \"reasonable prophecy\". Taking note of all the relevant factors, the sum, of Rs. 15000/- awarded by the tribunal appears to be a reasonable figure which we do not find any reason to disturb.\n\nA method of assessing damages, usually followed in England, as A appears from Mallet v. Mc Monagle (supra), is to calculate the net pecuniary loss upon an annual basis and to \"arrive at the total award by multiplying the fignre assessed as the amount of the annual \"dependency\" by a nuinber of \"year's purchase\"\", (p. 178) that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand.\n\nThe husband may not be dependant on the wife's income, the basis ot B assessing the damages payable to the husband for the death of his wife would be similar.\n\nHere, the lady had 35 years of service before her when she died.\n\nWe have found that the claimant's loss reasonably works out to Rs. 50/- a month i.e. Rs. 600/- a year. Keeping in mind all the relevant facts and contingencies and taking 20 as the smtable multiplier, the figure come to Rs. 12,000/-. The tribunal's award cannot therefore be challenged as too low though it was not based on c proper grounds.\n\nIn a decision of the Kerala High Court relied on by the appellant (P. B. Kader v. Thatchamma : AIR 1970 Kerala 241 J, to which one of us was a party, the same method of assessing compensation was adopted.\n\nThe other appeal (C.A. No. 2255 of 1968) relates to the injury sustained by a boy aged about four years.\n\nHe suffered compound D fracture of his right tibia and fabula lower third hear the ankle joint with infection of the wound.\n\nSkin-grafting had to be done and the boy had to remain in hospital from June 25, to August 4, 1961.\n\nAccording to the doctor who examined him, the child was likely to develop a permanent limp which might require another operation at the age of 16 years or so.\n\nIn any case, in the opinion of the doctor the deformity was certain to persist till the boy was 16 years when E 'another operation might remove it.\n\nThe tribunal awarded Rs. 10,000/- as general damages and Rs. 890 /- as special damages.\n\nThe High Court increased the general damages to Rs. 20,000 /-. It appears from the evidence that the boy comes from a well-to-do family. Though the possibility was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possibility cannot be altogether ruled out.\n\nThat being the position, we are not inclined\n\nF . to interfere with the sum awarded by the High Court.\n\nIn. the result., appeal '.\"o. 2254 of 1968 is allowe~, the judgment of the High Court 1s set aside and the award of the tribunal is restored; appeal No. 2255 of 1968 is dismissed.\n\nThere will be no order as to costs in either appeal.\n\nS.R.\n\nC.A. 2254 of 1968 allowed.\n\nC.A. 2255 of 1968 dismissed.", "total_entities": 35, "entities": [{"text": "MADHYA PRADESH STATE ROAD TRANSPORT\n\nCORPORATION, BAIRAGARH, BHOPAL", "label": "PETITIONER", "start_char": 0, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, BAIRAGARH, BHOPAL", "offset_not_found": false}}, {"text": "SUDHAKAR & ORS. ETC", "label": "RESPONDENT", "start_char": 69, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "SUDHAKAR & ORS. ETC", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 131, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 184, "end_char": 208, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 1", "label": "PROVISION", "start_char": 210, "end_char": 219, "source": "regex", "metadata": {"linked_statute_text": "Motor Vehicles Act, 1939", "statute": "Motor Vehicles Act, 1939"}}, {"text": "Fatal Accidents Act 1855", "label": "STATUTE", "start_char": 468, "end_char": 492, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Court by way of damages is proper-Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 737, "end_char": 795, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Usha Kotasthane", "label": "OTHER_PERSON", "start_char": 858, "end_char": 873, "source": "ner", "metadata": {"in_sentence": "In a bus accident on June 23, 1961, one Mrs. Usha Kotasthane and her one year old son died."}}, {"text": "Sailesh Kumar", "label": "OTHER_PERSON", "start_char": 910, "end_char": 923, "source": "ner", "metadata": {"in_sentence": "One Sailesh Kumar, a boy of about four years coming from a well-to-do family was disabled due to a compound fracture of his right tibia and fabula lower third near the ankle joint.", "canonical_name": "Sailesh Kumar"}}, {"text": "Sudhakar Kotasthane", "label": "PETITIONER", "start_char": 1088, "end_char": 1107, "source": "ner", "metadata": {"in_sentence": "Sudhakar Kotasthane, the huiband of the deceased and respondent No.", "canonical_name": "Sudhakar Kotasthane"}}, {"text": "Motor Accident Claims Tribunal, Gwalior", "label": "COURT", "start_char": 1291, "end_char": 1330, "source": "ner", "metadata": {"in_sentence": "1 in C.A. 2255 of 1968 applied to the Motor Accident Claims Tribunal, Gwalior for compensation."}}, {"text": "Sudhakar", "label": "OTHER_PERSON", "start_char": 1411, "end_char": 1419, "source": "ner", "metadata": {"in_sentence": "The Tribunal took into consideration (i) the loss of life of Sudhakar's wife which resulted into conditions of inconvenience, suffering, shock, derangement in house and the life for a period of nearly 11 months i.e., till he remarried and (ii) The fact that Mrs. Usha WREi working as Physical Instructress in a school getting a salary of Rs."}}, {"text": "Usha WREi", "label": "OTHER_PERSON", "start_char": 1613, "end_char": 1622, "source": "ner", "metadata": {"in_sentence": "The Tribunal took into consideration (i) the loss of life of Sudhakar's wife which resulted into conditions of inconvenience, suffering, shock, derangement in house and the life for a period of nearly 11 months i.e., till he remarried and (ii) The fact that Mrs. Usha WREi working as Physical Instructress in a school getting a salary of Rs."}}, {"text": "Indubala", "label": "OTHER_PERSON", "start_char": 1956, "end_char": 1964, "source": "ner", "metadata": {"in_sentence": "Indubala."}}, {"text": "England", "label": "GPE", "start_char": 2376, "end_char": 2383, "source": "ner", "metadata": {"in_sentence": "HELD : (I) A method of assessing damages usually followed in England is to calculate the net pecuniary loss upon an annual basis and \"to arrive at a total aw~ .. rd by multiplying the figure assessed as the amount of the annual 'dependency' by a number of year's purchase\", that is."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 4893, "end_char": 4905, "source": "ner", "metadata": {"in_sentence": "12/64)\n\nRam Panjwani."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4907, "end_char": 4921, "source": "ner", "metadata": {"in_sentence": "Rameshwar Nath, for the appel!ant in both the appeals ."}}, {"text": "A. G. Rat11aparkhi", "label": "LAWYER", "start_char": 4966, "end_char": 4984, "source": "ner", "metadata": {"in_sentence": "A. G. Rat11aparkhi, for respondent No."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 5023, "end_char": 5036, "source": "ner", "metadata": {"in_sentence": "S. K. Gambhir, for respondent No."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 5123, "end_char": 5128, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries."}}, {"text": "Gwalior", "label": "GPE", "start_char": 5200, "end_char": 5207, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries."}}, {"text": "Indore", "label": "GPE", "start_char": 5211, "end_char": 5217, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J. On June 23, 1961 a bus owned by the appellant which was going from Gwalior to Indore met with an accident as a result of which two of the passengers, Mrs. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries."}}, {"text": "Motor Accident Claims Tribunal at Gwalior", "label": "COURT", "start_char": 5519, "end_char": 5560, "source": "ner", "metadata": {"in_sentence": "Claims for compensation were filed before the Motor Accident Claims Tribunal at Gwalior."}}, {"text": "Shrimati Indubala Bhandari", "label": "OTHER_PERSON", "start_char": 5806, "end_char": 5832, "source": "ner", "metadata": {"in_sentence": "The application for compensation for the death of Mrs. Usha Kotasthane and her child was made by her husband Shri Sudhakar Kotasthane, and the claim in respect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari."}}, {"text": "Sudhakar Kotasthane", "label": "PETITIONER", "start_char": 5835, "end_char": 5854, "source": "ner", "metadata": {"in_sentence": "Sudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect ot Kotasthane's dead child.", "canonical_name": "Sudhakar Kotasthane"}}, {"text": "Indubala Bhandari", "label": "OTHER_PERSON", "start_char": 5859, "end_char": 5876, "source": "ner", "metadata": {"in_sentence": "Sudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect ot Kotasthane's dead child."}}, {"text": "Kotasthane", "label": "OTHER_PERSON", "start_char": 6061, "end_char": 6071, "source": "ner", "metadata": {"in_sentence": "Sudhakar Kotasthane and Indubala Bhandari were also travelling in the same bus and both sustained injuries and were awarded compensation by the tribunal, but these appeals do not concern their cases or the claim in respect ot Kotasthane's dead child.", "canonical_name": "Kot•asthane"}}, {"text": "Madhya Pradesh State Road Transport Corporation", "label": "ORG", "start_char": 6136, "end_char": 6183, "source": "ner", "metadata": {"in_sentence": "The two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs.\n\nUsha Kotasthane and the injury sustained by Sai!esh Kumar."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 6215, "end_char": 6240, "source": "ner", "metadata": {"in_sentence": "The two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs.\n\nUsha Kotasthane and the injury sustained by Sai!esh Kumar."}}, {"text": "Sai!esh Kumar", "label": "OTHER_PERSON", "start_char": 6433, "end_char": 6446, "source": "ner", "metadata": {"in_sentence": "The two appeals before us at the instance of the Madhya Pradesh State Road Transport Corporation, on certificate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of damages awarded by the claims tribunal in respect of the death of Mrs.\n\nUsha Kotasthane and the injury sustained by Sai!esh Kumar.", "canonical_name": "Sailesh Kumar"}}, {"text": "Kot•asthane", "label": "OTHER_PERSON", "start_char": 6495, "end_char": 6506, "source": "ner", "metadata": {"in_sentence": "C.A. 2254 of 1968 relates to the award in Mrs. Kot•asthane's case and C.A. 2255 of 1968 to that in the case of Sailesh Kumar.", "canonical_name": "Kot•asthane"}}, {"text": "udhakar Kotasthane", "label": "PETITIONER", "start_char": 8526, "end_char": 8544, "source": "ner", "metadata": {"in_sentence": "Both :>udhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the High Court from the decision of the tribunal.", "canonical_name": "Sudhakar Kotasthane"}}, {"text": "Pearce", "label": "OTHER_PERSON", "start_char": 12649, "end_char": 12655, "source": "ner", "metadata": {"in_sentence": "Some element of conjecture is inevitable in assessing damages; Lord Pearce in Mallet v. Mc Monagle, 1970 (A.C.) (H.L.) 166 (17 4), calls it \"reasonable prophecy\"."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 13993, "end_char": 14010, "source": "ner", "metadata": {"in_sentence": "In a decision of the Kerala High Court relied on by the appellant (P. B. Kader v. Thatchamma : AIR 1970 Kerala 241 J, to which one of us was a party, the same method of assessing compensation was adopted."}}, {"text": "25, to August 4, 1961", "label": "DATE", "start_char": 14486, "end_char": 14507, "source": "ner", "metadata": {"in_sentence": "Skin-grafting had to be done and the boy had to remain in hospital from June 25, to August 4, 1961."}}]}
{"document_id": "1977_3_632_635_EN", "year": 1977, "text": "GURPUR GUNI VENKATARAYA NARASHIMA PRABHU\n\n& ORS.\n\nB. G. ACHIA, ASSISTANT COMMISSIONER; HINDU\n\nRELIGIOUS AND CHARITABLE ENDOWMENT\n\nMANGALORE AND ANR.\n\nApril 15, 1977\n\n(V. R. KRISHNA IYER AND A. C. GUPTA, JJ.J\n\nMadras Hindu Religious and Charitable Endow1nents Act, 1951-S. 6(17) 'Public Temple'.\n\nAil inference of dedication to the public front the fac1 of mbnission into the tetnple and uses by the public is not correct.\n\nS. 6(17) of the Madras Hindu Religious and Charitable Endowments Act, 1951 defines a temple as \"temple\" means a place b_y whatever desigruition known, used as a place of public religious worship, and dedication to, or for the benefit of or used as of right by, the Hindu Community or any section thereof, as a place of public religious worship.\n\nThe Deputy Comrnisioner, in a proceeding u/s 57 of Uadras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple'.\n\nBut in the suit No. DS. 106/1961 imtituted by the appellant trustees of the ten1ple for a declaration that the temple was a private temple and not a temple as defined in s. 6(17) or in the alternative that it was a denominationctl or sectional temple belonging to the Goud Sataswat Brafimin Community of Gurpur, the Subordinate Judge South Kanara, held on the evidence that this was a denominational or sectional temple belohging to the Goud Saraswat Community and allo, ved the alternative declaration.\n\nThe High Court on appeal found that this was a temple as defined ins. 6(17) of the Act 3nd taking a different view of th, e evidence held that 1he temple was a place of religious \\'ilOrship dedicated to and used as of right by the general Hir_1du Community and was thus a public temple.\n\nOn appeal by certificate the Court,\n\nHELD : (I) It is now well settled that \"the mere fact of the public having been freely admitted to the temple cannot mean that Courts should readily infer therefrom dedication to the pubJic. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.\"\n\n[635 B-C]\n\nBihar State Board Religious Trust, Patna v.\n\nMahant Sri Biseshlvar Das, [1971] 3 S.C.R. ~80 (689) referred to.\n\n(2) Jn the instant case the circumstances disclosed in evidence do not support the inference that Hindus generally used the temple as a place of worship as of right. The evidence is to the effect (i) that the temple was founded by 37 Goud Sarasv.'at Brahmin families of Gurpur, (ii) that the tn1stee managing the temple belonged always to themembers of said comn1unity, (iii) that thelended properties owned by the temple had aU been endowe? by members of the Community, (iv) that none of the \\Vitnesses claimed a nght of ownership in the temple and the sma11 sevas \\Vere voluntary, (v) that it was the members of the Goud Saraswat Brahmin Community who were allowed to participate in the more important ceremonies.\n\n[634 B-D; 6350]\n\n, (3) The High Court's finding that \"numerous en?owment\" h.ave .been made by Hindus not belonging to Goud Saraswat Brahm1n Com_mun1ty, is not subported by the evidence in the case. In the context of the Award (Ext. A-13) the term general body mentioned therein could only refer to the members\n\nG. G. PRABHU v. B. G. ACHIA (Gupta, !.) 633\n\nof the Goud Saraswat Brahmin Community and not to the Hindu Community A generally, because the proceeding concluded by the decree was confined to the members of the Community. [635 A-BJ\n\nCIVIL APPELLAT.E JURISDICTION : Civil Appeal No. 2176 of 1968.\n\nAppeal from the Judgment and Decree dated the 18-8-1965 of the My5ore High Court in M.F.A. No. 341 of 1964.\n\nS. T. Desai, K. N. Bhat and R. B. Datar for the Appellants.\n\nNarayan Nettar for Respondent.\n\nThe Judgment of the Court was delivere.d by\n\nGUPTA, 1. The only question disputed in this appeal is whether a C temple, known as Varadaraj Venkataramana Temple at Gurpur in Mangalore Taluk, in Karnataka, is a public temple or a temple belongiug to Goud Saraswat Brabmin Community of Gurpur.\n\nThis is an ancient temple founded about 400 years ago. In a proceeding under section 57 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act), the Deputy Commissioner by his order dated January 17, 1961 held that the temple was a public temple and the Commissioner on appeal affirmed the ordi; r of the Deputy Commissioner on June 12, 1961. Thereafter the appellants who are the trustees of the temple instituted a suit, O.S. No. 106 of 1961, in the court of the Subordinate Judge, South Kanara, for a declaration that the temple was a private temple and not a temple as defined in section 6(17) of the Act or,_in the alternative, for a declaration that it was a denominational or sectional temple. belonging to the Goud Saraswat Brahmin community of Gurpur. There was also a prayer for cancellation or modification of the order of Commissioner dated June 12, 1961 affirming that of the Deputy Commissioner that this was a public temple. The Subordinate Judge held on the evidence that this was a denominational or sectional temple belonging to the Goud Saraswat Brahmin community of Gurpur and not a private temple. He further held that there was no evidence before the Deputy Commissioner justifying his order which was affim1ed by the Commissioner that it was a public temple. He observed that \"it is incorrect to draw an inference of dedication to the public merely from the fact of user by the public\".\n\nAccordingly, he allowed the alternative declaration asked for by the plaintiffs and modified the order of June 12, 1961 made by the Commissioner affirming the order of the Deputy Commissioner dated January 17, 1961. From the decision of the trial court, the respondents preferred an appeal to the High Court. The appellants before us also filed a cross objection contending that the Subordinate Judge should have held that the temple was a private temple and not a denominational or sectional temple. The High Court found that this was a temple as defined in section 6(17) of the Act. On the evidence also the High Court took a differi; t view froi:i the tial court and held that the temple w<W> a place of reltg10us worship dedicated to and used as of right by the general Hindu community and was thus a public temple.\n\nOn this\n\nSUPREME COURT REPORTS\n\n\nview the High Court allowed the appeal and dismissed the cross-objection. The appeal before us is by the plaintiffs on certificate granted by the Karnataka High Court.\n\nThe Subordinate Judge held on the evidence that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur, that the trustees managing the temple belonged a•lways to the members of the said community, that the landed properties owned by the temple had all been endowed by members of this community, and that there was no reliable evidence of endowment of any immovable property by any person outside the community. The Subordinate Judge on .i:onsidering the evidence of defendants' witness Nos. 2 to 4, on whom the defendants relied to prove that the temple was dedicated to the general Hindu community, found that none of them claimed a right of worship in the temple and the 'sevas' offered by them were voluntary and the income from such sevas was also small. He further found that i.t was only the members of the, Goud Saraswat Brahmin community who were allowed to participate in the more important ceremonies. It was observed that the fact that Hindus other than those belonging to the Goud Saraswat Brahmin community were not prevented from worshipping in the temple did not \"deprive the temple of its sectional character\", that it was \"incorrect to draw an inference of dedication to the public merely from the fact of the user by the public\". Thus the decision of the Subordinate . Judge was that the temple was not a public temple because it was not dedicated to the general Hindu community but for the benefit of Goud Saraswat Brahmin community of Gurpur.\n\nThe High Court held that the definition of temple in section 6( 17) of the Act covers the temple in question.\n\nThe definition is as follows:\n\n\" \"temple\" means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of public religious worship;\"\n\nEven on the findings recorded by the Subordinate Judge, this would be a temple dedicated to or for the benefit of a section of the Hindu community and as such covered by the definition. The High Court reversed the decision of the Subordinate Judge and held that \"facts of the present case lend support to the conclusion that the temple must have been dedicated for the benefit of and used by the Hindu community and is being used by them, as of right, as a place of public religious worship\". The facts that weighed with the High Court were that Hindu's\n\ngenerally came to worship in the temple and were not turned away and that when the deity is taken out in procession, members of the Hindu community other than Goud Saraswat Brahmins also offer \"araties\".\n\nThe claim made by some of the witnesses for the defendants that they used to consult the orac.Je in the temple also seemed to the High Court a significant circumstance. But the High Court appears to have overlooked that these witnesses admitted that \"before consulting the oracle,\n\nG. G. PRABHU v. B. G. AC.RIA (Gupta, J.) 635\n\nthe manager must be told of it and it is he, who could consult on their behalf\". The High Court bas recorded a finding that \"numerous endowments\" have been made by Hindus not belonging to Goud Saraswat Brahmin community. This is not however supported by the evidence in the case. Another circumstance which impressed the High Court was the recital in an award (Ext. A-13) which was made part of the decree (Ext. A-3) in a previous proceeding between the members of Goud Saraswat Brahmin community thems, lves, that the trustees of the temple should place the accounts of income and expenditure before the \"general body''.\n\nThis \"general body\" according to the High Court implied the Hindu community generally. In the context of the award (Ext. A-13) it is however clear that the 'general body' mentioned therein could only refer to the members of the Goud Saraswat Brahmin community because the proceeding concluded by the decree was confined to the members of the community. The law is now well settled that\n\n\"the mere fact of the public having been freely admitted lb the temple cannot mean that courts should readily infer therefrom dedication to the public.\n\nThe value of such public user as evidence of dedication depends on the circumstances which give strength fo the inference that the user was as of right\". (see Bihar State Board Religious Trust, Patna v. Mahani Sri Biseshwar Das('). We find that the circumstances disclosed in evidence in this case do not support the inference that Hindus generally used the temple as a place of worship as -of right.\n\nThe appeal is accordingly allowed.\n\nThe Judgment of the High Court is set aside and that of the trial court restored.\n\nIn the circumstances of the case we make no order as to costs.\n\nS.R.\n\nAppeal allowed.", "total_entities": 29, "entities": [{"text": "GURPUR GUNI VENKATARAYA NARASHIMA PRABHU\n\n& ORS", "label": "PETITIONER", "start_char": 0, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "GURPUR GUNI VENKATARAYA NARASHIMA PRABHU & ORS", "offset_not_found": false}}, {"text": "G. ACHIA, ASSISTANT COMMISSIONER; HINDU\n\nRELIGIOUS AND CHARITABLE ENDOWMENT\n\nMANGALORE AND ANR", "label": "RESPONDENT", "start_char": 53, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "B. G. ACHIA, ASSISTANT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT MANGALORE AND ANR", "offset_not_found": false}}, {"text": "April 15, 1977", "label": "DATE", "start_char": 150, "end_char": 164, "source": "ner", "metadata": {"in_sentence": "April 15, 1977\n\n(V. R. KRISHNA IYER AND A. C. GUPTA, JJ.J\n\nMadras Hindu Religious and Charitable Endow1nents Act, 1951-S. 6(17) 'Public Temple'."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 167, "end_char": 185, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 190, "end_char": 205, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "S. 6(17)", "label": "PROVISION", "start_char": 269, "end_char": 277, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 6(17)", "label": "PROVISION", "start_char": 423, "end_char": 431, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 439, "end_char": 497, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s 57", "label": "PROVISION", "start_char": 812, "end_char": 816, "source": "regex", "metadata": {"linked_statute_text": "the Madras Hindu Religious and Charitable Endowments Act, 1951", "statute": "the Madras Hindu Religious and Charitable Endowments Act, 1951"}}, {"text": "Uadras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 820, "end_char": 878, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gurpur", "label": "GPE", "start_char": 1008, "end_char": 1014, "source": "ner", "metadata": {"in_sentence": "The Deputy Comrnisioner, in a proceeding u/s 57 of Uadras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple'."}}, {"text": "Mangalore Taluk", "label": "GPE", "start_char": 1018, "end_char": 1033, "source": "ner", "metadata": {"in_sentence": "The Deputy Comrnisioner, in a proceeding u/s 57 of Uadras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple'."}}, {"text": "Karnataka", "label": "GPE", "start_char": 1037, "end_char": 1046, "source": "ner", "metadata": {"in_sentence": "The Deputy Comrnisioner, in a proceeding u/s 57 of Uadras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple'."}}, {"text": "s. 6(17)", "label": "PROVISION", "start_char": 1240, "end_char": 1248, "source": "regex", "metadata": {"linked_statute_text": "Uadras Hindu Religious and Charitable Endowments Act, 1951", "statute": "Uadras Hindu Religious and Charitable Endowments Act, 1951"}}, {"text": "CIVIL APPELLAT.E JURISDICTION", "label": "PETITIONER", "start_char": 3629, "end_char": 3658, "source": "ner", "metadata": {"in_sentence": "635 A-BJ\n\nCIVIL APPELLAT.E JURISDICTION : Civil Appeal No."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 3802, "end_char": 3813, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. N. Bhat and R. B. Datar for the Appellants."}}, {"text": "K. N. Bhat", "label": "OTHER_PERSON", "start_char": 3815, "end_char": 3825, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. N. Bhat and R. B. Datar for the Appellants."}}, {"text": "R. B. Datar", "label": "OTHER_PERSON", "start_char": 3830, "end_char": 3841, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. N. Bhat and R. B. Datar for the Appellants."}}, {"text": "Narayan Nettar", "label": "LAWYER", "start_char": 3863, "end_char": 3877, "source": "ner", "metadata": {"in_sentence": "Narayan Nettar for Respondent."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 3940, "end_char": 3945, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivere.d by\n\nGUPTA, 1."}}, {"text": "section 57", "label": "PROVISION", "start_char": 4264, "end_char": 4274, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 4282, "end_char": 4340, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "January 17, 1961", "label": "DATE", "start_char": 4422, "end_char": 4438, "source": "ner", "metadata": {"in_sentence": "In a proceeding under section 57 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act), the Deputy Commissioner by his order dated January 17, 1961 held that the temple was a public temple and the Commissioner on appeal affirmed the ordi; r of the Deputy Commissioner on June 12, 1961."}}, {"text": "June 12, 1961", "label": "DATE", "start_char": 4562, "end_char": 4575, "source": "ner", "metadata": {"in_sentence": "In a proceeding under section 57 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act), the Deputy Commissioner by his order dated January 17, 1961 held that the temple was a public temple and the Commissioner on appeal affirmed the ordi; r of the Deputy Commissioner on June 12, 1961."}}, {"text": "Subordinate Judge, South Kanara", "label": "COURT", "start_char": 4699, "end_char": 4730, "source": "ner", "metadata": {"in_sentence": "106 of 1961, in the court of the Subordinate Judge, South Kanara, for a declaration that the temple was a private temple and not a temple as defined in section 6(17) of the Act or,_in the alternative, for a declaration that it was a denominational or sectional temple."}}, {"text": "section 6(17)", "label": "PROVISION", "start_char": 4818, "end_char": 4831, "source": "regex", "metadata": {"linked_statute_text": "the Madras Hindu Religious and Charitable Endowments Act, 1951", "statute": "the Madras Hindu Religious and Charitable Endowments Act, 1951"}}, {"text": "section 6(17)", "label": "PROVISION", "start_char": 6204, "end_char": 6217, "source": "regex", "metadata": {"statute": null}}, {"text": "Karnataka High Court", "label": "COURT", "start_char": 6645, "end_char": 6665, "source": "ner", "metadata": {"in_sentence": "The appeal before us is by the plaintiffs on certificate granted by the Karnataka High Court."}}, {"text": "section 6( 17)", "label": "PROVISION", "start_char": 8200, "end_char": 8214, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_636_663_EN", "year": 1977, "text": "DAGDU & OTHERS ETC. v.\n\nSTATE OF MAHARASHTRA\n\nApril 19, 1977\n\n{Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\n. Evidence Act 1912-Sections 114 illustration (b) and 133-Accomplice 01dence, whether a competent witness-Whether conviction can be based on u_ncorr&boratul. evidence of an accomplice-Appreciation-Rule of corroboratlon-Presumpllon by courts.\n\nCriminal Procedure Code 1989-Sections 163, 164, 367(5) and 554--Confessional statements-Criminal Manual 1960 oj Bombay High Court-PaYa 18 -Failure to comply with Sec. 164(3) and High Court circulars if renders confessions inadmissible in evidence-Evidence Act, Section 29.\n\nC:iminal Procedure Code 1973- Sections 235, 354-Hearing, accused on the question of sentence-I/ mandatory-If appellate court can give hearing, on failure by the trial court.\n\nAccused No. 1 though in her thirties had entered a period of premature menopause. She was anxious to get a child which could only happen if her menstrual cycle was.restored. She used to consult quacks and Mantriks in order to help get a child. Accused No. l's mother was accredited with sixth sense in the matter of discovery of treasure trove.\n\nShe had oracled that a treasure trove Jay buried in accused No. l's house underneath the Pimpal tree. The Pimpal tree is believed to be the haunt of Munjaba, who is supposed .to be the spirit of an unmarried Brahmin boy. Accused Nos. 1 and 2 consulted quacks who prescribed that virgins should be offered as sacrifice to Munjaba and to propitiate the deity, blood from their private parts be sprinkled on the food offered by way of 'Naivedya'. Five small girls about 10 years of age, a year old infant and 4 women in their mid-thirties were found murdered between 14-11-1972 and 4-1-1974 in a villae called Manawa!. The murders of these 10 females showed significant similarities in pattern and conception. The time and place chosen for crime, preference for females as victims, the nature of injuries caused to them, the strange possibility that the private parts of some of the victims were cut in order to extract blood, the total absence of motive for killing these very girls and women, the clever attempt to dcxlge the police and then to put them on a false scent and the' extreme brutality surroundings the crimes gone to the case an eerie appearance.\n\nEighteen persons were put up for trial before the Session Judge for the 10 murders. Two out of these persons were tendered pardon and were examined in the case as approvers. Accused No. 6 died during the trial. The Sessions Judge acquitted accused 4, 5, 7, 8 and 13 to 16. Accused No. l and 2 were convicted under s. 302 read with s. 120-B and section 34 of the Penal Code.\n\nAc:used No. 1, 2 and 3 were sentenced to death while accused No. 9 to 12 were sentenced to life imprisonment. The matter went to the High Court in the form of various proceedings. The High Court acquitted accused No. 1 and 2 holding that the offence of conspiracy which formed the gravamen of the eharge against them was not proved. Since the charge of conspiracy failed and since it was a common ground that accused No. 1 and 2 had not taken any direct part in the commission of the murders; the High Court held that they were entitled to acquittal on all the charges.\n\nThe High Court dismissed the appeal filed by accused No. 3 holding that he was responsible for the first 4 murders and confirmed his conviction under s. 302 read with s. 34 as also the sentence of death imposed upon him. The High Court dismissed the State's appeal against acquittal of accused No. 4 and 5 but allowed the State's appeal and enhanced the sentence of accused No. 9 to 12 to death.\n\nCriminal Appeal No. 437 of 1976 was filed by accused Nos. 9 to 12. Criminal Appeal No. 438 of 1976 was filed by accused No. 3 and Criminal Appeal No. 441 of 1976 was filed by the State of Maharashtra against acquittal of accused Nos. 1 and 2. The Court acquitted accused No. 12 by giving him the benefit of doubt and while dismissing the three .appeals.\n\nHELD : (1) There is no antithesis betweens. 133 and illustration (b) to section 114 of the Evidence Act because the illustration only says that the Court may presume a, certain state of affairs under s. 114 of the Evidence Act. The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural .events, human conduct and public and private business in their relation to th<: facts of the particular ca'3e.\n\nUnder s. 133 of the Evidence Act, an comr.hce _shall be a competerit wiess against an accused person and a conv1; tion is not illegal merely because it proceed, s upon the uncorroborated testimony of an accomplice.\n\n[643 B-CJ\n\n(2)' Though an accomplice .is a competent witness and though a conviction maiy fawfully rest upon his uncorroborated testimony yet the court is entitled to _presume and may be justified in presuming ini the generality of cases that tm reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is n1eant that there boo to be some independent evidence tending to incriminate the particular accused in the\n\ncommis.'iion of the crime. f643 C-Dl C\n\n( 3) It is hazardous as a matter of prudence to proceed on the evidence ot a self-confessed criminal.\n\nThe risk involved in convicting an accused on the testimony of an accomplice unless it is corroborated in material particulars is so real and potent that what during the early development of law was felt to be a matter of prudence hoo been elevated by judicial experience into a requirement or rule of law.\n\nWhat has bardeiled into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind. of D the Judge and that corroboration maoy be dispensed with only if the peculiar circumstances of the case make it safe to dispense with it. [643 , E-F]\n\nKini? v. Baskerville f19161 2 K.B. 653; Rameshwar v. State of Rajastlian [1952] S.C.R. 377, Bhuboni Saku v. The King 76 I.A. 147; The State of Bihar\n\nv. Basawan. Sinxh 'f19591 SCR 195 and Ravinder Singh v. State of Haryana [19751 3 S.C.R. 453. relied on.\n\n(4) It is true that an approver has real incentive to speak out big mind after E tender of pardon but where it is impossible to reconcile hi5 earlier statements with his later assertions his evidence has to be left out of consideration. It is one thing to say that an approver's statement cannot be discarded for the mere reason that he did not disclose the entire story in his police statement and quite another to accept an anorover in spite of contradictions which cast a veil of doubt over his involvement of others. [646 B~C]\n\nMadan Mohan Lal v. State of Punjab [1970] 2 S.C.C. 733 relied on.\n\nTahsildar's case [1959) Supp. 2 S.C.R. 875, distinguished.\n\n(5) The failure to comnly with section 164(3) Cr. P.C. with the Hi•h Court circulars .wll. !lot rende_r the confessions inadmiss_ible n evidence .. ReJevancy and adm1ss1b1hty of evidence have to be determined 1n accordance with the provisions of the Evidence Act. [651 El\n\n(6) Under section 29 of the Evidence Act, if a confession is otherwi8e rele~\n\nvnt, it does not become irrelevant merelv because, inter olia, the accu1111ed was G not warnt'\\d that he was not bound to make it and the evidence of it mip:ht be given against him.\n\nIf, therefore. a confession doe<: not violate anv one of the\n\nC?ndiions _onerative under s. 24 to 28 of the Evidence Act, it will be admis s1ble 1n evidence. But as in resnect of anv other admisible evidence oral or documentary, so in the case of confessional statt-ments which are therwise\n\nadmissible. the Co1;1rt has still to consider whether th1>; v can be _accented as true.\n\nIf the facts and circumst:incc: surrounrlin2 the mkin2 of a confession annear to cast a doubt on the veracitv or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in cvid,.nce.\n\n[651 E-GJ\n\n. (7). A st.rict and faithful compliance with s. 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee\n\n638 SUPREME COURT ., l\\EPQ)lTS\n\n[1977] 3 S.C.R.\n\nA that the confession is voluntary.\n\nThe failure to observe the safeguards pres~ cribed .therein a.re in practice calculated to impair the evidentiary value of the confessional statements.\n\nIn the instant case no reliance can be placed on any of the contesstons. Apart from the Cofessions of the two approvers, all others were retracted, which ),,.,,_ further cripples their evidentiary value.\n\n(657 H]\n\n(8) The imperative language of subsection {2) leaves no room 'tor doubt that aifter recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under s. 360.\n\nThe. social compulsions, the pressure of poverty, the retributive instinct to uek an extra-legal remedy to a sense of being wronged, the lack of rueans to be educated in the difficult art of an honest living the parentage, the hered1tyall these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence.\n\nThe mandate of s. 235 (2) must, therefore, be obeyed in its letter and spirit. {657 F-l:l]\n\n(9) The failure on the part of the Court, which convicts au accused, :to ear him on the question of sentence does not necessa.rily entil a remari.d to that Court in order to afford to the accused an opportunity to be heard on the question of sentence. [658 A-Bl\n\n\n(10) The .C9µrt, on convicting .<; in accused, must unquestionably hear him on the questi_qn of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open tO that Cou:r:t to rmedy the breach by giving a hearing to the accused qn the qution of .nJ.n.c.e. That .Q.pportµnity has to Qe real a11d effctive, which l\\leflQS , tµat the _ aused must be perniitted to adduce before the Court all the data whih he desires to adduce on the question of sente11ce: The o.<ecused .may exerjse\n\nthat right either by instructing his counsel to make oral submissions to the Court or he -Pl~Y •. on af&davit or otherwise, place in writing before the Court w-hatev:er he desires to place before it on (he question of sentence. The _Court ma.y, .in appropriate cases, have to !ldiourn the matter order to give to the accused suffl.cient tilij.e to produce the necessary data and to make his contention .on , the\n\nqtWStion , of ntence. For a proper apd .effectiv:e implementation of , the prov.ision :Contained .in , s, 235(2) it-is not alway, s .uecessary to remand the matter -.o Jfle Court which has recorded the conviction.\n\nJlem, and is a.n .exceptio, n, not , the rule, and ought, therefore, be avoided as far as possible in the interesl'i of expeditious, though .fir disposzl of cases.\n\n[658 B-D, FJ\n\n\nGOSWAMI, J. (Concr1ing) :~\n\nWhenever an appeal court finds tht tqe _p; ianase of secti.Qn Z35 (2) Cr. P.C. for a hearing on sentence has not been complied With it becomes the duty of the Court .to offer to the .accused _an adequa, te , QppQrtunity to prbduce .QefQre it whatever ma-terial he chooses in wh, atever reasonal; ile :way poss.ible. Courts .should as rar as pq_ssible av.oid rm.ands whn the ccuse, d can secure fuU benefit ot s. 235 (2) Cr. P.C. in the appeal CQurt.\n\n[661 .C-D]\n\nCRIMINAL APPELLATE JURISDICTION : Crl. A. Nos. 437 & 438 of 1976.\n\n(Appeals by Special Leave from .the Judgment aµd Order dated the 8/9/10-3-1916 .of the Bombay High Court ill Cr). Appeals Nos. 17 .a.nd 18 -Of l976 and confirmation Case No. 3 of 1976) and\n\nQI. A. No. 441 of 1976.\n\n(Appea! by Special Leave from the Judgment and Order dated the A 8/9/10-3-1976 of the Bombay High Court in Criminal Appeal No. 18 of 1976).\n\n~ P. Narayan, B. G. Kolse Pall1, B. S. Bhonde and V. N. Ganpule,\n\nfor the appellants in Cr!. A. Nos. 437-438 and for respondent in CrJ:\n\nA. 441/76.\n\nV. S. Desai, P. P. Hudlekar and M. N. Shroff for respdnderttin'Crl.\n\nB Appeal Nos. 437-438 and for the appellant in Cr!. A. No. 441/76.\n\nThe Judgment of Y. V. Chandrachud and P. N. Sbirrghal, JJ. was delivered by Chandrachud, J. P. K. Goswatni, J. gave ai separate opinion.\n\nCHANDRACHUD, J.\n\nFive stnall girls about ten years of age1 a: year old infant and four women in their tnidcthirties wete found mutder~ between November 14, 1912 and January 4, 1974 in a villllgl!i called Manwat in Maharashtra.\n\nThe murders of these ten femal\\ls shl>W sii ficant sitnilarities in pattern and conception. The time al:l'd' place! chosen for the crimes, the preference for fomales as victims, the narute of injuries caused t() thetn, the strange possibility that the ptivate par!S of some of the victim~ Were cut in order to extract blood, the total-absem:e of motive for killirig these very girls and women, the cleve'r attempt to\n\ndodge the police and then to put them on a false scent and the extreme brutality surrounding the crimes give to the case an eerie appearance.\n\nSuch harrowing happenings make the task of discovering truth difficult and it is just as well to begin with Justice Vivian Bose's remin'lfer that the shocking nature of the crime ought not to induce an instinctive reaction against a dispassionate scrutiny of facts and law.\n\nWe have three appeals before us, all by special leave granted by this Court.\n\nCriminal Appeal No. 437 of 1976 is filed by accused Nos. 9 to 12, Criminal Appeal No. 438 of 1976 by accused No. 3 while Criminal Appeal No. 441 of 1976 is filed by the State of Maharashtra against the acquittal of accused Nos. 1 and 2.\n\nEighteen persons were put up for trial before the learned Sessions Judge; Parbhani for the ten murders. Two out of these, Ganpat Bhagoji &ilve and Shankat Gyanoba Kate were tendered pardon by tlie learned Judge and were exatnined in the case as approvers.\n\nAccused Nos. 6 died during the trial leaving 15 persons for consideration of the question whether they had conspired to commit the murders and whether the\n\nmtJrdets were comtnitted in pursuance of that conspiracy. The learned Sessions Judge acquitted accused Nos. 4, 5, 7, 8 and 13 to 16. Accused Nos. 1 and 2 were convicted under sec. 302 read with sec. 120-B and set. 109 of the Penal Code.\n\nAccused Nos. 3 and 9 to 12 were convicted under sec. 302 read with sec. 120-B and sec. 34 of the Penal Code.\n\nAccused Nos. 1, 2 and 3 were sentenced to death while accused Nos. 9 to 12 were sentenced to life itnprisonment.\n\nThe matter went to the Bombay High Court in various forms. The seven accused who were convicted by the Trial Court filed an appeal challenging the order of conviction and sentence.\n\nThe Sessions Court\n\nmade a reference to the High Court for confirmation of tho death sentence imposed on accused Nos. 1, 2 and 3. The StateGoverument filed an appeal against the acquittal of accused Nos. 4 and 5. l\\ also filed an appeal under s. 3 77 of the Criminal Procedure Code 1973 asking that the sentence of life imprisonment imposed on accused Nos. 9 to 12 be en_ltanced to death.\n\nThe. State uot having challenged the order of acqmttal passed by the Sessions Court in regard to accused Nos. 7, 8 aud 13 to 16, that order has become final and was not in any form assailed before us as erroneous. ·\n\nThe High Court acquitted accused Nos. 1 and 2 holding that the ojl'ence of conspiracy which formed the gravamen of the charge against them. was not proved.\n\nThe charge of conspiracy having failed and it being common ground that accused Nos. 1 and 2 had not taken any direct part in the commission of the murders, the High Court held that they were entitled to acquittal on all the charges.\n\nThe High Court dismissed the appeal filed by accused No. 3 holding that he was responsible for the first four murders and confirmed his conviction under s. 302 read with s. 34 as also the sentence of death imposed upon him.\n\nThe conviction and sentence of accused No. 3 under s. 302 read with s. 120-B was set aside by the High Court in view of its finding that the prosecution had failed to establish the charge of conspiracy.\n\nThe High Court dismissed the State's appeal against the acquittal of accused Nos. 4 and 5 but it allowed tho appeal filed by the State for enhancement of the sentence oflife imprisonment imposed on accused Nos. 9 to 12.\n\nThe High Court enhanced their senrence to death under s. 302 read with s. 34 but consistently with its finding on the charge of conspiracy . it set aside their conviction and sentence under s. 302 read with s. 120- B.\n\nThere weredelay on the part of the State Government in filing the appeal for enhancement of the sentence of accused Nos. 9 to 12 but the High Court condoned that delay.\n\nWe are thus called upon to consider the correctness of : ( 1) the order of the High Court acquitting accused Nos. 1 and 2; ( 2) the order of conviction of accused No. 3 under s. 302 read with s. 34 and the sentence of death imposed upon him by the Sessions Court and the High Court; and (3) the order of conviction of accused Nos. 9 to 12 under sr. 302 read with s. 34.\n\nThus, we are concerned in these appeals with accused Nos. 1 to 3 and 9 to 12 only.\n\nThe hamlet of Manwat has a population of 15 thousand and is situated in Taluka Pathri, District Parbhani, Maharashtra.\n\nAccused No. 1 Rukhinini was about 32 years of age at the relevant time and despi~ the pledg~ to secularism, it has to be mentioned that she is Pardhi by caste.\n\nShe was in the keeping of accused No. 2, Uttall':rao Barahate a non-pardhi, who is a man of means and was at one time\n\nthe President of the Manwat Municipality. He purchased a house for accused No. 1 in which the two lived tr>gether and it is this hnuse or wada which became the focal point of the consniracy. f\\ccused No. purchased the house really in order to ensnre the exc.lus1veness of his\n\nmistress but it happened to blaze an altogether new tnal.\n\nIn the house was a Pimpal tree which is believed to be the emblem of God Vishnu, the Preserver.\n\nThe Pimpal is also believed to be the haunt of Munjaba, who is supposed to be the spirit of an unmarried Brahmin boy. The Parbhani District Gazetteer says at page 115 that\n\n\"some childless persons who trace their misfortune to the influence of some evil spirit cause the Brahminic thread ceremony performed for a pimpal tree and a masonry platform built round its trunk.\"\n\nThe Manwant village-folk commonly believe that treasure troves are lying buried in the town ever since the sixteenth century when its inhabitants fled away after the troops of Murtazahad invaded the town, which was then under the Nizamshahi of Ahmednagar.\n\nQuite some quacKS m the periphery of Manwat make their living by diagnosing where the treasure trove lies and what means to adopt for discovering it.\n\nAccused No. 1, though in her thiries, had entered a period of premature menopause.\n\nShe was anxious to get a child which could only happen if her menstrual cycle was restored. She used to consult quacks and mantriks who, she believed, could help her get a child.\n\nAccused No. 2's mother was credited with a sixth sense in the matter of discovering treasure troves. She bad oracled that a treasure trove lay buried in accused No. l's house underneath the Pimpal tree. The stage was thus set for the visits of mountebanks to the house of accused No. 1 for the display of their supernatural attainments.\n\nThe case of the prosecution is that accused Nos. 1 and 2 consulted quacks who prescribed that virgins should be offered as sacrifice to Munjaba and blood from their private parts be sprinkled on the food offered by way of Naivedya ta the God.\n\nOne of such quacks was E Ganpat Salve, the approver, who was examined as P.W. 1.\n\nAccepting Ganpat's advice, accused Nos. 1, 2, 3, 4 and 6 conspired to commit the murders of virgin girls. Ganpat himself joined the conspiracy and so did .Shankar Gyanoba Kate who was a servant of accused No.\n\n2. Shankar, also an approver, was examined in the case as P.W. 2.\n\nAccused Nos. 5 and 7 to 16 are alleged to have joined the conspiracy at a later point of time.\n\nIn pursuance of the conspiracy, ten murders F were coirullitted between November 14, 1972 and January 4, 1974.\n\nThe first four murders are alleged to have been committed by the aporover Shankar and accused No. 3, Sopan, who was also in the employment of accused No. 2. Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. .\n\nIt is said that the blood from the private parts of these victims was offered to Munjaba and yet there was no clue as to where the treasure trove lay.\n\nGayabai, Shakila and Sugandhabai had evidently died in vain and therefore Nasima, the fourth victim, was beheaded so that the severed head could be offered to propitiate the deity.\n\nEven Nasima's head fa; Jed to move Munjaba's heart.\n\nThe treasure trove remained undisclosed.\n\n642 stiilP.'EME couR'.f i!ii>oilr's (l<of77) 3 S.C.R.\n\nThe next two' murders are alleged to have been committed by accused Nos. 5 and 6.\n\nKalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973.\n\nAccused No. 5 has beer\\ acquitted and the. order of acquittal has become finat Accused No. 6 died during the pendency of the trial in the Sessions Court. .\n\nThe seventh murder is alleged to have been committed by accused Nos: 7 and 8 when Patvatibai, aged about 35, was murdered on October 8; 1973.\n\nThese two accused. were acquitted by the Sessions Coilrf and the a:quitta! was not challenged by the State.\n\nThe three last murders are alleged to have been co1ilmitted by ae- . cused Nos. 9 to 12, all at the silnle tinie; Hatil:fai, aged' 35; Wl!s going along with her daughter Taravati aged 9 and was carrying in' her arms an infant daughter, Kamal, aged a year and half.\n\nAU of them were murdered ori the afterrioori of January 4, 197'4.\n\nAccused Nos. 1, 2, and 14 were arrest&l on June 18, 1973 in connection with the first four murders which had taken place between Nomber 14, 1972 and April 13, 1973. It is alleged that,\n\nwhile incustody, accused No. 2 sent a message to accused N&. 5 to coinmit a few more murders so that no suspicion may fall ol'i those who were arrested.\n\nThat is why accused Ni>s. 5 and 6, accused Nq. 6 being a servant of accused No. 1, are said to have committed the murde_rs. of Kalavati and. Halima in June and July, 1973. On July 30, 1973 accused Nos'. l, 2, 9 arid 14 we're released on.bail ori con- dition that they shall not entef the lirtiitS of Mariwaf.\n\nThis condition was relaxed oil October 4, 1973 fcir investigittional purposes. Accus~.\n\nNos. 1 and 2 were in Manwat frorti Octol'ier' 4 to October 21, 1973- . dliring which periOd they are [\\ileged to have procured' the serviceli of\n\naccused Nos. 7 and 8 for the commission of Parvatibai's murder on October 8.\n\nOn December 18, 1973, an application was moved for cancellation of the bail granted to accused Nos. 1 and 2.\n\nThat applicatiM was allowe<t and they, were re-arrested on January 4, 1974 whtlti the murders o'f Hiliibai, Tat\\\\:tiiati arid Kamal were coniniitted.\n\nAcciled No: 3 waif atr'esred on December 28, 1973, accused Nos. 9 to 11 on January 8; 1974' and acc'tised No. 12 on January 11, 1974.\n\nAccused Nos~ 1 a'.ild' 2 are tile linclipin of the case and therefore it would be ap-pr'riate to dea1 with t!Jeir cases first.\n\nAccused . No.' 1 is the misttess of' aecused' N'o: 2 and wllereas the fofniet was\n\nariXious to' get a child, the)'' both were aiiXioiis' to discover tlie treasure trove' lying buried)n their liouse.\n\nThe charge against them is that for' the purpose of achieving tliese objects they consulted quack.- who advised that the Munjaba should be propitiated by offering the blood of virgin girls.\n\nAccepting that advice, accused Nos. 1 and 2 are alleged to have entered into a conspiracy with the other accused to conimit the various murders.\n\n'The prosecution relied inter ali/J on: the evidence of the two apptovers, Ganpat, P.W. 1, and Shaitkar, P.W. 2, in order to prove the' chi!tge of conspiracy against accused' Nos. 1 and 2 as also for proving that various murders were committed in pursuance of that\n\n...\n\nconspiracy.\n\nThe learned Sessions Judge accepted the evidence of A bot!\\ the approvers as against accused Nos. 1 and 2 but the High Court rejected the evigence of Ganpat and accepted that of Shankar only.\n\nBefore considering that evidence, it would be necessary to state the legal position in regard to the evidence of accomplices and approvers.. Section 13 3 of the Evidence Act lays down that an accomplice shall be a competent witness against an accused person; and a convic- B tion is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.\n\nSection 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. in their relation to the facts of the particular case.\n\nIllustration (b) to s. 114 says that the Court may presume that an accomplice is unworthy C of credit unless he is corroborated in material particulaffi.\n\nThere is no antithesis betweens. 133 and illustration (b) cos. 114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs.\n\nIt does not seek to raise a conclusive and irrebutable presumption. Reading the two together the position which emerges is that though an accomplice is a com- D pctent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be ju:stified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidFnce is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate, the paticular accused in the commission of the crime. It is hazardous, E as a matter of prudence, to proceed 'upon the evidence of a sclfconfessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him.\n\nThe risk involved In convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a require- F ment or rule of law.\n\nAll the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice bnt that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only it the peculiar circumstances of a case make it safe to dispense with 1t.\n\nIn King v. Baskerville(') the accnsed was convicted for commit!- G ing groS'S acts of indecency with two boys who were treated as accomplices since they were freely consenting parties. Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that thongh there was no doubt that the uncorrooorated evidence of an accomplice was admissible in law it was for a long time a rule of practice t _common law for the Judge to warn the Jury 0£ the danger ?f convicting a person on the uncorroborated testimony of H an accomplice. Therefore, though the Judge was entitled. to point out\n\n(1) [1916] 2 KB. 658.\n\n2-707SCI/77\n\nto the Jury that it was within their legal province to! convict upon the unconfirmed evide~1ce of an accomplice, the rule of practice had pecome Vfftually eqmvalent to a rule of law and therefore in the absence of a proper warning by the Judge the conviction could not be permitted to stand. If after being properly cautioned by the Judge the Jury neve:th.eless convicted the prisoner, the Court would not .quash the conv1c!Ion merely upon the ground that the accomplice's testimony was uncorroborated.\n\nIn Rameshwar v. State of Rajasthan(') this Court observed that the branch otf law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England.\n\nThe only clarification made by this Court Was that in cases tried by a Judge without the aid of a Jury it was necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts ot the particular case before him and show why he considered it safe to convict without corroboration in the particular case.\n\nIn Bhuboni Sahu v. The King(') the Privy Council after noticing s. 133 and illustration (b) to s. 114 of the Evidence Act observed that whilst it is not illegal to act 011 the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to imp:icate the accused; and further that the evidence of one accom plice cannot be used to corroborate the evidence of another accomplice.\n\nThe rule of prudence was based on the interpretation of the phrase \"corroborated in material particulars\" in illustration (b). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomolice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himse.rn betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution: the real danger is that he is telling a story whtch in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story mav be true in all its details as to eight of them but untrue as to the other two whose names mav have been introduced because they are enemies of the approver.\n\nThe only real safeguord therefore aoainst the risk of condemning the innocent with the l!llilty lies in insisting on independent evidence which in some measure implicates each accused.\n\nThis Court has in a series of cases exoressed the same view as H regards accomplice evidence. (see The State of Bihar v. Basawan\n\n(1) [1952] S.C.R. 377.\n\n(2) 76 IA 147.\n\nSingh('); Hari Charan Kurmi v. State of Bihar;(2) Haroon Haji A Abdulla V State of Maharashtra;(') and Ravinder Singh v. State of llaryana('). In Hari Charan( 2 ) Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under s. 3 of the Evidence Act and has to be dealt with as such.\n\nThe evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, sub1ect to the requirement which has now become virtually a part of the law B that it is corroborated in material particu1ars.\n\nWe will assess the evidence of the two approvers Ganpat and Shankar in the light of these principles.\n\nGanpat Bhagoji Salve, P.W. I, fails to cross the initial hurdle of reliability and no amount of corroboration cure the infirmities which beset his evidence.\n\nHe is c not a quack but a charlatan who traded on the credulous optimism ot the steri:e village women.\n\nHe admits that he possessed no cnre but made a pretence of it by carrying the confidence of lay, uninformed women.\n\nHe was sent for to prescribe a cure to enable accused No. l to bear a child but accused Nos. 1 and 2, taking advantage of his expert presence, consulted him on where the treasure trove lay. G\"npat prescribed the facade of a procedure which was in the nature of a D confidence trick.\n\nPractising it deftly on his credulous audience, he passed on the errand of God that Munjaba has to be appeased by offering the blood of virgin girls.\n\nThat work was assigned by accused No. 2 to his servants, accused No. 3 and the other approver Shankar.\n\nAccused No. 3 and Shankar conunitted the murders of Gayabai E and Shakita and handed over the bowlful of blood from the private parts of the victims to accused Nos. 1 and 2 who performed the Puja of Munjaba.\n\nBut the treasure trove did not come up.\n\nThen Sugandhabai was murdered and her menstural blood was offered to the God, again without a purpose.\n\nThe fourth to die was Nasima whose head and small finger were offered as sacrifice.\n\nBut even that heavy price yielded no clue to the treasure trove.\n\nGanpat was paid a fee F of Rs. 100 whereupon he made himself scarce and left for a place called Baramati from where he was traced by the police.\n\nThat is what Ganpat's evidence comes to .\n\nGanpat is an utterly worthless witness whose evidence has been right)y discarded by the High Court.\n\nHis entire story is incredible and abounds in contradictions of the gravest kind.\n\nAccused No. 2 is a man of some means and was for some time the President of the Manwat Municipality.\n\nIt is hardly likely that a person in his position wou:d readily gulp the fantastic process prescribed by Ganpat for discovering the treasure trove.\n\nGanpat was interrogated by the police for nearly a month and a half after his arrest at Baramati and it was only at the end of that trying period that he trotted out some story\n\n(1) [1959] SCR 195 f3) [l 9Sq] SCR 6ll\n\n(2) [1964] 6 SCR 623\n\n(4) [1975] 3 SCR 453\n\nto save his skin. It is1 common ground, and we see much more in that episode, that Ganpat struck his head against a wall while in police custody and sustained a head injury for which he was charge-sheeted for attempting to commit suicide.\n\nHe admits in his evidence that he was driven to break his head, as a result of the torture inflicted upon him by the police.\n\nThough he implicated both accused Nos. 1 and 2 in the search for treasure trove, he admitted later that accused No. 1 had never talked to him in that behalf.\n\nHe made several significant statements for the first time in the Court and though we agree that an approver has real incentive to speak out his mind after tender of pardon, it is impossible to reconci1e his earlier statements with his later assertions.\n\nIt is one thing to say as was said in Madan Mohan Lal v. State of Punjab(') that an approver's statement cannot be discarded for the mere reason that he did not disclose the entire story in his police statement and quite another to accept an approver in spite ol contradictions which cast a veil of doubt over his involvement or others.\n\nConceding the ratio of Tahsildar's( 2 ) case, on , which Mr.\n\nDesai for the State Government relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of falsehood with an ounce of truth.\n\nHis evidence has therefore to be left out of consideration.\n\nThe other approver Shankar Gyanoba Kate, P.W. 2, has greater credibility than Ganpat.\n\nShankar was working with accnsed No. 1 as an agricultural servant along with accused No. 3.\n\nHe speaks ot Ganpat's visits, the performance of the 'shakun' and of being commanded by accused Nos. 1 and 2 to commit murders of virgin girls.\n\nHe has unreservedly admitted having committed the murders of Gayabai, Shaki!a, Sugandhabai and Nasima with accused No. 3's assistance.\n\nHe implicates accused Nos. 1 and 2 by depooing that after each of the murders was committed, he and accused No. 3 used to go to accused No. l's house for delivering the blood and that the accused used to perform the Puja thereafter.\n\nNot only has Shankar tarred himself with the same brush as accused Noo. 1, 2 and 3 but he has confessed to having played the leading role in the commission of the first four murders.\n\nImpressed by that circumstance, the Sessions Court and the High Court concluded that he is a reliable witness. but they took the view that the conviction of accused Nos. I and 2 cannot be permitted to rest on his uncorroborated testimony.\n\nWe unhesitatingly share that view.\n\nHaving played the role of the master killer in four ghastly murders, he is bound to know every little detail as to the manner of killing.\n\nThe vivid description given by him of the luring, the gagging and the throwing away of the dead bodies may therefore be true. But 1t is easy enough for him to introduce nice falsities here and there by ilwolving some others in the broadly true framework of his story. 1l is therefore necessary to se(l whether the evidenc~ of Shankar in regard to the implication of accused Nos. 1 and 2 is corroborated by some independent evidence.\n\n(I) [197012 S.C.C. 733.\n\n(2) [1959] Supp, 2 S.C.R. 875.\n\nBefore looking out for corroboratio11 we must point out that A Shanlrnr used to be interrogated by the police every night for about 'I or l 0 days and it was at the end of that gruelling interrogation that his statement came to be recorded.\n\nThough Shankar claims that he had seen the 'shakun' being performed by Ganpat, he had not stated so before the police nor had he then described the elaborate ritual observed during the performance of that ceremony.\n\nHe also did not say to the police that accused No. l had asked him to commit the murdelb.\n\nB • Neither to the police nor in his statement recorded under s. 164 of the\n\nCode of Criminal Procedure did he say that he had gone to accused No. l's house on the morning following the first murder and that she had told him that since the treasure trove was not found another murder should be committed.\n\nThe statement attributed by Shankar to accused No. l that menstrual blood was required for sacrifice is also conspicuous by its absence in his police statement. These significant C omissions are in the nature of contradictions because not only do they pertain to a very vital aspect of the case against accused Nos., 1 and 2. but they are of such' a nature that the story told by Shankar to the police and under s. 164 of the Code of Criminal Procedurd cannot sensibly stand along with what he told the Court in regard to' the part played by accused Nos. 1 and 2. It is true that Shanker was under a higher obligation while deposing in the Court because as a condi- D tion of the pardon tenderedl to him he had to disclos<> the whole truth to the Court.\n\nBut while assessing the value of Shankar's evidence in so far as he implicates accused Nos. l and 2 we find it impossible to overlo0k the studied improvements which he made to involve them.\n\nSuch gross departure from the earliest versions makes the story of conspiracy suspect and uninspiring.\n\nAll the same, we may examine the argument advanced before us by the learned counsel for the State E that Shankar's e'idence against accused Nos. I and 2 is corroborated in material particulars and should therefore be accepted.\n\nFor affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,\n\nWe see nothing in the evidence of these witnesses which can lend corroboration to the approver's story. tha~ accused Nos. l and 2 conspired to commit the murders or that they asked Shankar and accused • No. 3 to do so or that the blood of victims was handed over to either\n\nof them, or that any Puja was performed after the commission of murders.\n\nLaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.' 1 's menopause.\n\nNor indeed is the evidence of P.Ws. 20, 21 and 51 of 'any assistance in the matter of corroboration.\n\nThey merely say that Gann?t was ekrng his livelihood by prescribing Mantras and medicines, which takes one nowhere near corroborative factors for implicating accused Nos. 1 and 2-\n\nA The recovery of Ganpat's satchel containing charms and herbs, under the Panchnama Ex. 130A, also proves nothing beyond showing that Ganpat was equipped with a quack's repertoire.\n\nOne df the strongest arguments made by Mr. Desai on behalf of the State was that accused Nos. 1 and 2 stood to gain by the commission of the murders and that would afford corroboration to their parti- B cipation in the conspiracy.\n\nMotive may conceivably furnish the necessary corroboration, but we are unable to see any independent evidence on the record regardin(\\ the treasure trove theory.\n\nScrapings were taken from Munjaba's image and samples of earth were also taken from the place where Munjaba is alleged to have been propitiated Wltll the blood of the victims.\n\nIf Puja was really performed in the manner described by Shankar, it is strange that no blood stains should have C been fonnd anywhere near the Pimpal tree.\n\nThere is also no evidence at all to show that any attempt was made by accused Nos. 1 and L to discover the treasure, as for example, by digging.\n\nThese circumstances cast a serious doubt on the theory that accused Nos. 1 and 2 were trying to locate the treasure trove.\n\nThe fact that accused No. J is a servant of accused No. 2 cannot by itself be sufficient to connect\n\naccused No. 2 with the crime charged.\n\nThe last circumstance on which prosecution relies to connect accused Nos. 1 and 2 with the crime is the confessiori, Ex. 108, made by accused No. 1 Rukhmani.\n\nThat confession was recorded by a Sub-Divisional Magistrate', Devidas Sakharam Pawar, P. W. 23.\n\nLater, wo will have a great deal to say about the various confessions recorded by this learned Magistrate but in so far as the confession of accused No. 1 is concerned it is enough to point out that it is entirely exculpatory and can, therefore, serve no useful purpose.\n\nBesides, the confession was retracted by accused No'. 1.\n\nAlong with these considerations is the circumstance that the High Court has acquitted accused Nos. 1 and 2 after a fair examination of the material relied upon by the prosecution as against them.\n\nThe various reasons given by us would so that there is no justification for interfering with the conclusion to which the High Court has come.\n\nThe acquittal of accused Nos. 1 and 2 has, therefore, to be confirmed.\n\nIt would now be convenient to take up the case of accused No. 3, Sopan Rambhau Salve.\n\nThe allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of sugandhabai on February 21, 1973 and of Nasima on April 13, 1973. There is no eyr;,- witness to any of these four murders but for establishing the chargo against accused No. 3, the prosecution relies on the evidence of the two approvers Ganpat (P.W. 1) and Shankar (P.W.2), the discovery of article 17 by accused No. 3, the discovery of articles 18 and 19 by approver Shankar, the seizure of articles 20 and 21 from the house o.1' accused No. 1 and lastly the retracted confession of accused No. 3 himself.\n\nWe have already dealt with the evidence of the appmvers while considering the case against accused Noo. 1 and 2 and we have given our reasons for discarding Ganpat's evidence outright.\n\nIn regard to Shankar's evidence we have taken the view that though he is\n\na reliable witness, his evidence cannot be acted upon unless it is car- A roborated in material particulars.\n\nShankar and accused No. 3 were in the employment of accused No. 2.\n\nAfter describing the 'Shakun' ceremony which was performed for ascertaining tbc desire of the deity, Shankar deposes that he and accused No. 3 were commissioned to commit tbe murders of virgin girls.\n\nShankar, after some hesitation, agreed to do so on tbe pro- B mise tbat accused Nos. 1 and 2 will give to him and accused No. 3 a share in the treasure trove .\n\nAccused No. 3, according to Shankar, lured Gayabai, Shakila and Nasima to secluded spots, where upon Shankar gagged and throttled them. Accused No. 3 facilitated the murders by holding tbe legs of victims which also helped Shankar to collect blood from their private parts after causing cuts tbereon.\n\nAccused No. 3 played a more significant role in the murder of Sugandabhai by axing her to death.\n\nShankar's evidence is amplyi corroborated as regards the broad outlines of the story narrated by him. .But that is not enough.\n\nWe must see whetber his evidence receives! corrobQration from an inde~ pendent source and in material particulars, so as to fasten the guilt on accused No. 3.\n\nThe first circumstance which is said to corroborate the evidence of the approver is the discovery of 27 pieces of shirt, which are collectively marked as article 17. The panchanama of discovery (Ex. 127) is dated January 2, 1974 and is proved by tbe Pancha Vithalrai Takankhar (P.W. 27). The report of the serologist which is at Ex. 312 shows tbat tbere were several blood stains on the shirt pieces ranging from 0.1 cm. to 0.5 cm. in diameter, all of 'A' group. Gayabai's blood also belonged to 'A' group.\n\nMr. Bhonde who appears for accused No. 3 has subjected tbe evidence of discovery to a searching criticism which at first blush seems plausible but which does not bear close scrutiny.\n\nThe argu- F men! that the panchanama of discovery does not attribute to accused No. 3 the autborship of concealment has the simple answer that tbe English translation of the Marathi panchanama is incorrect.\n\nThe original document expressly states that accused No. 3 agreed to point out tbe place where he had kept the shirt pieces.\n\nThe evidence ot the Panch (P.W. 27) and of Dy. S. P. Waghmare (P. W. 96) is to the same effect.\n\nIn the absence of any effective cross-examination G of tbese witnesses, we see no substance in the contention that accused No. 3's fatber, who was standing near tbe hut, should have been examined as a witness.\n\nIt is urged tbat it is highly unlikely that accused No. 3 will preserve tbe tell-tale evidence of the crimes in tbe manner alleged by the prosecution.\n\nWhy the accused chose to do tbis is difficult to know but we are not examining the evidence in the case as a Conrt of first instance.\n\nThe evidence in regard to the discovery is accepted as unexceptionable by the Sessions Court as well as the High Court\n\nand we are unable to characterise that view of the matter as preverse or against the weight of evidence.\n\nThe recovery of art. l 7 thus afford material corroboration to the part played by accused No. 3, at least in Gayabai's llUll'deir.\n\nThe discovery of the blade (art. 18) and the undervest (art. 19) at the instance of the approver affords no corroboration as against accused No. 3.\n\nNor indeed can the recovery of the bowl (art. 20) and the bottle (art. 21) from the house of accused No. 1 connect accused No. 3 with the crime.\n\nThese are articles of common use and no blood was detected thereon.\n\nWhat remains to be considered is the retracted confession of accused No. 3, which is Ex. 106.\n\nWhile on this question, we would c like to deal with all the confessional statements recorded in the case so that it will not be necessary to revert to the question time and again.\n\nAs many as eight confessions were recorded in the case, the confessing accused, apart from the two approvers, being accused Nos. 1, 3, 4, 5, 6, and 12.\n\nThe approvers, Ganpat and Shankar, stuck D to their confessions while all others retracted theirs.\n\nSection 24 of the Evidence Act makes a confessional statement irrelevant in a criminal proceeding if the making thereof appears to have been caused by any inducement, threat or promise, having reference to the charge against the accused, proceeding from a person in authority and sufficient to give the accused grounds which would appear to him reasonable for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.\n\nSection 163 of the Criminal Procedure Code bars a Police Officer or any person in autho\" rity from offering or causing to be offered any inducement, threat 01 promise as is referred to in s. 24 of the Indian Evidence Act.' Section 164 of the Code prescribes the mode of recorcil'ng confessional statements.\n\nActing under s. 554 of the Criminal Procedure Code, 1898, the High Court of Bombay had framed instructioµs for the guidance of Magistrates while recording confessional statements.\n\nThose instructions are contained in Chapter I, Paragraph 18, of the Criminal Manual 1960, of the Bombay High Court.\n\nThe instructions require the Magistrate recording a confession to ascertain from the accused whether the accused is making the confessional statement voluntarily and to find whether what the accused desires to state appears to be true.\n\nThe instructions prescribe a form in which the confessional statement has to be recorded.\n\nSimilar circulars or instructions have been issued by the various High Conrts in India and their importance has been recognised by this Court in Sarwan Singh v. State of Punjab(') in which it was said that the instructions issued by the High Courts must be followed by the Magistrates while recording confessional statements.\n\n(1) [1957] S.C.R. 953\n\nAll of the eight confessions were recorded in this case by a Sub- A Divisional Magistrate, Devidas Sakharam Pawar (P. W. 23), whose evidence leaves no room for doubt that he was blissfully unaware or\n\nthe stringent responsibilities cast by law on Magistrates who are called upon to record confessions.\n\nHe made no effort to ascertain from any of the accused whether he or she was making the confession volunt- 1arily.\n\nHe did not ask any of the accused whether the police had offered or promised any incentive for making The confessional state- B ment nor did he ascertain for how !orig the confessing accused was in police custody prior to hls production for recording the confession nor indeed did he maintain any record to show where the accused were sent after they were given time for reflection.\n\nOne of the glaring infirmities from which the confessional statements of the various accused suffer is that none of those statements contain a memorandum as required by s. 164 of the Code that the Magistrate believed that C the \"confession was voluntarily made\". It is also clear that when the various accused were produced before the Magistrate after the time for reflection was over, he asked no further questions and recorded the confessions mechanically for the mere reason that the accused expressed th_eir willingness to confess.\n\nThe Magistrate was either overcome by the sensation which the case had aroused in Maharashtra or perhaps he blindly trusted the high police officers D who were frantically looking out for a clue to these mysterious murders.\n\nThey produced the accused for recording the confessions and the Magistrate thought that the mere production of the accused was guarantee enough of their willingness to confess.\n\nLearned counsel appearing for the State is right that the failure E to comply with s. 164(3), Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence.\n\nRelevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence F of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under ss. 24 to 28 of the Evidence Act, it will be admissible in evidence.\n\nBu! as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true.. If the facts and circumstances surrounding the making of a confession appear G to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act unon the confcss; on even if it is admissible in evidence.\n\nThat shows .how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary.\n\nA strict and faithful compliance with s. 164 of the Code and with the instructions issued by the High Court affords in a large H measure the guarantee that the confession is voluntary.\n\nThe failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements.\n\nConsidering the circumstances leading to the processional recording of the eight confessions and the ab1ect disregard, by the Magistrate, of the provisions contamed in s. 164 of the Code and of the instructions issued by the High Court, we are of the opinion that no reliance can be pla.ced on any of the confessions.\n\nApart from the confessions of the two approvers, all others were retracted, which furthe, r cripples their evidentiary value.\n\nSince the evidence of the approver Shankar is corroborated in material particulars by the discovery of article 17, _there is no valid reason for departing from the concurrent view of the High Court , and the Sessions Court that the complicity of accused No. 3 in the four murders is proved beyond a reasonable doubt.\n\nAs the charge of conspiracy fails, the High Court was right in convicting accused No. 3 under s. 302 read with s. 34 of the Penal Code only.\n\nThat leaves the case of accused Nos. 9 to 12 for consideration, being the subject-matter of Criminal Appeal No. 437 of 1976 filed by them.\n\nThe charge against these accused is that in furtherance of conspiracy and in pursuance of their common intention they, on January 4, 1974, conunitted the murders of Haribai, aged 35 years, D her daughter Taramati aged 9 years, and her infant child Kamal aged It yearsc The Sessions Court convicted these accused under s. 302 read with ss. !20B and :3\"4 of the Penal Code and sentenced them to life imprisonment.\n\nThe charge of conspiracy having failed before the High Court and the main co-conspirators, accused Nos. 1 and 2, having been acquitted, the High Court convicted these accused under s. 302 read with s. 34 only.\n\nBut, acceptin'.l the appeal filed by the E State, the High 'Court enhanced their sentence from life imprisonment to death.\n\nThe evidence against accused Nos. 9 to 12 consists of : (I) The eye-witness account of Umaji Limbaji .Pitale (P.W. 31); (2) Discoveries effected in pursuance of statements made by the accused; (3) Injuries on accused No. 10; (4) The evidence in regard to the movell ments of the accused at or about the time when the murders were committed and (5) the confession of accused No. 12.\n\nUmaji was working as an agricultural servant with one Balabhau Lad on a daily wage of Rs. 3/-. On January 4, 1974 while he was on his way to one of !he lands of his master, he first met accused No. JO and then accused Nos. 9 and 1!, and had some conversation G with accused No. I 0.\n\nAt about the same time, he saw Haribai carrying her infant child in her arms and a basket of food on her head.\n\nHer other daughter Taramati was walking behind her.\n\nUmaji climbed the Mala, which is a raised pla.tform from which crops are generally watched, and soon thereafter he heard the shrieks of a child.\n\nTurning in the direction from which the shrieks came, he saw accused No. I 0 holding Haribai from behind by her waist and accused No. 9 H giving an axe blow on her head.\n\nAlmost simultaneously, Umaji saw accused No. 12 holding Taramati from behind and accused No. 11 giving an axe blow on her head. Feeling nervous and fearful, jumped down from the Mala, tethered his horse in his master's land, went by\n\nDAGOU v. MAHARASHTRA (Clumdrachud, !.) 653\n\na bus to the Manwat Road Railway Station, took a train to Ranjani A and from there proceeded to the village of lregaon where his maternal uncle Mathaji lived.\n\nAfter staying at Iregaon for about four days, Umaji went back to his master's house at Manwat when a police constable took him to the Police Station, where a Police Officer recorded his statement.\n\nUmaji's evidence having been concurrently accepted by the Sessions ]!, Court and the High Court, we do not propose to undertake a fresh reappraisal of that evidence except to the extent to which the view of the Courts below is contrary to the weight of the record or is otherwise such as is impossib:e in the context to sustain.\n\nOn a careful consideration of Mr. Narayan's closely reasoned submissions, we have formed the conclusion, which does not materially differ from that of the two Courts, that Umaji's evidence cannot be accepted without adc- G quate corroboration.\n\nOur reasons for taking this view are briefly these : Fear and pamc may account for the fact that the witness did not raise an alarm. But there is no reasonable explanation why, having had the presence of mind to tether back the horse, he did not see his master.\n\nThen again, he sojourned from the scene of offence to Iregaon but spoke to none. o; At Iregaon, which was far removed from the scene of Manwat murders, he holidayed with his uncle for four days but even on being questionc<t as to the purpose of his visit, he made no answer.\n\nAfter returning to Manwat he saw his mruster but told him nothing.\n\nHis statement was recorded by the police after two days of close interrogation.\n\nIn regard to accused No. 9, there are two circumstances which afford reliable corroboration to Umaji's evidence.\n\nOn January 11, 1974 accused No. 9 made a statement leading to the discovery of an axe blade, article 160, frCJm his house.\n\nThe panchnama of recovery is Ex. 91-A which is proved by the Panch Sheikh Imam (P.W. !!).\n\nIt shows that accused No. 9 took out an axe blade from below a piece of wood lying behind a cupboard in his house.\n\nThe report of the Serologist, Ex. 267, shows that the axe blade was stained with human blood of 'A' group.\n\nThe blood of the deceased Haribai belonged to the same group.\n\nAccused No. 9 admitted in his examination that he had produced the axe blade and that it was stained with blood but lie sought to explain the blood stains by saying that his wife had sustamcd an injury while hewing wood with the axe.\n\nThat is a flimsy explanation because were it true, it is difficult to understand why such great care was taken to conceal the axe blade.\n\nOn January 21., 1974 a burnt shirt piece, article 170, was recovered in consequence of information given by accused No. 9.\n\nThe Panchnama, Ex. 87-A, and the evidence of the Panch Munjaba (P.W. 25) show that the accused dug ont the shirt piece from under a heap of earth lying inside his house.\n\nArticle 170 was found by the Sessions Judge to fit squarely with the shirt sleeve, article 112, which was found at the place of occurrence near Haribai's dead body.\n\nThe report of the Chemical Analyser at Ex.271 shows that articles 112 and 170 bore identical textile and physiochemical characteristics.\n\nIn our opinion, the courts below were justified in relying upo11 these corroborative circumstances to connect accused No. 9 with the murder of Haribai.\n\nTurning to accused No. 10, an axe handle, article 169, was recovered at his instance on January 17, 1974.\n\nThe Panchanama, Ex. 86-A, and the evidence of the Panch Mohd. Yusuf Bade Khan (P.W. 10) show that the axe handle was recovered from below a thornv fence in the Pardhi Wada locality.\n\nThe report of the serologist, Ex.267, shows that there was human blood on the axe but the group of the blood could not be determined'.\n\nIt is not possible to accept the submission of Mr.\n\nNarayan that the axe handle was recovered from a piace which was easily accessible to the public because the handle was taken out after making quite some efforts to locate it.\n\nAccused No. 10 was the author of its concealment.\n\nOn January 8, 1974 when accused No. 10 was arrested. a turban, bush-shirt and dhoti (articles 150 to 152) were seized from his person.\n\nThe serologist's report, Ex.267, shows that human blood was detected on the bush-shirt and the dhoti.\n\nThe blood-stain on the shirt was 0.5 cm in diameter and the blood detected on the bush-shirt and the dhoti belonged to 'A' group. Accused No. 10 admitted in his examination that the shirt and the dhoti were blood-stained but he offered an unconvincing explanation that a child of his had bled from the nose,\n\nThe evidence of Dr. Salunke (P.W. 48) who examined accused No. 10 on the date of his arrest shows that he had four injuries on his person, the certificate in regard to which is Ex. 174.\n\nInjuries Nos. 1 and 2 were interrupted abrasions which in the opinion of Dr. Salunke\n\ncould be caused by, teeth-bite.\n\nThat fits in with 'the part played by accused No. 10, who according to Umaji's evidence, had held Haribai from behind by her waist.\n\nEvidently, Haribai struggled to release herself in a frantic attempt to save her life she caused the injuries to accused N_o. 10.\n\nWe agree with the view taken by both the Courts that the discovery of the blood-stained axe-handle, the seizure of clothes stained \\vith 'A' group blood and the teeth-bite injuries afford adequate corroboration to Umaji's evidence regarding the part played by accused No. 10 in the murder of Haribai.\n\n. As regards accused No. 11, an axe-blade (article 167) was recovered m consequence of information supplied by him.\n\nThe P:mchanama, Ex. 84-A, and the evidence of the Panch Mohd. Yusuf Bade Khan. (P.W. 10) show that accused No. 11 led the police partv and the panchas .to a wate~ tap i~ the Pardhi Wada locality and dug out the axe blade which was lying buned under a stone.\n\nThe report of 11- - Serologist, Ex. 269, shows that human blood of 'A' group was detected on the axe blade.\n\nTaramati, according to Umaji's evidence, was assaulted with an axe by accused No. 11.\n\nHer clothes, articles 142 and 143. were found to be stained with human blood of 'A' group.\n\nWe see no infirmity in the Pancha's evidence and no substance in the counsel's contention that the discovery of the axe-blade was foisted on the accused.\n\nThe discovery of the axe blade stained with human blood of 'A' group sufficiently cocroborates t_he evidenc~ of Umaji as regards the part played by accused No. 11 in Taramati's murder.\n\nBefore considering the case of accused No. 12, we would like to point out that there is satisfactory evidence to show the presence of accused Nos. 9 to 11 at or near the scene of offence some time before the incident. Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them.\n\nTheir evidence has been examined with great care by the learned Sessions Judge and_ we agree with his assessment that except for Sant Ram, the other witnesses can be relied upon for affording corroboration to Umaji's evidence.\n\nThat leaves the case of accused No. 12 for consideration.\n\nIt is alleged that he held Taramati from behind whereupon accused No. 11 gave axe-blows on her head.\n\nTaramati was just a girl of 9 and the allegation that accused No. 12 had to hold her from behind to enable accused No. 11 to assault her with an axe sounds inherently incredible.\n\nIt is significant that some time before the occurrence, Umaji met accused Nos. 9. 10 and 11 near the scene of offence but not accused No. 12.\n\nThe importance of this circumstance is twofold : Firstly,, that accused No. 12 was not in the company of the other three at or about the time of the incident and secondly that Umaji's identification of the person who held Taramati, namely accused No. 12, becomes somewhat infirm.\n\nThere was standing crop about five feet high between the Mala where Umaji was standing and the place where Taramati was held.\n\nBesides, the spot where Taramati was done to death was in a depression, which would further affect the witness's ability to identify the person who had held Taramati.\n\nAfter all, Umaji had but a fleeting glimpse of the incident and the chance of an error in identifying accused No. 12, who was not seen earlier in the company of accused Nos. 9 to 11, cannot fairly be excluded.\n\nAll the same, since Umaji has no particular reason to implicate F accused No. 12 falsely and since the Courts below have concurrently accepted his evidence in regard to accused No. 12 also, we mnst examine carefully the strenuous submission made by Mr. Desai for the State that even as regards accused No. 12, Umaji's evidence is sufficiently corroborated .\n\nThat corroboration consists of the discovery of an axe-handle article 168, from the house of accused No. 12 on January 17, 1974'.\n\nThe Panchanama of recovery is Ex. 85-A which is proved by the Panch Mohd.\n\nYusuf Bade Khan, P.W. 10. It is alleged that the axe-handle was produced by accused No. 12 from below the tin-sheet roof of his house in Pardhi Wada.\n\nThe report of the serologist, Ex. 269, says that there was human blood of 'A' group on the axehandle.\n\nWe find it impossible to place any reliance on the discovery of the axe-handle for the following reasons : Though accused No. 12 was\n\narrested on January 11, 1974 his house was searched on January 7, 197 4 in connection with the murders of Haribai and her daughters wh'ch had taken place on January 4, 1974.\n\nThat search is borne out by the Panchanama, Ex. 221.\n\nOn January 6, 1974 accused No. 12 figured in an identification parade which was arranged in order to ascertain if the Dog squad could afford assistance in fixing the identity of the culprits.\n\nThe evidence of the Senior Dog Master, Ramchandra ( P. W. 5 2) , shows that a female dog called Mala sniffed her suspicion at accused No. 12.\n\nWith the clue provided by the Dog Squad on the 6th, the house of accused No. 12 was searched on the 7th.\n\nThat house consists of one room only.\n\nThe Panchanama shows that the axe-handle was not in any manner concealed under the tin-sheet. It was lying openly, visible to the naked eye, so that he who cared could easily see it. It is then strange that it was not found on the 7th itself.\n\nThere is also a serious discrepancy in the evidence of the two Panchas, Mohd. Yusuf, P.W. 10, and Sheikh Imam, P.W. 11, regarding the discovery.\n\nWhereas according to the former, accused No. 12 said that he had concealed the axe-handle below the tin-sheet of the roof, according to the latter the information which accused No. 12 gave was that he had kept the handle below a stone inside his house.\n\nCoupled with the circumstance which emerges from the evidence of Panch Sheikh Imam that there is no door to the room from which the axe-handle was produced, the evidence in regard to the recovery of the axe-handle becomes manifestly suspect.\n\nThese infirmities in the recovery of the axe-handle failed to evoke the attention of the High Court.\n\nThe Sessions Court too missed their impact on the point at issue.\n\nThe seizure of a blood-stained Dhoti from the person of accused No. 12 at the time of his arrest, even if the blood l)elonged to 'A' group, is not of a kind which, in the context of the various circumstances referred to above, can be accepted as safely of sufficiently corroborative of Umaji's evidence. This is particularly so because, at the very threshold, it is doubtful if Umaji could identify accused No. 12.\n\nThe evidence regarding the presence of accused No. 12 in the fields roundabout the scene of offence on the afternoon of the day of\n\nincident cannot connect him with the crime.\n\nAnd the retracted confession of the accused, like its counterparts, has to be excluded from consideration altogether because of the cavalier fash'on in which the Sub-Divisional Magistrate recorded the various confessions. •\n\nAccused No. 12 is thus entitled to an acquittal for the reason that L the prosecution has failed to prov~ its case against him beyond a 7 reasonable doubt.\n\nLearned counsel for accused Nos. 3, 9, 10 and 11 whose conviction under s. 302 read with s. 34 has been affirmed by us and who stand sentenced to death, contend that the accused were not heard on the question of sentence and therefore the sentence is not according to Jaw. It is urged that we should remapd the appeal of accused Nos. 9, l O and 11 to the High Court which sentenced them to death.\n\nand accused No. 3's appeal to the Sessions Court which sentenced\n\nA • him to death, in order to enable these accused to make their contentions as to why they should not be sentenced to death even though they have been convicted under s. 302 of the Penal Code. In support of this argument reliance is placed on a decision of this Court in Santa Singh v. State of Punjab(').\n\nIn Santa Singh('), the Sessions Judge, after pronouncing the judgment convicting the appellant for a double murder, did not give him opportunity to be heard on the question of sentence. He pronounced the appellant guilty of murder and, as a part of a single judgment, imposed the sentence of death.\n\nThe High Court confirmed the conviction and the sentence of death.\n\nIn appeal, it was held by this Court (l3hagwati and Fazal Ali, JJ) that the provis•ions of s. 235 of the Code of Criminal Procedure, 1973, which are clear and explicit, require that the Court must in the first instance deliver a judgment or acquitting the accused and if the accused be convicted, he must be given an opportunity to be heard in regard to the sentence. Holding that tl>e provisions of s. 235 are mandatory in character, the Court set aside lhe sentence of death and remanded the case to the Sessions Court with the direction that it should pass an appropriate sentence after giving to the appellant an opportunity to be heard on the question of sentence.\n\nSection 235 of the Criminal Procedure Code, 1973 reads thus\n\n\"235 (1) After hearing arguments and points of law (if\n\nany), the Judge shall give a judgment in th<j case.\n\n(2). If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions_'C>f Section 360, hear the accused op1 the question of. sentence, and then pass sentence on him according to law.\"\n\nThe imperative language of sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under s. 360.\n\nThe right to be heard on the question of sentence has a beneficial purpose, for a variety ot facts and considerations bearing on the sentence can in the exercise of that right, be placed before the Court which the acused, prior to the enactment of the Code of 1973, had no opportunity to do.\n\nThe social compulsions, the pressure of poverty, the rc:c'ibutiv.e instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity-all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of s. 235 (2) must, therefore, be obeyed in its letter and spirit.\n\n(I) [l976] 4 S.C.C.190.\n\n• A\n\nBut we are unable to read the judgment in Santa Singh (supra) as laying down that the fai:ure on the part of the Court, which convicts an accused, to hear him on the question of senteAce must necessarily entail a remand to that Court in order to afford to the accused an opportunity to be heard on the question of sentence.\n\nThe Court on convicting an accused, must unquestionably hear him on the question of sentence.\n\nBut if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open tel that Court to remedy the breach by giving a hearing to the accused on the question of sentence.\n\nThat opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question ot serJence. The accused may exercise that nght either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence.\n\nThe Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence.\n\nThat, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.\n\nBhagwati J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.\n\nThe material on which the accused proposes to rely may therefore, according to the learned Judge, be placed before the Court by means of an affidavit.\n\nFazal Ali, J., also observes that the courts must be vigilant to exercise proper control over their proceedings, that the accused must not be permitted to adopt dilatory tactics under the cover of the new right and that what s. 235 (2) contemplates is a short and simple opportunity to place the necessary material before the Court.\n\nThese observations show that for a proper and effective implementation of the provision contained in s. 235 (2), it is not always necessary to remand the matter to the court which has recorded the conviction.\n\nThe fact that in Santa Singh\n\n(supra) this Court remanded the matter to the Sessions Court does not spell out ratio of the judgment to be that in every such case there has to be a remand.\n\nRemand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.\n\nAfter counsel for accused Nos. 3, 9, 10 and 11 raised an objec- J tion before us that the sentence of death was imposed upon the accused without hearing them as required by s. 235 (2) of the code, d we granted to them liberty to produce before us such material as they desired and to make such contentions as they thought necessary on the question of sentence.\n\nAccordingly, counsel made their oral submissions before us on the question of sentence and they also filed the relevant material before us showing why we should not uphold the dealh sentence imposed on the accused.\n\nThat takes us to the question of sentence.\n\nFor the offence under A s. 302, it is no longer obligaory to impose the sentence of death.\n\nPrior to the amendment of s. 367 (5) of the Code of Criminal Procedure, 1898 by Act 26 of 1955, the normal sentence for mw:der was death and the Court had to record its reasons for imposing the lesser sen:ence of life imprisonment. The obligation to record reasons for imposing the lesser penalty was deleted by Act 26 of 1955, so that Courts became free to award either the sentence of life imprison- B ment or the sentence of death, depending on the circumstances of each individual case.\n\nSection 354(3) of the Code of 1973 provides that when the conviction is for an offence punishable with death or, in the alternative, wi.h imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case. of sentence of death, the special reasons for awarding that sentence.\n\nThe legislative history of the sentencing provisions c and the explicit language of s. 354(3) show that capital punishment can be awarded for the offence of murder, only if there are special reaSons for doing so.\n\nAll murders are inhuman, some only more so than others.\n\nHaving considered the matter in all its aspects-penal, juristic and sociological-and having given our most anxious consideration to the problem, we are of the opinion that accused Nos. 3, 9, 10 and ll D deserve the extreme penalty of law and that there is no justification for interfering with the sentence of death imposed upon them.\n\nAccused No. 3 put an end to four innocent lives, three small girl9 ten years of age and a woman in her thirties.\n\nAccused; Nos. 9, 10 and 11 committed tpe murders of Haribai. her nine-year old daughter and her infant child. The victims had given no cause for E the atrocities perpetrated on them.\n\nThey were killed as a child kills flies.\n\nAnd the brutality accompanying the manner of killing defies an adequate description.\n\nThe luring of small girls, the gagging, the cutting of their private parts, the ruthless defiling in order to prevent identification of the victims and the mysterious motive for the murders call for but one sentence.\n\nNothing short of the death sentence can atone for such cal:ous and calculated transgression of law.\n\nMorbid pity can have no place in the assessment of murders which, in many F respects. will remain unparallelled in the annals of crime. Accordingly, we confirm the death sentence imposed on accused Nos. 3, 9, 10 and 11.\n\nThe overall result is as follows :\n\n(1) We uphold the acquittal of accused Nos. 1 and 2 and dismiss Criminal Appeal No. 441 of 1976 fied by the\n\nState of Maharashtra.\n\nBoth the two Accused who are in jail shall be released.\n\n(2) We uphold the conviction of accused No. 3 under s. 302 read with s. 34 of the Penal Code and the sentence of death imposed upon him.\n\nCriminal Appeal No. 438 of 1976 filed by him is accordingly dismissed.\n\n(3) We uohold the conviction of accused Nos. 9. 10 and 11 under s. 302 read with s. 34 of the Penal Code and\n\n3-707SCI/77\n\nthe sentence of death imposed upon them. We acquit accused No 12 by, giving him the benefit of doubt and direct that he shall be released.\n\nCriminal Appeal No. 437 of 1976 filed by 'accnsed Nos. 9 to 12 thns succeeds partly 'in so far as accused No. t2 is concern- , ed and fails in so far as accused Nos. 9, 10 and 11 are\n\n, concerned.\n\nBefore concluding, we \\Voiiid like to make a reV: observations concerning the detection and, lnvesligation of these crimes. It is a ml; ttfer of grave concern that 'the police were not able to obtain any clue \\vllat- -soeve, r lo, the mirnerous murders whiCh were coilllllltted so systeiria'tically m lhe small village of Manwat. The spate of those atrocities coin-, menced with ihe murder of Gayabai on November 14, 1972 and ended with the murders of Haribai and ber two daughters on January 4. r974.\n\nAll , ilong, a strong patrol ; of p01icemen was keeping vigil in the very\n\nla<; ality in which most of the murders '\\Vere comillitted. The evidence of Dy. S. P. Waghrnare_ shows _that apart riom the rnobile police, fue<lpost patrols were deputed to 'keep a close watch on the activities of , an\n\nand sundry in the area which was chosen by the murderers for -their criminal activities. l!aiibai and her 'daughters Were murdered 'under\n\nthe yery nose of 'the 'PolicerneQ. _ Quite 'a ., f.,!\" of, them .were on duty ; a few hundred yards away om the scene of occurrence and yet the cul-- prits could. escape 'With impilnity. And 1t 'is 'asti:inishing that When the thtee _'dead booies 'were 'lying in <close proximity, the police With t.'teir trained hawk-sight could i:e -only one. All this hardly -does any credit to 'the efficiency a:nd watchfulness of a system which in Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:indrabhai Pawar, accnsed No: 4, to make a c6nfessionhl statement on Deeember 28, 1973 'and the wheel\" of a baflled machine started mo, ing fast. - · It wold perhaps have been more conducive to greater efficiency if.:m uridu1y'large number ofseitlorpolice officers wer_e_Iiot commissioni<d\n\nfodhe 1nves'tigational_work. 'No one seems to have assumed-an 'overall responsibi!ityfor .investiga•ion and so many of them working fogetlier \"!'oiled the broth 'like so many'eooks. . •\n\n- _ _ __\n\n- - It is -plain common-se=-1hat stistS are seldom willing to furnish a quk:k and cotrci:t cine to the 'crimes 'for whirh they are arrested. .A certain amount of coaxing and promising has inevitably to be dorni in order to persuade the accused to disclose at least the outlines of the crime. . But the use of Str<?Ug meiJicids of 'investigation, anart from raising :problems concerning the 'observanee of' decency in public affairs and of'imtnan dignity, 'is frauiibt wilh-ihe'danger lhanhe very process by which evidence in:ouectect 'may beeome suspect and fail to inspire confidence: . Ganpat, the appro\\er, was 'driven to admit that he was tortured while in 'the lock:up and we have 'serious' dnubts whether the injury'carised on his 'head \\<its, ; is a1Jei!ed bv the police, self-inflicted.\n\nA witness 'called Rainch'andra 'also adrmtted that while under interrol!a•\n\ntion the 'police brtlld-ollt his niv-roll. We 'hrive re<;•ted tne f•iHno wi.; h remots even judicially tr:iined _minds to !'evolt against such methods and throw the entire case out of hand. _-But we must, with ncoes for the future, utter a '-ord of warnirig that 'just as crime does not pay\n\nDAGDU v. MAHARASHTRA (Goswami, !.) 661\n\nso shall it 11ot pay to resort to torture of suspects and witnesses during the course of investigation. History shows that misuse of authority is a common human failing and, therefore, Courts must guard against all excesses.\n\nThe police, with their wide powers, are apt to overs(ep their zeal to dt:tect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must, in the larger interests of justice, be nipped in th0 bud.\n\nGosWAMi, J.-I am in agreement with the judgment proposed by my brother Cbaruirachud which is a piece of conspicuous clarity after marshalling and compressing a mass of evidence.\n\nI also agree with the views expressed therein on the legal questions raised in the5': appeals .\n\nEven so r foe! obliged to add a few lines.\n\nI would particularly emphasise that there is no mandatory direction tor remanding any case in Santa Singh v. The State of Punjab(') nor is remand the inevitable recipe of section 235 (2) Code of Criminal Procedure, 1973. Whenever an appeal court finds that the mandate of section 235(2) Cr. P. C. for a hearing on sentence had not been complied with, ii, at once, becomes the duty of the appeal court to offer to the accullCd au adequate opportunity to produce before it whatever materials he chooses in whatever reasonable way possible. Courts should avoid laws' delay and necessarily inconsequential remands when the ac~ can secure full benefit of section 235 (2) Cr. P.C. even in the appeal court, in the High Court or even in this Court.\n\nWe have unanimously adopted this very course in these appeals.\n\nTreasure-trove legend survives generations. There had been many cawalties in honest exploits to the peaks of gold bars. Gold was not found.\n\nSo wJS ti-easnre-trove not located in spite of the notorious Manwat murders.\n\nThe gruesome story revealed in these cases beggars description of the !imi• of human credulity, horrid avarice and unconcerned and heartless execution of evil ends. I am not on that. The final curtain, so far as legal process goes,, is drawn.\n\nConviction in these cases does no credit to the police, nor to -the hoodwinking demonstration of flashy \"dog-squad'. Murders committed. one after •Ire other in series, under the very nose of a publicised ring of a camping platoon of police personnel widely cordoning the entire scene of occurrnnce for months with check-posts, for recording names\n\nof passers-by, may secure banner in newspapers, but no laurels for G the police. ·\n\nBut for th.o blazing lust for life of the confessing approvers supplying the infrastructure for the prosecution case which, we find, is corrobora'ed in material particulars by independent testimony so far as some of the appellants arc concerned, there is much more to be desired in an investigation of such awe-inspiring cases. The archaic attempt to secure con- H fessions by hook or by crook seems to be the be-all and end-all of the\n\n(tl [t976J (41sec190.\n\npolice investigation. The investigation does not reflect any imaginative drive on the part of the police in a crime of this magnitude.\n\nTo mention one item only, even Balabhau Lad, a close neighbouring relative of the deceased Haribai and master of Umaji, the star witness against accused 9 to 12, has not been produced in this case to corroborate the sudden and instant disappearance of Umaji for four days from the very scene of murder, being his master's field, by leaving his horse tethered therein. Next,, having got blood stains in the articles produced by the accused there was no attempt to ascertain the blood group of the accused's family members. In fact accused No. 9 did tell the court that the blood stains in the exhibit were from his wife's injury from the axe.\n\nAgain, accused No. 10 said that the blood stains on the exhibited clothes were from his child's bleeding nose. We have disbelieved the pleas of the accused but that does not redound to the credit of the quality of the investigation of these dastardly crimes.\n\nIt is distressing that when three murders took place ou the 4th of January, 1974, and all the dead bodies were lying at the same field, only one _dead body was located and the other two were not traced until next morning. If the murderers could escape om the barricaded area in brood day light by throwing dust in the eyes of the police, what would have happened if the other two dead bodies were removed during the night beyond trace ? Is this investigation with a 'dog-squad' at command ? A dog is its master's voice. Did the police play the trne master?\n\nThe police should remember that confession may not always be a , short-cut to solution.\n\nInstead of trying to \"start\" from a confession they should strive to \"arrive\" at it. Else, when they are busy on this short route to success, good evidence may disappear dne to inattention to the real clues. Once a confession is obtained, there is often flagging of zeal for a full and thorough investigation with a view to establish the case de hors the confession. It is often a sad experience to find that on the confession, later, being inadmissible for one reason or other the case founders in court.\n\nIt is an irony that a Sub-Divisional Magistrate holding executive charge of a Sub-Division was completely ignorant of the duties imposed on him under section 164, Code of Criminal Procedure and we had to reject the confessions. Under the new Code such powers are exercised by a Metropolitan or Judicial Magistrate.\n\nThe pitfalls in recording confession may be so disastrous that it may be of immense value for the Magistrates to have some practical guidance from superior officers for properly discharging their function under section 164, Cr. P.C.\n\nEven after conclusion of the trial iu a heinous case of •his magnitude, the police should be well-advised to pursue clues and for missing links to unearth the yet undiscovered guilty ones and should not rest satisfied with tlie result of these cases. There is yet room for a wider probe into men ; md matters in connection with these ghastly crimes.\n\nDAGDU v. MAHARASHTRA (Goswami, !.) 663\n\nCounsel drew our attention to a very disquieting feature in the attempt of the police to see that the accused did not get the assistance of the local Bar.\n\nThe suggestion has of course been denied by the police officer. If there is any truth in this unholy move for denying proper defence to the accused, no matter how heinous the offence, it is highly obnoxious to the notions of fair play and all that justice stands for. Such ideas should be banished. •\n\nI hasten to add that the accused before us could not have been better defended as has been done by the three conscientious young counsel who impressed us with their industry and ability.\n\nP.H.P.\n\nA ,", "total_entities": 289, "entities": [{"text": "DAGDU & OTHERS ETC", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "DAGDU & OTHERS ETC", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 24, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 63, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "Y. V. CHANDRACHUD", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 82, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "P. K. 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null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 14435, "end_char": 14445, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sec. 302", "label": "PROVISION", "start_char": 14496, "end_char": 14504, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 120", "label": "PROVISION", "start_char": 14515, "end_char": 14523, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 34", "label": "PROVISION", "start_char": 14530, "end_char": 14537, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 14545, "end_char": 14555, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 14695, "end_char": 14712, "source": "ner", "metadata": {"in_sentence": "The matter went to the Bombay High Court in various forms."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15097, "end_char": 15101, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code 1973", "label": "STATUTE", "start_char": 15112, "end_char": 15140, "source": "regex", "metadata": {}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16005, "end_char": 16011, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code 1973", "statute": "the Criminal Procedure Code 1973"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 16022, "end_char": 16027, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code 1973", "statute": "the Criminal Procedure Code 1973"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16128, "end_char": 16134, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code 1973", "statute": "the Criminal Procedure Code 1973"}}, {"text": "s. 120", "label": "PROVISION", "start_char": 16145, "end_char": 16151, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16556, "end_char": 16562, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 16573, "end_char": 16578, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16692, "end_char": 16698, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 120", "label": "PROVISION", "start_char": 16709, "end_char": 16715, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 17066, "end_char": 17072, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 17083, "end_char": 17088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 17254, "end_char": 17259, "source": "regex", "metadata": {"statute": null}}, {"text": "Manwat", "label": "GPE", "start_char": 17360, "end_char": 17366, "source": "ner", "metadata": {"in_sentence": "The hamlet of Manwat has a population of 15 thousand and is situated in Taluka Pathri, District Parbhani, Maharashtra."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 17452, "end_char": 17463, "source": "ner", "metadata": {"in_sentence": "The hamlet of Manwat has a population of 15 thousand and is situated in Taluka Pathri, District Parbhani, Maharashtra."}}, {"text": "Rukhinini", "label": "PETITIONER", "start_char": 17480, "end_char": 17489, "source": "ner", "metadata": {"in_sentence": "1 Rukhinini was about 32 years of age at the relevant time and despi~ the pledg~ to secularism, it has to be mentioned that she is Pardhi by caste."}}, {"text": "Uttall':rao Barahate", "label": "OTHER_PERSON", "start_char": 17668, "end_char": 17688, "source": "ner", "metadata": {"in_sentence": "2, Uttall':rao Barahate a non-pardhi, who is a man of means and was at one time\n\nthe President of the Manwat Municipality."}}, {"text": "Manwat Municipality", "label": "GPE", "start_char": 17767, "end_char": 17786, "source": "ner", "metadata": {"in_sentence": "2, Uttall':rao Barahate a non-pardhi, who is a man of means and was at one time\n\nthe President of the Manwat Municipality."}}, {"text": "Murtazahad", "label": "OTHER_PERSON", "start_char": 18728, "end_char": 18738, "source": "ner", "metadata": {"in_sentence": "The Manwant village-folk commonly believe that treasure troves are lying buried in the town ever since the sixteenth century when its inhabitants fled away after the troops of Murtazahad invaded the town, which was then under the Nizamshahi of Ahmednagar."}}, {"text": "Ahmednagar", "label": "GPE", "start_char": 18796, "end_char": 18806, "source": "ner", "metadata": {"in_sentence": "The Manwant village-folk commonly believe that treasure troves are lying buried in the town ever since the sixteenth century when its inhabitants fled away after the troops of Murtazahad invaded the town, which was then under the Nizamshahi of Ahmednagar."}}, {"text": "Naivedya", "label": "OTHER_PERSON", "start_char": 19784, "end_char": 19792, "source": "ner", "metadata": {"in_sentence": "1 and 2 consulted quacks who prescribed that virgins should be offered as sacrifice to Munjaba and blood from their private parts be sprinkled on the food offered by way of Naivedya ta the God."}}, {"text": "E Ganpat Salve", "label": "WITNESS", "start_char": 19829, "end_char": 19843, "source": "ner", "metadata": {"in_sentence": "One of such quacks was E Ganpat Salve, the approver, who was examined as P.W. 1."}}, {"text": "Ganpat", "label": "OTHER_PERSON", "start_char": 19898, "end_char": 19904, "source": "ner", "metadata": {"in_sentence": "Accepting Ganpat's advice, accused Nos."}}, {"text": ".Shankar Gyanoba Kate", "label": "OTHER_PERSON", "start_char": 20042, "end_char": 20063, "source": "ner", "metadata": {"in_sentence": "Ganpat himself joined the conspiracy and so did .Shankar Gyanoba Kate who was a servant of accused No.", "canonical_name": ".Shankar Gyanoba Kate"}}, {"text": "Shankar", "label": "WITNESS", "start_char": 20101, "end_char": 20108, "source": "ner", "metadata": {"in_sentence": "Shankar, also an approver, was examined in the case as P.W. 2."}}, {"text": "November 14, 1972", "label": "DATE", "start_char": 20333, "end_char": 20350, "source": "ner", "metadata": {"in_sentence": "In pursuance of the conspiracy, ten murders F were coirullitted between November 14, 1972 and January 4, 1974."}}, {"text": "January 4, 1974", "label": "DATE", "start_char": 20355, "end_char": 20370, "source": "ner", "metadata": {"in_sentence": "In pursuance of the conspiracy, ten murders F were coirullitted between November 14, 1972 and January 4, 1974."}}, {"text": "Shankar", "label": "OTHER_PERSON", "start_char": 20447, "end_char": 20454, "source": "ner", "metadata": {"in_sentence": "The first four murders are alleged to have been committed by the aporover Shankar and accused No.", "canonical_name": "Shankar"}}, {"text": "Sopan", "label": "OTHER_PERSON", "start_char": 20474, "end_char": 20479, "source": "ner", "metadata": {"in_sentence": "3, Sopan, who was also in the employment of accused No."}}, {"text": "Gayabai", "label": "OTHER_PERSON", "start_char": 20530, "end_char": 20537, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. .", "canonical_name": "Gayabai E"}}, {"text": "14, 1972", "label": "DATE", "start_char": 20577, "end_char": 20585, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. ."}}, {"text": "Shakila", "label": "PETITIONER", "start_char": 20587, "end_char": 20594, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. .", "canonical_name": "Shakila"}}, {"text": "December 9, 1972", "label": "DATE", "start_char": 20626, "end_char": 20642, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. ."}}, {"text": "Sugandhabai", "label": "PETITIONER", "start_char": 20644, "end_char": 20655, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. .", "canonical_name": "Sugandhabai"}}, {"text": "G Febrn•rv 21, 1973", "label": "DATE", "start_char": 20687, "end_char": 20706, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. ."}}, {"text": "Nasima", "label": "PETITIONER", "start_char": 20711, "end_char": 20717, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. .", "canonical_name": "Nasima"}}, {"text": "April 13, 1973", "label": "DATE", "start_char": 20747, "end_char": 20761, "source": "ner", "metadata": {"in_sentence": "Gayabai, a girl of 11 was murdered on November 14, 1972; Shakila, a girl of 10, was murdered on December 9, 1972; Sugandhabai, a woman of 35 was murdered on G Febrn•rv 21, 1973 and Nasima a girl of 10 was murdered on April 13, 1973. ."}}, {"text": "Shakila", "label": "PETITIONER", "start_char": 20927, "end_char": 20934, "source": "ner", "metadata": {"in_sentence": "Gayabai, Shakila and Sugandhabai had evidently died in vain and therefore Nasima, the fourth victim, was beheaded so that the severed head could be offered to propitiate the deity.", "canonical_name": "Shakila"}}, {"text": "Sugandhabai", "label": "PETITIONER", "start_char": 20939, "end_char": 20950, "source": "ner", "metadata": {"in_sentence": "Gayabai, Shakila and Sugandhabai had evidently died in vain and therefore Nasima, the fourth victim, was beheaded so that the severed head could be offered to propitiate the deity.", "canonical_name": "Sugandhabai"}}, {"text": "Nasima", "label": "PETITIONER", "start_char": 20992, "end_char": 20998, "source": "ner", "metadata": {"in_sentence": "Gayabai, Shakila and Sugandhabai had evidently died in vain and therefore Nasima, the fourth victim, was beheaded so that the severed head could be offered to propitiate the deity.", "canonical_name": "Nasima"}}, {"text": "Kalavati", "label": "PETITIONER", "start_char": 21333, "end_char": 21341, "source": "ner", "metadata": {"in_sentence": "Kalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973.", "canonical_name": "Kalavati"}}, {"text": "Jurte 29, 1973", "label": "DATE", "start_char": 21374, "end_char": 21388, "source": "ner", "metadata": {"in_sentence": "Kalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973."}}, {"text": "Halima", "label": "PETITIONER", "start_char": 21393, "end_char": 21399, "source": "ner", "metadata": {"in_sentence": "Kalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973.", "canonical_name": "Halima"}}, {"text": "July 12, 1973", "label": "DATE", "start_char": 21418, "end_char": 21431, "source": "ner", "metadata": {"in_sentence": "Kalavati, a woman of 30, was murdered on Jurte 29, 1973 and Halima, a girl of 11, on July 12, 1973."}}, {"text": "Patvatibai", "label": "OTHER_PERSON", "start_char": 21673, "end_char": 21683, "source": "ner", "metadata": {"in_sentence": "The seventh murder is alleged to have been committed by accused Nos: 7 and 8 when Patvatibai, aged about 35, was murdered on October 8; 1973."}}, {"text": "October 8; 1973", "label": "DATE", "start_char": 21716, "end_char": 21731, "source": "ner", "metadata": {"in_sentence": "The seventh murder is alleged to have been committed by accused Nos: 7 and 8 when Patvatibai, aged about 35, was murdered on October 8; 1973."}}, {"text": "Taravati", "label": "OTHER_PERSON", "start_char": 22013, "end_char": 22021, "source": "ner", "metadata": {"in_sentence": "9 to 12, all at the silnle tinie; Hatil:fai, aged' 35; Wl!s going along with her daughter Taravati aged 9 and was carrying in' her arms an infant daughter, Kamal, aged a year and half.", "canonical_name": "Taravati"}}, {"text": "Kamal", "label": "OTHER_PERSON", "start_char": 22079, "end_char": 22084, "source": "ner", "metadata": {"in_sentence": "9 to 12, all at the silnle tinie; Hatil:fai, aged' 35; Wl!s going along with her daughter Taravati aged 9 and was carrying in' her arms an infant daughter, Kamal, aged a year and half."}}, {"text": "June 18, 1973", "label": "DATE", "start_char": 22219, "end_char": 22232, "source": "ner", "metadata": {"in_sentence": "1, 2, and 14 were arrest&l on June 18, 1973 in connection with the first four murders which had taken place between Nomber 14, 1972 and April 13, 1973."}}, {"text": "s. 5 and 6", "label": "PROVISION", "start_char": 22539, "end_char": 22549, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalavati", "label": "PETITIONER", "start_char": 22643, "end_char": 22651, "source": "ner", "metadata": {"in_sentence": "of Kalavati and.", "canonical_name": "Kalavati"}}, {"text": "Halima", "label": "PETITIONER", "start_char": 22657, "end_char": 22663, "source": "ner", "metadata": {"in_sentence": "Halima in June and July, 1973.", "canonical_name": "Halima"}}, {"text": "July 30, 1973", "label": "DATE", "start_char": 22691, "end_char": 22704, "source": "ner", "metadata": {"in_sentence": "On July 30, 1973 accused Nos'."}}, {"text": "Ganpat", "label": "WITNESS", "start_char": 24274, "end_char": 24280, "source": "ner", "metadata": {"in_sentence": "'The prosecution relied inter ali/J on: the evidence of the two apptovers, Ganpat, P.W. 1, and Shaitkar, P.W. 2, in order to prove the' chi!tge of conspiracy against accused' Nos."}}, {"text": "Shaitkar", "label": "WITNESS", "start_char": 24294, "end_char": 24302, "source": "ner", "metadata": {"in_sentence": "'The prosecution relied inter ali/J on: the evidence of the two apptovers, Ganpat, P.W. 1, and Shaitkar, P.W. 2, in order to prove the' chi!tge of conspiracy against accused' Nos."}}, {"text": "Section 13", "label": "PROVISION", "start_char": 24817, "end_char": 24827, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 114", "label": "PROVISION", "start_char": 25051, "end_char": 25062, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 25366, "end_char": 25372, "source": "regex", "metadata": {"statute": null}}, {"text": "Reading", "label": "OTHER_PERSON", "start_char": 27436, "end_char": 27443, "source": "ner", "metadata": {"in_sentence": "Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that thongh there was no doubt that the uncorrooorated evidence of an accomplice was admissible in law it was for a long time a rule of practice t _common law for the Judge to warn the Jury 0£ the danger ?"}}, {"text": "England", "label": "GPE", "start_char": 27471, "end_char": 27478, "source": "ner", "metadata": {"in_sentence": "Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that thongh there was no doubt that the uncorrooorated evidence of an accomplice was admissible in law it was for a long time a rule of practice t _common law for the Judge to warn the Jury 0£ the danger ?"}}, {"text": "India", "label": "GPE", "start_char": 28494, "end_char": 28499, "source": "ner", "metadata": {"in_sentence": "In Rameshwar v. State of Rajasthan(') this Court observed that the branch otf law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England."}}, {"text": "Baskerville", "label": "OTHER_PERSON", "start_char": 28586, "end_char": 28597, "source": "ner", "metadata": {"in_sentence": "In Rameshwar v. State of Rajasthan(') this Court observed that the branch otf law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's (supra) case by the Lord Chief Justice of England."}}, {"text": "s. 133", "label": "PROVISION", "start_char": 29167, "end_char": 29173, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 29198, "end_char": 29204, "source": "regex", "metadata": {"statute": null}}, {"text": "John Beaumont", "label": "OTHER_PERSON", "start_char": 29842, "end_char": 29855, "source": "ner", "metadata": {"in_sentence": "Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomolice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himse.rn betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution: the real danger is that he is telling a story whtch in its general outline is true, and it is easy for him to work into the story matter which is untrue."}}, {"text": "Singh", "label": "PETITIONER", "start_char": 30937, "end_char": 30942, "source": "ner", "metadata": {"in_sentence": "Singh('); Hari Charan Kurmi v. State of Bihar;(2) Haroon Haji A Abdulla V State of Maharashtra;(') and Ravinder Singh v. State of llaryana(')."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 31100, "end_char": 31114, "source": "ner", "metadata": {"in_sentence": "In Hari Charan( 2 ) Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under s. 3 of the Evidence Act and has to be dealt with as such."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 31217, "end_char": 31221, "source": "regex", "metadata": {"statute": null}}, {"text": "Ganpat Bhagoji Salve", "label": "WITNESS", "start_char": 31630, "end_char": 31650, "source": "ner", "metadata": {"in_sentence": "Ganpat Bhagoji Salve, P.W. I, fails to cross the initial hurdle of reliability and no amount of corroboration cure the infirmities which beset his evidence."}}, {"text": "Gayabai E", "label": "OTHER_PERSON", "start_char": 32599, "end_char": 32608, "source": "ner", "metadata": {"in_sentence": "3 and Shankar conunitted the murders of Gayabai E and Shakita and handed over the bowlful of blood from the private parts of the victims to accused Nos.", "canonical_name": "Gayabai E"}}, {"text": "Shakita", "label": "PETITIONER", "start_char": 32613, "end_char": 32620, "source": "ner", "metadata": {"in_sentence": "3 and Shankar conunitted the murders of Gayabai E and Shakita and handed over the bowlful of blood from the private parts of the victims to accused Nos.", "canonical_name": "Shakila"}}, {"text": "Baramati", "label": "GPE", "start_char": 33148, "end_char": 33156, "source": "ner", "metadata": {"in_sentence": "100 whereupon he made himself scarce and left for a place called Baramati from where he was traced by the police."}}, {"text": "[1964] 6 SCR 623", "label": "CASE_CITATION", "start_char": 33898, "end_char": 33914, "source": "regex", "metadata": {}}, {"text": "[1975] 3 SCR 453", "label": "CASE_CITATION", "start_char": 33920, "end_char": 33936, "source": "regex", "metadata": {}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 35117, "end_char": 35122, "source": "ner", "metadata": {"in_sentence": "Conceding the ratio of Tahsildar's( 2 ) case, on , which Mr.\n\nDesai for the State Government relies, the conclusion seems to us inescapable that Ganpat has mixed a ton of falsehood with an ounce of truth."}}, {"text": "Shankar Gyanoba Kate", "label": "WITNESS", "start_char": 35341, "end_char": 35361, "source": "ner", "metadata": {"in_sentence": "The other approver Shankar Gyanoba Kate, P.W. 2, has greater credibility than Ganpat."}}, {"text": "Shaki!a", "label": "PETITIONER", "start_char": 35717, "end_char": 35724, "source": "ner", "metadata": {"in_sentence": "He has unreservedly admitted having committed the murders of Gayabai, Shaki!a, Sugandhabai and Nasima with accused No.", "canonical_name": "Shakila"}}, {"text": "s. 164", "label": "PROVISION", "start_char": 37718, "end_char": 37724, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 37733, "end_char": 37759, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 164", "label": "PROVISION", "start_char": 38374, "end_char": 38380, "source": "regex", "metadata": {"statute": null}}, {"text": "Shanker", "label": "OTHER_PERSON", "start_char": 38542, "end_char": 38549, "source": "ner", "metadata": {"in_sentence": "It is true that Shanker was under a higher obligation while deposing in the Court because as a condi- D tion of the pardon tenderedl to him he had to disclos<> the whole truth to the Court.", "canonical_name": "Shankar"}}, {"text": "Laxman", "label": "WITNESS", "start_char": 39343, "end_char": 39349, "source": "ner", "metadata": {"in_sentence": "For affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,"}}, {"text": "Sakharam", "label": "WITNESS", "start_char": 39361, "end_char": 39369, "source": "ner", "metadata": {"in_sentence": "For affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,"}}, {"text": "Ramchandra", "label": "WITNESS", "start_char": 39381, "end_char": 39391, "source": "ner", "metadata": {"in_sentence": "For affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,"}}, {"text": "Kachru", "label": "WITNESS", "start_char": 39406, "end_char": 39412, "source": "ner", "metadata": {"in_sentence": "For affording corroboration to Shankar's evidence reliance is placed on the evidence of four witnesses-Laxman (P.W. 19), Sakharam (P.W. 29), Ramchandra (P.W. 30) and Kachru (P.W. 34).,"}}, {"text": "LaXInan", "label": "OTHER_PERSON", "start_char": 39774, "end_char": 39781, "source": "ner", "metadata": {"in_sentence": "LaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.'"}}, {"text": "Sakharam", "label": "OTHER_PERSON", "start_char": 39821, "end_char": 39829, "source": "ner", "metadata": {"in_sentence": "LaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.'"}}, {"text": "Ramchandra", "label": "OTHER_PERSON", "start_char": 39869, "end_char": 39879, "source": "ner", "metadata": {"in_sentence": "LaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.'"}}, {"text": "Kachru", "label": "OTHER_PERSON", "start_char": 39954, "end_char": 39960, "source": "ner", "metadata": {"in_sentence": "LaXInan says nothing about the treasure trove, Sakharam merely G carried the errand to Ganpat, Ramchandra was mauled by the police who pulled out his pig-tail and the quack called Kachru only prescribed a medicine for accused No.'"}}, {"text": "Rukhmani", "label": "OTHER_PERSON", "start_char": 41774, "end_char": 41782, "source": "ner", "metadata": {"in_sentence": "1 Rukhmani."}}, {"text": "Devidas Sakharam Pawar", "label": "JUDGE", "start_char": 41847, "end_char": 41869, "source": "ner", "metadata": {"in_sentence": "That confession was recorded by a Sub-Divisional Magistrate', Devidas Sakharam Pawar, P. W. 23."}}, {"text": "Sopan Rambhau Salve", "label": "WITNESS", "start_char": 42689, "end_char": 42708, "source": "ner", "metadata": {"in_sentence": "3, Sopan Rambhau Salve."}}, {"text": "9, 1972", "label": "DATE", "start_char": 42851, "end_char": 42858, "source": "ner", "metadata": {"in_sentence": "The allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of sugandhabai on February 21, 1973 and of Nasima on April 13, 1973."}}, {"text": "sugandhabai", "label": "PETITIONER", "start_char": 42863, "end_char": 42874, "source": "ner", "metadata": {"in_sentence": "The allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of sugandhabai on February 21, 1973 and of Nasima on April 13, 1973.", "canonical_name": "Sugandhabai"}}, {"text": "February 21, 1973", "label": "DATE", "start_char": 42878, "end_char": 42895, "source": "ner", "metadata": {"in_sentence": "The allegation against him is that he and the approver Shankar committed the murder of Gayabai on November 14, 1972, of Shakila on December 9, 1972, of sugandhabai on February 21, 1973 and of Nasima on April 13, 1973."}}, {"text": "article 17", "label": "PROVISION", "start_char": 43154, "end_char": 43164, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 18 and 19", "label": "PROVISION", "start_char": 43200, "end_char": 43218, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 20 and 21", "label": "PROVISION", "start_char": 43255, "end_char": 43273, "source": "regex", "metadata": {"statute": null}}, {"text": "Sugandabhai", "label": "PETITIONER", "start_char": 44535, "end_char": 44546, "source": "ner", "metadata": {"in_sentence": "3 played a more significant role in the murder of Sugandabhai by axing her to death.", "canonical_name": "Sugandhabai"}}, {"text": "article 17", "label": "PROVISION", "start_char": 45013, "end_char": 45023, "source": "regex", "metadata": {"statute": null}}, {"text": "January 2, 1974", "label": "DATE", "start_char": 45072, "end_char": 45087, "source": "ner", "metadata": {"in_sentence": "127) is dated January 2, 1974 and is proved by tbe Pancha Vithalrai Takankhar (P.W. 27)."}}, {"text": "Pancha Vithalrai Takankhar", "label": "WITNESS", "start_char": 45109, "end_char": 45135, "source": "ner", "metadata": {"in_sentence": "127) is dated January 2, 1974 and is proved by tbe Pancha Vithalrai Takankhar (P.W. 27)."}}, {"text": "Bhonde", "label": "OTHER_PERSON", "start_char": 45371, "end_char": 45377, "source": "ner", "metadata": {"in_sentence": "Mr. Bhonde who appears for accused No."}}, {"text": "S. P. Waghmare", "label": "WITNESS", "start_char": 45931, "end_char": 45945, "source": "ner", "metadata": {"in_sentence": "S. P. Waghmare (P. W. 96) is to the same effect."}}, {"text": "art. 18", "label": "PROVISION", "start_char": 46865, "end_char": 46872, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 19", "label": "PROVISION", "start_char": 46893, "end_char": 46900, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 20", "label": "PROVISION", "start_char": 47027, "end_char": 47034, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 21", "label": "PROVISION", "start_char": 47052, "end_char": 47059, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 47731, "end_char": 47741, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 163", "label": "PROVISION", "start_char": 48244, "end_char": 48255, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 48432, "end_char": 48437, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 48445, "end_char": 48464, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 164", "label": "PROVISION", "start_char": 48467, "end_char": 48478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 554", "label": "PROVISION", "start_char": 48565, "end_char": 48571, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code, 1898", "label": "STATUTE", "start_char": 48579, "end_char": 48608, "source": "regex", "metadata": {}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 48614, "end_char": 48634, "source": "ner", "metadata": {"in_sentence": "Acting under s. 554 of the Criminal Procedure Code, 1898, the High Court of Bombay had framed instructioµs for the guidance of Magistrates while recording confessional statements."}}, {"text": "Devidas Sakharam Pawar", "label": "WITNESS", "start_char": 49619, "end_char": 49641, "source": "ner", "metadata": {"in_sentence": "(1) [1957] S.C.R. 953\n\nAll of the eight confessions were recorded in this case by a Sub- A Divisional Magistrate, Devidas Sakharam Pawar (P. W. 23), whose evidence leaves no room for doubt that he was blissfully unaware or\n\nthe stringent responsibilities cast by law on Magistrates who are called upon to record confessions."}}, {"text": "s. 164", "label": "PROVISION", "start_char": 50500, "end_char": 50506, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 164(3)", "label": "PROVISION", "start_char": 51354, "end_char": 51363, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 51365, "end_char": 51388, "source": "regex", "metadata": {}}, {"text": "Section 29", "label": "PROVISION", "start_char": 51599, "end_char": 51609, "source": "regex", "metadata": {"linked_statute_text": "Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act", "statute": "Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act"}}, {"text": "ss. 24 to 28", "label": "PROVISION", "start_char": 51933, "end_char": 51945, "source": "regex", "metadata": {"linked_statute_text": "Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act", "statute": "Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act"}}, {"text": "s. 164", "label": "PROVISION", "start_char": 52689, "end_char": 52695, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 164", "label": "PROVISION", "start_char": 53154, "end_char": 53160, "source": "regex", "metadata": {"statute": null}}, {"text": "article 17", "label": "PROVISION", "start_char": 53535, "end_char": 53545, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 53844, "end_char": 53850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 53861, "end_char": 53866, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 53874, "end_char": 53884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Haribai", "label": "OTHER_PERSON", "start_char": 54197, "end_char": 54204, "source": "ner", "metadata": {"in_sentence": "The charge against these accused is that in furtherance of conspiracy and in pursuance of their common intention they, on January 4, 1974, conunitted the murders of Haribai, aged 35 years, D her daughter Taramati aged 9 years, and her infant child Kamal aged It yearsc The Sessions Court convicted these accused under s. 302 read with ss. !"}}, {"text": "Taramati", "label": "OTHER_PERSON", "start_char": 54236, "end_char": 54244, "source": "ner", "metadata": {"in_sentence": "The charge against these accused is that in furtherance of conspiracy and in pursuance of their common intention they, on January 4, 1974, conunitted the murders of Haribai, aged 35 years, D her daughter Taramati aged 9 years, and her infant child Kamal aged It yearsc The Sessions Court convicted these accused under s. 302 read with ss. !", "canonical_name": "Taravati"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 54350, "end_char": 54356, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 54392, "end_char": 54402, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302", "label": "PROVISION", "start_char": 54626, "end_char": 54632, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 54643, "end_char": 54648, "source": "regex", "metadata": {"statute": null}}, {"text": "Umaji Limbaji .Pitale", "label": "WITNESS", "start_char": 54867, "end_char": 54888, "source": "ner", "metadata": {"in_sentence": "9 to 12 consists of : (I) The eye-witness account of Umaji Limbaji .Pitale (P.W. 31); (2) Discoveries effected in pursuance of statements made by the accused; (3) Injuries on accused No."}}, {"text": "Umaji", "label": "PETITIONER", "start_char": 55163, "end_char": 55168, "source": "ner", "metadata": {"in_sentence": "Umaji was working as an agricultural servant with one Balabhau Lad on a daily wage of Rs.", "canonical_name": "Umaji"}}, {"text": "Balabhau Lad", "label": "OTHER_PERSON", "start_char": 55217, "end_char": 55229, "source": "ner", "metadata": {"in_sentence": "Umaji was working as an agricultural servant with one Balabhau Lad on a daily wage of Rs."}}, {"text": "Umaji", "label": "PETITIONER", "start_char": 55612, "end_char": 55617, "source": "ner", "metadata": {"in_sentence": "Umaji climbed the Mala, which is a raised pla.tform from which crops are generally watched, and soon thereafter he heard the shrieks of a child.", "canonical_name": "Umaji"}}, {"text": "Ranjani A", "label": "GPE", "start_char": 56265, "end_char": 56274, "source": "ner", "metadata": {"in_sentence": "653\n\na bus to the Manwat Road Railway Station, took a train to Ranjani A and from there proceeded to the village of lregaon where his maternal uncle Mathaji lived."}}, {"text": "lregaon", "label": "GPE", "start_char": 56318, "end_char": 56325, "source": "ner", "metadata": {"in_sentence": "653\n\na bus to the Manwat Road Railway Station, took a train to Ranjani A and from there proceeded to the village of lregaon where his maternal uncle Mathaji lived."}}, {"text": "Mathaji", "label": "OTHER_PERSON", "start_char": 56351, "end_char": 56358, "source": "ner", "metadata": {"in_sentence": "653\n\na bus to the Manwat Road Railway Station, took a train to Ranjani A and from there proceeded to the village of lregaon where his maternal uncle Mathaji lived."}}, {"text": "Iregaon", "label": "GPE", "start_char": 56384, "end_char": 56391, "source": "ner", "metadata": {"in_sentence": "After staying at Iregaon for about four days, Umaji went back to his master's house at Manwat when a police constable took him to the Police Station, where a Police Officer recorded his statement."}}, {"text": "Narayan", "label": "LAWYER", "start_char": 56929, "end_char": 56936, "source": "ner", "metadata": {"in_sentence": "On a careful consideration of Mr. Narayan's closely reasoned submissions, we have formed the conclusion, which does not materially differ from that of the two Courts, that Umaji's evidence cannot be accepted without adc- G quate corroboration.", "canonical_name": "P. Narayan"}}, {"text": "Iregaon", "label": "OTHER_PERSON", "start_char": 57457, "end_char": 57464, "source": "ner", "metadata": {"in_sentence": "Then again, he sojourned from the scene of offence to Iregaon but spoke to none."}}, {"text": "Manwat", "label": "OTHER_PERSON", "start_char": 57698, "end_char": 57704, "source": "ner", "metadata": {"in_sentence": "After returning to Manwat he saw his mruster but told him nothing."}}, {"text": "January 11, 1974", "label": "DATE", "start_char": 57945, "end_char": 57961, "source": "ner", "metadata": {"in_sentence": "On January 11, 1974 accused No."}}, {"text": "article 160", "label": "PROVISION", "start_char": 58035, "end_char": 58046, "source": "regex", "metadata": {"statute": null}}, {"text": "January 21., 1974", "label": "DATE", "start_char": 58820, "end_char": 58837, "source": "ner", "metadata": {"in_sentence": "On January 21.,"}}, {"text": "article 170", "label": "PROVISION", "start_char": 58859, "end_char": 58870, "source": "regex", "metadata": {"statute": null}}, {"text": "Panch Munjaba", "label": "WITNESS", "start_char": 58990, "end_char": 59003, "source": "ner", "metadata": {"in_sentence": "87-A, and the evidence of the Panch Munjaba (P.W. 25) show that the accused dug ont the shirt piece from under a heap of earth lying inside his house."}}, {"text": "Article 170", "label": "PROVISION", "start_char": 59112, "end_char": 59123, "source": "regex", "metadata": {"statute": null}}, {"text": "article 112", "label": "PROVISION", "start_char": 59195, "end_char": 59206, "source": "regex", "metadata": {"statute": null}}, {"text": "articles 112 and 170", "label": "PROVISION", "start_char": 59335, "end_char": 59355, "source": "regex", "metadata": {"statute": null}}, {"text": "article 169", "label": "PROVISION", "start_char": 59611, "end_char": 59622, "source": "regex", "metadata": {"statute": null}}, {"text": "January 17, 1974", "label": "DATE", "start_char": 59657, "end_char": 59673, "source": "ner", "metadata": {"in_sentence": "10, an axe handle, article 169, was recovered at his instance on January 17, 1974."}}, {"text": "Panch Mohd. Yusuf Bade Khan", "label": "WITNESS", "start_char": 59726, "end_char": 59753, "source": "ner", "metadata": {"in_sentence": "86-A, and the evidence of the Panch Mohd."}}, {"text": "Pardhi Wada", "label": "GPE", "start_char": 59836, "end_char": 59847, "source": "ner", "metadata": {"in_sentence": "Yusuf Bade Khan (P.W. 10) show that the axe handle was recovered from below a thornv fence in the Pardhi Wada locality."}}, {"text": "January 8, 1974", "label": "DATE", "start_char": 60278, "end_char": 60293, "source": "ner", "metadata": {"in_sentence": "On January 8, 1974 when accused No."}}, {"text": "articles 150 to 152", "label": "PROVISION", "start_char": 60360, "end_char": 60379, "source": "regex", "metadata": {"statute": null}}, {"text": "Salunke", "label": "WITNESS", "start_char": 60843, "end_char": 60850, "source": "ner", "metadata": {"in_sentence": "10 admitted in his examination that the shirt and the dhoti were blood-stained but he offered an unconvincing explanation that a child of his had bled from the nose,\n\nThe evidence of Dr. Salunke (P.W. 48) who examined accused No."}}, {"text": "article 167", "label": "PROVISION", "start_char": 61738, "end_char": 61749, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohd. Yusuf Bade Khan", "label": "WITNESS", "start_char": 61868, "end_char": 61889, "source": "ner", "metadata": {"in_sentence": "84-A, and the evidence of the Panch Mohd."}}, {"text": "Taramati", "label": "WITNESS", "start_char": 62180, "end_char": 62188, "source": "ner", "metadata": {"in_sentence": "Taramati, according to Umaji's evidence, was assaulted with an axe by accused No."}}, {"text": "articles 142 and 143", "label": "PROVISION", "start_char": 62280, "end_char": 62300, "source": "regex", "metadata": {"statute": null}}, {"text": "Dagdu", "label": "WITNESS", "start_char": 62918, "end_char": 62923, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Bhanudas", "label": "WITNESS", "start_char": 62934, "end_char": 62942, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Sitaram", "label": "WITNESS", "start_char": 62954, "end_char": 62961, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Narayan", "label": "WITNESS", "start_char": 62973, "end_char": 62980, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Baliram", "label": "WITNESS", "start_char": 62992, "end_char": 62999, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Santram", "label": "WITNESS", "start_char": 63014, "end_char": 63021, "source": "ner", "metadata": {"in_sentence": "Dagdu (P.W. 5), Bhanudas (P.W. 14), Sitaram (P.W. 16), Narayan IP.W. 17), Baliram (P.W. 18) and Santram (P.W. 24) have deposed about the same either in regard to all of these accused or some of them."}}, {"text": "Sant Ram", "label": "WITNESS", "start_char": 63248, "end_char": 63256, "source": "ner", "metadata": {"in_sentence": "Their evidence has been examined with great care by the learned Sessions Judge and_ we agree with his assessment that except for Sant Ram, the other witnesses can be relied upon for affording corroboration to Umaji's evidence."}}, {"text": "article 168", "label": "PROVISION", "start_char": 65039, "end_char": 65050, "source": "regex", "metadata": {"statute": null}}, {"text": "Panch Mohd", "label": "WITNESS", "start_char": 65170, "end_char": 65180, "source": "ner", "metadata": {"in_sentence": "85-A which is proved by the Panch Mohd."}}, {"text": "Yusuf Bade Khan", "label": "WITNESS", "start_char": 65183, "end_char": 65198, "source": "ner", "metadata": {"in_sentence": "Yusuf Bade Khan, P.W. 10."}}, {"text": "January 7, 197 4", "label": "DATE", "start_char": 65626, "end_char": 65642, "source": "ner", "metadata": {"in_sentence": "12 was\n\narrested on January 11, 1974 his house was searched on January 7, 197 4 in connection with the murders of Haribai and her daughters wh'ch had taken place on January 4, 1974."}}, {"text": "January 6, 1974", "label": "DATE", "start_char": 65803, "end_char": 65818, "source": "ner", "metadata": {"in_sentence": "On January 6, 1974 accused No."}}, {"text": "Mala", "label": "OTHER_PERSON", "start_char": 66089, "end_char": 66093, "source": "ner", "metadata": {"in_sentence": "The evidence of the Senior Dog Master, Ramchandra ( P. W. 5 2) , shows that a female dog called Mala sniffed her suspicion at accused No."}}, {"text": "Mohd. Yusuf", "label": "WITNESS", "start_char": 66597, "end_char": 66608, "source": "ner", "metadata": {"in_sentence": "There is also a serious discrepancy in the evidence of the two Panchas, Mohd."}}, {"text": "Sheikh Imam", "label": "WITNESS", "start_char": 66623, "end_char": 66634, "source": "ner", "metadata": {"in_sentence": "Yusuf, P.W. 10, and Sheikh Imam, P.W. 11, regarding the discovery."}}, {"text": "Panch Sheikh Imam", "label": "JUDGE", "start_char": 66990, "end_char": 67007, "source": "ner", "metadata": {"in_sentence": "Coupled with the circumstance which emerges from the evidence of Panch Sheikh Imam that there is no door to the room from which the axe-handle was produced, the evidence in regard to the recovery of the axe-handle becomes manifestly suspect."}}, {"text": "Dhoti", "label": "OTHER_PERSON", "start_char": 67368, "end_char": 67373, "source": "ner", "metadata": {"in_sentence": "The seizure of a blood-stained Dhoti from the person of accused No."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 68384, "end_char": 68390, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 68401, "end_char": 68406, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 68944, "end_char": 68950, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 68958, "end_char": 68968, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Santa Singh", "label": "OTHER_PERSON", "start_char": 69087, "end_char": 69098, "source": "ner", "metadata": {"in_sentence": "In Santa Singh('), the Sessions Judge, after pronouncing the judgment convicting the appellant for a double murder, did not give him opportunity to be heard on the question of sentence."}}, {"text": "l3hagwati", "label": "JUDGE", "start_char": 69490, "end_char": 69499, "source": "ner", "metadata": {"in_sentence": "In appeal, it was held by this Court (l3hagwati and Fazal Ali, JJ) that the provis•ions of s. 235 of the Code of Criminal Procedure, 1973, which are clear and explicit, require that the Court must in the first instance deliver a judgment or acquitting the accused and if the accused be convicted, he must be given an opportunity to be heard in regard to the sentence."}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 69504, "end_char": 69513, "source": "ner", "metadata": {"in_sentence": "In appeal, it was held by this Court (l3hagwati and Fazal Ali, JJ) that the provis•ions of s. 235 of the Code of Criminal Procedure, 1973, which are clear and explicit, require that the Court must in the first instance deliver a judgment or acquitting the accused and if the accused be convicted, he must be given an opportunity to be heard in regard to the sentence."}}, {"text": "s. 235", "label": "PROVISION", "start_char": 69543, "end_char": 69549, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 69557, "end_char": 69589, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 235", "label": "PROVISION", "start_char": 69852, "end_char": 69858, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "Section 235", "label": "PROVISION", "start_char": 70123, "end_char": 70134, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "Criminal Procedure Code, 1973", "label": "STATUTE", "start_char": 70142, "end_char": 70171, "source": "regex", "metadata": {}}, {"text": "Section 360", "label": "PROVISION", "start_char": 70402, "end_char": 70413, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code, 1973", "statute": "the Criminal Procedure Code, 1973"}}, {"text": "s. 360", "label": "PROVISION", "start_char": 70811, "end_char": 70817, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code, 1973", "statute": "the Criminal Procedure Code, 1973"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 71488, "end_char": 71494, "source": "regex", "metadata": {"statute": null}}, {"text": "S.C.C.190", "label": "RESPONDENT", "start_char": 71566, "end_char": 71575, "source": "ner", "metadata": {"in_sentence": "(I) [l976] 4 S.C.C.190."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 72972, "end_char": 72980, "source": "ner", "metadata": {"in_sentence": "Bhagwati J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings."}}, {"text": "s. 235", "label": "PROVISION", "start_char": 73575, "end_char": 73581, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 235", "label": "PROVISION", "start_char": 73785, "end_char": 73791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 235", "label": "PROVISION", "start_char": 74413, "end_char": 74419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 74886, "end_char": 74892, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 367", "label": "PROVISION", "start_char": 74980, "end_char": 74986, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 74998, "end_char": 75030, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 354(3)", "label": "PROVISION", "start_char": 75446, "end_char": 75460, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 354(3)", "label": "PROVISION", "start_char": 75878, "end_char": 75887, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 77644, "end_char": 77650, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 77661, "end_char": 77666, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 77674, "end_char": 77684, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302", "label": "PROVISION", "start_char": 77866, "end_char": 77872, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 77883, "end_char": 77888, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 77896, "end_char": 77906, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "January 4. r974", "label": "DATE", "start_char": 78748, "end_char": 78763, "source": "ner", "metadata": {"in_sentence": "The spate of those atrocities coin-, menced with ihe murder of Gayabai on November 14, 1972 and ended with the murders of Haribai and ber two daughters on January 4."}}, {"text": "S. P. Waghrnare", "label": "WITNESS", "start_char": 78921, "end_char": 78936, "source": "ner", "metadata": {"in_sentence": "S. P. Waghrnare shows that apart riom the rnobile police, fue<lpost patrols were deputed to 'keep a close watch on the activities of , an\n\nand sundry in the area which was chosen by the murderers for -their criminal activities."}}, {"text": "l!aiibai", "label": "OTHER_PERSON", "start_char": 79151, "end_char": 79159, "source": "ner", "metadata": {"in_sentence": "l!aiibai and her 'daughters Were murdered 'under\n\nthe yery nose of 'the 'PolicerneQ.  Quite 'a .,"}}, {"text": "Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:", "label": "OTHER_PERSON", "start_char": 79637, "end_char": 79743, "source": "ner", "metadata": {"in_sentence": "All this hardly -does any credit to 'the efficiency a:nd watchfulness of a system which in Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:indrabhai Pawar, accnsed No: 4, to make a c6nfessionhl statement on Deeember 28, 1973 'and the wheel\" of a baflled machine started mo, ing fast. - ·"}}, {"text": "indrabhai Pawar", "label": "LAWYER", "start_char": 79743, "end_char": 79758, "source": "ner", "metadata": {"in_sentence": "All this hardly -does any credit to 'the efficiency a:nd watchfulness of a system which in Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:indrabhai Pawar, accnsed No: 4, to make a c6nfessionhl statement on Deeember 28, 1973 'and the wheel\" of a baflled machine started mo, ing fast. - ·"}}, {"text": "Deeember 28, 1973", "label": "DATE", "start_char": 79811, "end_char": 79828, "source": "ner", "metadata": {"in_sentence": "All this hardly -does any credit to 'the efficiency a:nd watchfulness of a system which in Maharash•ra has won rnai:iy encorninl11S. Eventually Providence; and perhaps t!ie :police, persuaded 'Sam:indrabhai Pawar, accnsed No: 4, to make a c6nfessionhl statement on Deeember 28, 1973 'and the wheel\" of a baflled machine started mo, ing fast. - ·"}}, {"text": "Rainch'andra", "label": "WITNESS", "start_char": 81044, "end_char": 81056, "source": "ner", "metadata": {"in_sentence": "A witness 'called Rainch'andra 'also adrmtted that while under interrol!a•\n\ntion the 'police brtlld-ollt his niv-roll."}}, {"text": "GosWAMi", "label": "JUDGE", "start_char": 81950, "end_char": 81957, "source": "ner", "metadata": {"in_sentence": "GosWAMi, J.-I am in agreement with the judgment proposed by my brother Cbaruirachud which is a piece of conspicuous clarity after marshalling and compressing a mass of evidence.", "canonical_name": "GOSWAMI"}}, {"text": "Cbaruirachud", "label": "OTHER_PERSON", "start_char": 82021, "end_char": 82033, "source": "ner", "metadata": {"in_sentence": "GosWAMi, J.-I am in agreement with the judgment proposed by my brother Cbaruirachud which is a piece of conspicuous clarity after marshalling and compressing a mass of evidence."}}, {"text": "section 235", "label": "PROVISION", "start_char": 82441, "end_char": 82452, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 82457, "end_char": 82489, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 235(2)", "label": "PROVISION", "start_char": 82542, "end_char": 82556, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1973", "statute": "Code of Criminal Procedure, 1973"}}, {"text": "section 235", "label": "PROVISION", "start_char": 82920, "end_char": 82931, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1973", "statute": "Code of Criminal Procedure, 1973"}}, {"text": "Balabhau Lad", "label": "WITNESS", "start_char": 84599, "end_char": 84611, "source": "ner", "metadata": {"in_sentence": "To mention one item only, even Balabhau Lad, a close neighbouring relative of the deceased Haribai and master of Umaji, the star witness against accused 9 to 12, has not been produced in this case to corroborate the sudden and instant disappearance of Umaji for four days from the very scene of murder, being his master's field, by leaving his horse tethered therein."}}, {"text": "4th of January, 1974", "label": "DATE", "start_char": 85531, "end_char": 85551, "source": "ner", "metadata": {"in_sentence": "It is distressing that when three murders took place ou the 4th of January, 1974, and all the dead bodies were lying at the same field, only one _dead body was located and the other two were not traced until next morning."}}, {"text": "section 164", "label": "PROVISION", "start_char": 86775, "end_char": 86786, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 86788, "end_char": 86814, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 164", "label": "PROVISION", "start_char": 87152, "end_char": 87163, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_664_669_EN", "year": 1977, "text": "N. S. MEHTA & ORS.\n\nUNION OF INDIA & ORS.\n\nApril 20, 1977\n\n[M. H. BEG,.C.J., A. C. '1VPTA AND P. S. KAILASA'.1, JJ.]\n\nSeniority-1-Yliether the decision in Union of India v. M. R\"~'i Vermcr &: Ors, etc. (1972) 2 S.C.R. 992 contained an invariable nzechanicc..l rule of seniority applicable to all classes of services so t!tat nothing beyond length o/ sen11ce\n\nin a particular t::rade could determine seniority-Central Secretariat Sen1ice\n\nRules, 1962, Rule 17-Whether placing those who have passed tht type1vrili11g test lvitlzin t1vo years of the fixed date in separate category for the purpose of pro1notion violates Articles 14 and 16 of the Constitution of India.\n\nUnder the scheme which culminated in the promulgation of the Central Secretariat Clerical Service Rules, 1962 (effective from 1-5-1954), it was pro vided that those officers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Commission within a period of two years from\n\n1-5-1956.\n\nThe names of the petitioners who had not passed the typewriting test did not figure in the gradation list dated 7-2-1972 prepa1ed for making pro~ motions to the next grade of Assistants. The petitioners. challenged the orders on several grounds, namely, (i) The principle of seniority contained in the\n\nIVIinistry of Home Affairs' O.M. dated 22-6-1949 as interpreted by this 0Jurt in 1972 (2) SCR 992 had not been applied to them; (ii) The impugned list was formulated in an arbitrary fashion; (iii) Their seniority must date back to their dates of promotion as Upper Division Clerks; and (iv) Rule 17 of Central Secretariat Clerical Service Rules, 1962 being inconsistent with C~.M. dated 22-6-1949 and 22-2-1959 violates Articles 14 and 16 of the Constitution.\n\nThe respondent raised three objections to the petitioners' case in their returns, namely, (i) There was a reasonable criterion for the difference made betreen\n\nthe cases of the petitioners and those placed on the itnpugned list of 7-2-1972 who are above the petitioners because they have passed the prescribed ype\n\nwriting test so that Articles 14 and 16 of the Constitution could not be saijd to have been violated in this case whatevcrelse may have been infringed; (ii) The petitioners not having assailed the order of confirmation of the scheme: on 1-5-1958 prescribing a reasonable ground for distinction between the clasi1 of cases in which typewriting tests have been passed to which the contes, ting respondents in the impugned list below and the class of the petitioners which had not passed the test. the petitionern could not challenge the impugned scheme of 1972 at all; (iii) A number of persons have been promoted and put above the petitioners since 1962 acting under the scheme providing the typewriting test so that there was inonfinate delay in filing the petition. 11nder Art. 32 of the Constitution.\n\nDismissing the petition, the Court,\n\nHELD: (1) The alleged violation of the rule of seniority according to; length of service was not decisive even according to the Ministry of Home\n\nAffairs' o.M. dated 22~6-1949. This memorandum shov1s that it \\Vas Dnly directory laying down a general rule of seniority which was presumably subject to other exceptional factors which could also be taken into account.\n\n[666 A I\n\nP. C. Sethi & Ors. v. Union of India & Ors. [1975) 3 S.C.R. 21, follo\\¥ed.\n\n(2) A rule prescribing a typing test cannot be said to be unconnected with the duties of clerks who desire a promotion to the next grade.\n\nA discrirrtination made on such a ground could not violate ArticJes 14 and 16 of the <:on stitution \\Vhateverelse it may be said to, violate.\n\n[668 E]\n\n(3) A violation of statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in \\Vhich a rule made is ultra vires for unreasonablens or\n\non any other ground and should not be deemed to exist. In such a: case, if the rule is enforced it may on the facts of the particular case amount to a violation of Articles 14 and 16 of the Constitution also.\n\nThe petitioners' case is not such a case at all. [668 E-F]\n\n(4) The principles laid down by this Court in Joginder Nath and Ors. v.\n\nUnion of India & Ors. [1976] (2) S.C.R. 553 and in Amrit Lal Berry v. Collector of Central Excise [1975] 2 S.C.R. 960, apply to the petitioners' case regarding\n\n~--~~~ B\n\nORIGINAL JURISDICTION : Writ PetitiQ\\n No. 156 of 1972.\n\n(Under Art. 32 of the Constitution of India).\n\n{;. S. Javali, A. K. Srivastava and B. P. Singh, for the petitioner.\n\nG. L. Sanghi, S. P. Mital and Girish Chandra, for respondents Nos. 1 and 3.\n\nB. Datta, for respondent No. 194.\n\nThe Judgment of the Court was delivered by\n\nBEG, C.J.-This is a petition under Article 32 of the Constitution praying) for a writ of certiorari, or a writ of Mandamus or, any other D appropriate writ, order or direction for the enfom .• \"111ent of the fundamental rights of the petitioners under Article 14 and 16 of the Constitution.\n\nThe petitioners have been working as Upper Division Clerks and pray for the quashing of a list, issued with Office Memorandum dated. 7.2.1972, for making promotions to the next grade of Assistants on which the names of respondents 4 to 203 appear but not those of the petitioners.\n\nThey claim that the principles of seniority, con- E tained in the Ministry of Home Affairs' O.M. dated 22.6.1949, as interpreted by this Court in UNION OF INDIA v. M. RAVI VERMA & ORS. ETC.,(') had not been applied to them.\n\nThe contention seems to be that the last mentioned decision contained an invariable mechanical rule of seniority applicable to all classes of services so that nothing beyond length of service in a particular grade could determine seniority.\n\nIt was alleged that the impugned list was formulated in an F arbitrary fashion.\n\nHence, the petitioners complain of violation of Articles 14 and 16 of the Constitution.\n\nIn paragraph 6 of the petition it was stated that even persons appointed nine or ten years after the petitioners had been promoted as long ago as 1969 to the grade of Assistants to which the petitioners put forward their own claims.\n\nIt was also stated that a large number G of persons have superseded the petitioners but a few names only have been mentioned from amongst them.\n\nThe whole case of the petitioners thus rests on the submission that nothing beyond length of service must determine the place on the list for promotion to the grade of Assistants.\n\nThe petitioners allege a common cause of action inasmuch as the impugned list of 17.2.1972 affects all of them.\n\nThey claim that all of them should have been governed by the principles contained in ___ ,, ____ . __\n\n(l) [t 9n]2 SCR 992.\n\nA the Memorandum of 22.6.1949.\n\nThis Memorandum (Annexure 'C' , to the petition) shows that it was only directory laying down a general rule of seniority which was presumably subject to other exceptional factors which could also be taken into account.\n\nHence, an alleged violation of the rule of seniority according to length of service was not decisive even according to this Memorandum.\n\nThe counter-affidavit filed by Shri P. L. Gupta, Deputy Secretary to the Government of India, gives the long history of a scheme which culminated in the promulgation of the statutory rules framed u.lldec Article 309 of the Constitution of India called the Central Secretariat Clerical Service Rules, 1962 by the President of India. It shows that the scheme of 1949 was given a final shape by the Cabinet in 1954 and became effective from 1.5.1954.\n\nUnder the scheme, as finally framed, it was provided that those officers who were otherwise eligible for confirmation in the services at the initial constitution, should also paiis a typewriting test to be held by the Union Public Service Comruission within a period of two years from 1-5-1956. It appears that the confirmation of the initial constitution of the service was delayed until 1958.\n\nSome of the rather ambitious assertions of the petiiloners suggest that their case is that they had been appointed to an Upper Division grade on a regular basis so that their seniority must date back to their date of promotion.\n\nThis suggestion was controverted by the respondents who alleged that the petitioners had been only allowed to continue provisionally on a temporary basis in the grade of Upper Division of Clerks.\n\nIt was stated, in the counter-affidavit, that as typing test had to be passed within two years of 1st of May 1958, those who did not come within this class came in the class of the petitioners who were serving on an ad hoc or temporary basis.\n\nHence, it was submitted that those who had passed the typewriting test within two years of the fixed date belong to another category altqgether. The respondents, therefore, submit that there has been no contravention of Articles 14 and 15.\n\nSerious grounds of objection to the petitioner's case are three fold : firstly, that there was a reasonable criterion for the difference made between the cases of the petitioners and those placed on the impugned list of 7.2.1972 who are above the petitioners because they have passed the prescribed typing test so that Articles 14 and 16 of the Constitution could not be said to have been violated in this case whatever else may have been infringed; secondly, that the petitioners, not having assailed the order of confirmation of the scheme on 1.5.1958, prescribing a reasonable ground for distinction between the class of cases in which typing test had been passed, to which the contesting respondents in the impugned list belong and the class of the petitioners, which had not passed this test, the petitioners' could not challenge the impugned scheme of 1972 at all; thirdly, a member of persons had been promoted and put above the petitioners since 1962, acting under the scheme providing the typing test, so that there was inordinate delay in filing the petition under Article 32 of the Constitution on M.4.1972.\n\n., I\n\nN. S. M1'H'lA V. LiNION (Beg, C./.) 667\n\nIn their Writ Petition the petitioners have no doubt challenged the validity of rule 17 of the Central Secretariat Clerical Service rules for inconsistency with the Memoranda of 22.6.1949 and 22.12.1959 and alleged that this also constitntes a violation of Articles 14 and 16 of the Constitution.\n\nThis rule was among rules notified on 28-9-1962.\n\nIt lays down as follows :-\n\n\"17. Seniority(!) The relative seniority of members of B the Service appointed to any Grade before the appointed day shall be regulated by their relative seniority as determined before that day.\n\nProvided that if the seniority of any such officer had not been specifically determined before the appointed day it shall be as uetermmed by the Department of Personnel in the Cabinet Secretariat.\n\nMHA No. 612167-CS-II dated 20.12.67.\n\nProvided further that the seniorty of an officer referred to in the proviso to clause (a) of rule 2 shall be determined by the Department of Personnel in the Cabinet Secretariat by taking into account the continuous length of regular service rendered before the appointment day by such officer in the grade of lower Division or in any higher grade_ in the offices of the Central Government.\n\n(2) All permanent officers included in the initial constitntion of a Grade under rule 7 shall rank senior to all persons substantively appointed to that Grade with effect from a date after the appointed day, and all temporary officers included in the initial constitution of a Grade under that rule shall rank senior to all temporary officers appointed to that Grade after the appointed day.\n\n(3) Except as provided in sub-rules ( 4) and (5), the seniority of persons appointed to the two grades of the service after the appointed day shall be determined in the following manner, namely :\n\nI. UPPER DIVISION GRADE\n\n(i) Permanent Of]icers.-Thc seniority inter se of G officers substantively appointed to the Grade after the appointed day shall be regulated by the order in which they are so appointed to the Grade.\n\n(ii) Temvorary Offlcers.-The seniority inter se of temporary officers appointed to the Grade after the appointed day shall be regulated as follows, namely : H\n\n(a) Persons included in the Select List for a Grade shall nmk: senior en bloc to those not included in the Select list.\n\nA '\n\n(b) The seniority inter se o( person included in the Select List shall be in the order in which their names are included in the Select List.\n\n(c) The seniority in'.er se of persons not included in the Select List shall be regulated by the order in which they are approved for long term appointment to the Grade.\n\nRule 7 provides as follows :\n\n\"7. Initial Constitution of each cadre.-The permanent and temporary officers of each Grade in each cadre on the appointed day shall be as determined by the Dept!. of Personnel in the Cabinet Secretariat.\"\n\nWe find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service.\n\nApparently, that allotment also determined the order of seniority.\n\nIn other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up.\n\nThis explains the petitioners' challenge to the validity of Rule 17.\n\nWe are unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade.\n\nWe do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a vfolation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution.\n\nThere may also be cases in which a rule made is ultra vires for unreasonableness or on any other ground and should not be deemed to exist.\n\nIn such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also.\n\nThe case before us does not appear to be such a case at all.\n\nIt seems to be covered by what this Court said in P. C. Sethi & Ors. v. Union of India & Ors., (') with regard to the\n\nOffice Memorandum of 22.6.1949 (at pp. 207-208) :\n\n\" .... tha Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode Qf constitution and future maintenance of the service of Assistants.\n\nThere is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assis-\n\n(!) [1975] 3 SCR 20.\n\n!ants proprly observed keeping in view the question of quality and e_fficieucy as well as at the same where regard being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the Government has violated the. provisions of articles 14 or 16 -0f the Constitution.\n\nThe classification under the instruction for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure. security of temporary employees assistant with efficieHcy .in the Service.\n\nThere is no discrimination.whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government.\"\n\nThis Court has also explained in Joginder Nath & Ors. v. Union of India & Ors.(') and Amrit Lal Berry v. Collector of Central Excise, New Delhi & Ors.( 2 ) the principles on which this Coure will interfere under Article 32 of the Constitution for an alleged violation.of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of otl1ers, may give retional grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all. We think that the principles laid down in. the cases mentioned above apply here.\n\nConsequently, we dismiss this Writ Petition, but, in the circumstances of the case, the parties will bear their own costs.\n\nS.R.\n\nPetition dismissed.\n\n{1)\n\n\nA ,", "total_entities": 65, "entities": [{"text": "N. S. MEHTA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "N. S. MEHTA & ORS", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "April 20, 1977", "label": "DATE", "start_char": 43, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "April 20, 1977\n\n[M. H. BEG,."}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 60, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "(1972) 2 S.C.R. 992", "label": "CASE_CITATION", "start_char": 202, "end_char": 221, "source": "regex", "metadata": {}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 618, "end_char": 636, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 644, "end_char": 665, "source": "regex", "metadata": {}}, {"text": "scheme which culminated in the promulgation of the Central Secretariat Clerical Service Rules, 1962", "label": "STATUTE", "start_char": 678, "end_char": 777, "source": "regex", "metadata": {}}, {"text": "Union Public Service Commission", "label": "ORG", "start_char": 985, "end_char": 1016, "source": "ner", "metadata": {"in_sentence": "Under the scheme which culminated in the promulgation of the Central Secretariat Clerical Service Rules, 1962 (effective from 1-5-1954), it was pro vided that those officers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Commission within a period of two years from\n\n1-5-1956."}}, {"text": "1-5-1956", "label": "DATE", "start_char": 1052, "end_char": 1060, "source": "ner", "metadata": {"in_sentence": "Under the scheme which culminated in the promulgation of the Central Secretariat Clerical Service Rules, 1962 (effective from 1-5-1954), it was pro vided that those officers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Commission within a period of two years from\n\n1-5-1956."}}, {"text": "7-2-1972", "label": "DATE", "start_char": 1175, "end_char": 1183, "source": "ner", "metadata": {"in_sentence": "The names of the petitioners who had not passed the typewriting test did not figure in the gradation list dated 7-2-1972 prepa1ed for making pro~ motions to the next grade of Assistants."}}, {"text": "22-6-1949", "label": "DATE", "start_char": 1405, "end_char": 1414, "source": "ner", "metadata": {"in_sentence": "challenged the orders on several grounds, namely, (i) The principle of seniority contained in the\n\nIVIinistry of Home Affairs' O.M. dated 22-6-1949 as interpreted by this 0Jurt in 1972 (2) SCR 992 had not been applied to them; (ii) The impugned list was formulated in an arbitrary fashion; (iii) Their seniority must date back to their dates of promotion as Upper Division Clerks; and (iv) Rule 17 of Central Secretariat Clerical Service Rules, 1962 being inconsistent with C~.M. dated 22-6-1949 and 22-2-1959 violates Articles 14 and 16 of the Constitution."}}, {"text": "Central Secretariat Clerical Service Rules, 1962", "label": "STATUTE", "start_char": 1668, "end_char": 1716, "source": "regex", "metadata": {}}, {"text": "22-2-1959", "label": "DATE", "start_char": 1767, "end_char": 1776, "source": "ner", "metadata": {"in_sentence": "challenged the orders on several grounds, namely, (i) The principle of seniority contained in the\n\nIVIinistry of Home Affairs' O.M. dated 22-6-1949 as interpreted by this 0Jurt in 1972 (2) SCR 992 had not been applied to them; (ii) The impugned list was formulated in an arbitrary fashion; (iii) Their seniority must date back to their dates of promotion as Upper Division Clerks; and (iv) Rule 17 of Central Secretariat Clerical Service Rules, 1962 being inconsistent with C~.M. dated 22-6-1949 and 22-2-1959 violates Articles 14 and 16 of the Constitution."}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 1786, "end_char": 1804, "source": "regex", "metadata": {"linked_statute_text": "Central Secretariat Clerical Service Rules, 1962", "statute": "Central Secretariat Clerical Service Rules, 1962"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 2163, "end_char": 2181, "source": "regex", "metadata": {"linked_statute_text": "Central Secretariat Clerical Service Rules, 1962", "statute": "Central Secretariat Clerical Service Rules, 1962"}}, {"text": "1-5-1958", "label": "DATE", "start_char": 2379, "end_char": 2387, "source": "ner", "metadata": {"in_sentence": "The respondent raised three objections to the petitioners' case in their returns, namely, (i) There was a reasonable criterion for the difference made betreen\n\nthe cases of the petitioners and those placed on the itnpugned list of 7-2-1972 who are above the petitioners because they have passed the prescribed ype\n\nwriting test so that Articles 14 and 16 of the Constitution could not be saijd to have been violated in this case whatevcrelse may have been infringed; (ii) The petitioners not having assailed the order of confirmation of the scheme: on 1-5-1958 prescribing a reasonable ground for distinction between the clasi1 of cases in which typewriting tests have been passed to which the contes, ting respondents in the impugned list below and the class of the petitioners which had not passed the test."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2916, "end_char": 2923, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ministry of Home\n\nAffairs", "label": "ORG", "start_char": 3111, "end_char": 3136, "source": "ner", "metadata": {"in_sentence": "Dismissing the petition, the Court,\n\nHELD: (1) The alleged violation of the rule of seniority according to; length of service was not decisive even according to the Ministry of Home\n\nAffairs' o.M. dated 22~6-1949."}}, {"text": "22~6-1949", "label": "DATE", "start_char": 3149, "end_char": 3158, "source": "ner", "metadata": {"in_sentence": "Dismissing the petition, the Court,\n\nHELD: (1) The alleged violation of the rule of seniority according to; length of service was not decisive even according to the Ministry of Home\n\nAffairs' o.M. dated 22~6-1949."}}, {"text": "[1975) 3 S.C.R. 21", "label": "CASE_CITATION", "start_char": 3404, "end_char": 3422, "source": "regex", "metadata": {}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 3831, "end_char": 3849, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 4119, "end_char": 4137, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Joginder Nath", "label": "OTHER_PERSON", "start_char": 4271, "end_char": 4284, "source": "ner", "metadata": {"in_sentence": "668 E-F]\n\n(4) The principles laid down by this Court in Joginder Nath and Ors."}}, {"text": "[1975] 2 S.C.R. 960", "label": "CASE_CITATION", "start_char": 4396, "end_char": 4415, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4533, "end_char": 4540, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4548, "end_char": 4569, "source": "regex", "metadata": {}}, {"text": "S. Javali", "label": "LAWYER", "start_char": 4577, "end_char": 4586, "source": "ner", "metadata": {"in_sentence": "S. Javali, A. K. Srivastava and B. P. Singh, for the petitioner."}}, {"text": "A. K. Srivastava", "label": "LAWYER", "start_char": 4588, "end_char": 4604, "source": "ner", "metadata": {"in_sentence": "S. Javali, A. K. Srivastava and B. P. Singh, for the petitioner."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 4609, "end_char": 4620, "source": "ner", "metadata": {"in_sentence": "S. Javali, A. K. Srivastava and B. P. Singh, for the petitioner."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 4643, "end_char": 4655, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, S. P. Mital and Girish Chandra, for respondents Nos."}}, {"text": "S. P. Mital", "label": "LAWYER", "start_char": 4657, "end_char": 4668, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, S. P. Mital and Girish Chandra, for respondents Nos."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 4673, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, S. P. Mital and Girish Chandra, for respondents Nos."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 4720, "end_char": 4728, "source": "ner", "metadata": {"in_sentence": "B. Datta, for respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 4799, "end_char": 4802, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, C.J.-This is a petition under Article 32 of the Constitution praying) for a writ of certiorari, or a writ of Mandamus or, any other D appropriate writ, order or direction for the enfom .• \"111ent of the fundamental rights of the petitioners under Article 14 and 16 of the Constitution."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 4834, "end_char": 4844, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 14 and 16", "label": "PROVISION", "start_char": 5051, "end_char": 5068, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "7.2.1972", "label": "DATE", "start_char": 5224, "end_char": 5232, "source": "ner", "metadata": {"in_sentence": "7.2.1972, for making promotions to the next grade of Assistants on which the names of respondents 4 to 203 appear but not those of the petitioners."}}, {"text": "22.6.1949", "label": "DATE", "start_char": 5476, "end_char": 5485, "source": "ner", "metadata": {"in_sentence": "They claim that the principles of seniority, con- E tained in the Ministry of Home Affairs' O.M. dated 22.6.1949, as interpreted by this Court in UNION OF INDIA v. M. RAVI VERMA & ORS."}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 5969, "end_char": 5987, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "17.2.1972", "label": "DATE", "start_char": 6651, "end_char": 6660, "source": "ner", "metadata": {"in_sentence": "The petitioners allege a common cause of action inasmuch as the impugned list of 17.2.1972 affects all of them."}}, {"text": "P. L. Gupta", "label": "OTHER_PERSON", "start_char": 7234, "end_char": 7245, "source": "ner", "metadata": {"in_sentence": "The counter-affidavit filed by Shri P. L. Gupta, Deputy Secretary to the Government of India, gives the long history of a scheme which culminated in the promulgation of the statutory rules framed u.lldec Article 309 of the Constitution of India called the Central Secretariat Clerical Service Rules, 1962 by the President of India."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 7402, "end_char": 7413, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India called the Central Secretariat Clerical Service Rules, 1962", "label": "STATUTE", "start_char": 7421, "end_char": 7502, "source": "regex", "metadata": {}}, {"text": "1.5.1954", "label": "DATE", "start_char": 7636, "end_char": 7644, "source": "ner", "metadata": {"in_sentence": "It shows that the scheme of 1949 was given a final shape by the Cabinet in 1954 and became effective from 1.5.1954."}}, {"text": "Union Public Service Comruission", "label": "ORG", "start_char": 7865, "end_char": 7897, "source": "ner", "metadata": {"in_sentence": "Under the scheme, as finally framed, it was provided that those officers who were otherwise eligible for confirmation in the services at the initial constitution, should also paiis a typewriting test to be held by the Union Public Service Comruission within a period of two years from 1-5-1956."}}, {"text": "1st of May 1958", "label": "DATE", "start_char": 8567, "end_char": 8582, "source": "ner", "metadata": {"in_sentence": "It was stated, in the counter-affidavit, that as typing test had to be passed within two years of 1st of May 1958, those who did not come within this class came in the class of the petitioners who were serving on an ad hoc or temporary basis."}}, {"text": "Articles 14 and 15", "label": "PROVISION", "start_char": 8933, "end_char": 8951, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 9273, "end_char": 9291, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "1.5.1958", "label": "DATE", "start_char": 9499, "end_char": 9507, "source": "ner", "metadata": {"in_sentence": "Serious grounds of objection to the petitioner's case are three fold : firstly, that there was a reasonable criterion for the difference made between the cases of the petitioners and those placed on the impugned list of 7.2.1972 who are above the petitioners because they have passed the prescribed typing test so that Articles 14 and 16 of the Constitution could not be said to have been violated in this case whatever else may have been infringed; secondly, that the petitioners, not having assailed the order of confirmation of the scheme on 1.5.1958, prescribing a reasonable ground for distinction between the class of cases in which typing test had been passed, to which the contesting respondents in the impugned list belong and the class of the petitioners, which had not passed this test, the petitioners' could not challenge the impugned scheme of 1972 at all; thirdly, a member of persons had been promoted and put above the petitioners since 1962, acting under the scheme providing the typing test, so that there was inordinate delay in filing the petition under Article 32 of the Constitution on M.4.1972."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 10029, "end_char": 10039, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 10378, "end_char": 10396, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "28-9-1962", "label": "DATE", "start_char": 10457, "end_char": 10466, "source": "ner", "metadata": {"in_sentence": "This rule was among rules notified on 28-9-1962."}}, {"text": "20.12.67", "label": "DATE", "start_char": 10918, "end_char": 10926, "source": "ner", "metadata": {"in_sentence": "612167-CS-II dated 20.12.67."}}, {"text": "Central Government", "label": "ORG", "start_char": 11300, "end_char": 11318, "source": "ner", "metadata": {"in_sentence": "Provided further that the seniorty of an officer referred to in the proviso to clause (a) of rule 2 shall be determined by the Department of Personnel in the Cabinet Secretariat by taking into account the continuous length of regular service rendered before the appointment day by such officer in the grade of lower Division or in any higher grade_ in the offices of the Central Government."}}, {"text": "Government of India", "label": "ORG", "start_char": 13024, "end_char": 13043, "source": "ner", "metadata": {"in_sentence": "We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service."}}, {"text": "12-11-1962", "label": "DATE", "start_char": 13067, "end_char": 13077, "source": "ner", "metadata": {"in_sentence": "We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service."}}, {"text": "Articles 14", "label": "PROVISION", "start_char": 13754, "end_char": 13765, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 13975, "end_char": 13993, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 14267, "end_char": 14285, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1975] 3 SCR 20", "label": "CASE_CITATION", "start_char": 15075, "end_char": 15090, "source": "regex", "metadata": {}}, {"text": "articles 14", "label": "PROVISION", "start_char": 15370, "end_char": 15381, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 16077, "end_char": 16087, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 16136, "end_char": 16154, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 16404, "end_char": 16422, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1977_3_670_677_EN", "year": 1977, "text": "LINKS ADVERTISERS & BUSINESS PROMOTERS\n\nCOMMISSIONER, CORPORATION OF THE CITY OF\n\nBANGALORE\n\nApril 21, 1977\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.J\n\nCity of Bangalore Municipal Corporation Act, 1949-S. 136, third proviso,\n\ncl. (e)-;; Scope. ot-Advrtisement fronting a street put up lVithin railtvay premises Fronting' meaning of.\n\nWords and Phrases-\"fronting\" meaning o/.\n\n. Section 136 of the City of Bangalore Municipal Corporation Act, 1949 provtdes that every person who erects, exhibits etc., over any land or structure any advertisement or \\Vho displays any advertisement to public view in any place, whether public or private, shall pay on every advertisement a tax levied by the Corporation.\n\nClause (e) of the third proviso to the section enacts that no such tax shall be levied on any advertisement which is exhibited within any railay station or upon any wall or other property of a railway, except any portion of the surface of such wall or property fronting any street.\n\nAn advertisement facing a public street was put up by the appellant adjacent to the compound fencing of a railway station but within the railway pr, emise!I:.\n\nThe Municipal authorities levied tax on the advertisement. The apnellant's writ petition challenging the levy was dismissed by a single judge of the High Court and this decision was upheld by a division bench.\n\nOn appeal to this Court it was contended that the expression \"frontlng any street\" occurring in the proviso qualified the railway property and not the advertisement.\n\nDismissing the appeal,\n\nHELD : 1. (a) Since the advertisements were fronting public street and were exposd to public view, were not covered by the exemption contemplated by the proviso and were, therefore exigible to tax. [677 D] ·\n\n(b) The word \"fronting\" qualifies not the wall or property mentioned in the latter part of the proviso but \"advertisement\". The test laid down by the proviso is that the Court has to see if the advertisemnt affixed whether inside the compound of the railway or not fronts the street. If it fronts the street or faces the street, even if it is within the railway premises it will be exigible to tax. [674 D & Fl\n\n(c) The word \"fronting\" has been used in the proviso not in any legal Otl technical sense but it ordinary parlance. It is not a term of art but one that signifies its meaning according to common notions. [675 D]\n\nThe Corporation of Madras v. Messrs The Oriental Mercantile Company Ltd., Madras, [1966] 2 M.L.J. 440 and Ware Urban District Council v. Gaunt & Others. [1960] 3 All E.R. 778, 787 distinguished.\n\n2. The view of the single Judge that since the public street to which the advertisements were facing, ran along the railings with no other obstcle between the advertisement and the public view, it could reasonably be said. that they were fronting public street is correct.\n\nOn the other hand .. the view of the Division Bench that the proviso would only apply to advertisements of such hoardings whose ownership lav with the railway or whih .. elone-ed !O the railway is not borne out. by cl. (e).\n\nTh~ que<; tton of e~1gib1htv to tax ts relata.ble not to the ownership of the hoardmgs but their Situs. [676 G-H]\n\nLINKS ADVERTISEllS \\'. COMMR. (Fazal Ali, J.) 671\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 325/1976.\n\nA I\n\n(From the Judgment and Order dated the 3.12.1975 of the Karnataka H:gh Court in Writ Appeal No. 284/74).\n\nV. S. Desai, Sanjev Aggarwal and R. B. Datar, for the appellant.\n\nS. S. Java/i, Jagannath Shetty and B. P. Singh for resp. No. 1.\n\nS. N. Prasad and Girish Chandra, for the Intervener Union of B\n\nIndia.\n\nNemo for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nFAZAL ALI, J.-Whether hoardings containing advertisements C fixed in the premises of a railway station fronting a public street are exigible to tax under the provisions of s. 136 of the City of Bangalore Municipal Corporation Act, 1949 (Act No. LXIX of 1949)- hereinafter referred to as 'the Act'-is the substantial question of law involved in this appeal by certificate.\n\nThe facts of the case lie within a narrow compass and the point D raised by counsel for the appellant is one of first impression and undoubtedly requires serious consideration.\n\nThe appellant is a firm of advertising commercial goods and other items by putting up hoardings containing advertisements on properties taken on lease or licence from various owners.\n\nThe appellant also has been putting up hoardings on railway lands in the compound of the Bangalore Railway Station.\n\nIn the instant case, we are only concerned with the hoard- E ings containing advertisements put up adjacent to the railway compound fencing but within the railway premises by being placed on girders affixed to the earth.\n\nThe fencing of the railway compound is adjacent to and faces a public street.\n\nIt is also not disputed by the parties that the advertisements are put up at sufficient height so as to be clearly visible to and attract the attention of the members of the general public passing through the public street.\n\nThe appellant has F produced photographs of some of the hoardings which demonstrate these facts.\n\n, The Municipal Corporation of the City of Bangalore being of the opinion that the hoardings containing advertisements put up by the appellant were exigible to tax issued a demand notice dated March 7 1973 calling upon the appellant to pay a sum of Rs. 5871-83 as th~ G\n\nadvertise~nt tax inc!uding arrears.\n\nThe !1ppellant !epresented to the Mun1c1pal authonties that as the hoardmgs contalning advertisements were situate within the railway premises they squarely fell within clause (e) of the third proviso to s. 136l of the Act. The Municipal Corporation did not accept the contention of the appellants and pressed for paying up the tax.\n\nThe appellant then filed a writ petition before the High Court H of Karnataka praying that the order of the Corporation demanding payment of tax be quashed, because the advertisements were clearly\n\nexempt from tax by virtue of the aforeaid proviso. The writ peti- tion was in the first instance heard by a single Judge who by his order dated April 4, 1974 overruled the contention of the appellant and dismissed the petition.\n\nThereupon the appellant filed an appeal under the Letters Patent before a Division Bench which also affirmed the order of the single Judge, though on different grounds.\n\nThe Division Bench later on being approached under Art. 133 of the Constitution granted a certificate of fitness and hence this appeal before us.\n\nThe only point that has been raised before us i.s that the boardings containing advertisements squarely fall within the exemption contained in the third proviso to s. 13 6 of the Act and, therefore, they are not exigible to tax.\n\nThe High Court found that as the advertisements did not belong to the Railway nor for the purpose of the Railway, the proviso in question did not apply and the Single Judge was right in holding that the advertisements were exigible to tax.\n\nThe single Judge had, however, found that as the advertisements were much abme the railings _which faced the public street, the proviso had no application.\n\nBefore examining the view of the High Court, it may be necessary to extract the relevant portions of the tatute which we are called . upon to interpret. The relevant part of s. 136 of the Act runs. tbus :\n\n\"Every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or wh.o displays any advertisement to public ,-iew in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions, as the corporation may, with the\n\n- approval of the Government, by resolution determipe :\n\n~ x x x x \"Provided further that no such tax shall be levied on F any advertisement which is not a sky-sign and whichx x x x ( e) is exhibited within any railway station or upon any wall or other property of a railway except any portion of the surface of such wall or property fronting any street.\n\nExp/a11atio11 1.-The word 'structure' in this section shall include any movable board on wheels used as an advertisement or an advertisement medium.\" (Eniphasis supplied)\n\nSection 136 of the Act which is the charging section clearly shows that the intention of the statute was to tax certain types of advertisements. The pith and substance of the entire sction, therefore, is the taxation of advertisements fixed; erected or exh!b1ted on any land, building. wall, hoarding, structure etc.\n\nThus it is manifest, that s. 136 contemplates tax on advertisements and not tax on premises or\n\n.. '\n\nbuilding'.\n\nThis clear distinction has to be kept in mind in construing the third proviso to s. 136 of the Act which falls for determination in this case, particularly in view of some of the autl1orities relied upon by the appellant which deal with tax on premises rather than tax on advertisements.\n\nThe essential conditions necessary for the applicatio1i of s. l 36 of the Act are- B\n\n( i) that a person should erect .. exhibit, fix or retain any advertisement upon any land, building, wall, hoarding or structure or display any advertisement in any manner;\n\n(ii) that erection. exhibition. fixation or retention or display of that advertisement must be exposed to public view; and\n\n(iii l that the advertisement must be exhibited in any place\n\npublic or private.\n\nThe sine qua 11011 for the application of this s.ection is, therefore, tltat the advertisements displayed by any person must be to public view in any manner whatsoever.\n\nOnce these conditions are satisfied, the person who exhibits the advertisements is liable to pay tax on such advertisements As, however, the Act was merely to regulate the\n\npremises falling within the Bangalore Municipal Corporation, it is obvious that the premises which did not fall within the Corporation or which belonged to other autonomous authorities could not be exigibl.e to tax: unless expressly so provided.\n\nFurthermore, it appears that the object of the Municipal Corporation in charging tax was to keep the public premises clean and water-tight and protect adverti9elllenlq\n\nwhich may amount to nuisance, because the Act lays down a proce.- dure which has to be followed before the adve1tisem.ents could be exhibited.\n\nConsistent \\\\ith this object, therefore, the third proviso to s. 136 of the Act grants an exemption from tax on any adverti9ement which is exhibited in any railway station or upon any wall or other\n\nproperty of a railway.\n\nHere also an exception is canoed out which is tha! if such an advertisement, even though on any portion of the railway property, faces any street it will not earn the exemption.\n\nThe central argument put forward before us by Mr. V. S. Desai couusel for the appellant is that the expression \"fronting any street\" appearing in cl. (e) of the third proviso to s. 136 qualifies the railway property and not the advertisement so that the fact that the advertisement fronting the street or which is exposed to public view or is visible to the public from the public street wm not make the advertisement exigible to tax, if the advertisement is within the railway premises or is adiacent to the compound wall or any other property wl1ich itself is fronting the street.\n\nIn other words, the contention was that having regard to the terminology of the word \"fronting\" it j5 not possible to conceive that two portion~ 0f the pronerty can front a street at one and the same time, unless they are in the same\n\n•. line.\n\nFrom the photographs produced before us, as also before the High Court, it appears that the hoardings containing the advertisements are no doubt fixoed just 2 or 3 feet behind the compound fencing of the railway station premises.\n\nMr. Desai, therefore, contended that once the compound wall which is in front of the girders on which the advertisements are fixed faces the street, there is no question of the advertisement facing the street. Secondly, it was contended that the rest of fronting the street as contained in the third proviso is that what is fronting the street is not the advertisement but the property of the railway.\n\nIn other words, it was argued that as in the instant case the compound wall already fronted the street, the hoardings containing the advertisements being behind the compound wall, though adjacent to it, cannot be said to front the street, because two properties cannot front the street at the same time.\n\nWe have given anxious consideration to the arguments advanced by the learned counsel for the appellant, but on a proper interpretation of the proviso we are unable to accept the same.\n\nTo begin with, if the proviso is read with referenre to the context, then it is absolutely clear that the verb \"fronting\" qualifies not the wall or the property but the advertisement.\n\nThe central subject-matter of s. 136 as also of the proviso is not a place or building but advertisement which alone attracted tax.\n\nIf we read the third proviso in the following manner, then the intention of the statute re. comes absolutely clear :\n\n\"Provided further that no such tax shall be levied on any advertisement ( e) which is exhibited within any railway station or upon any wall oc other property of a railway except any portion of the surface of such wall or property fronting any street.'' (Emphasis supplied) The verb \"fronting'', therefore, does not qualify wall or property mentioned in the latter part of the proviso but the noun advertisement. The test, therefore, laid down by this proviso is that the Court has to see whether the advertisement affixed whether inside the compound of the railway or not fronts the street.\n\nIf the advertisement fronts the sueet or faces the street even if it is within the railway premises, it will be exigible to tax.\n\nFor instance if the hoardings containing the advertisements were affixed just behind the compound wall and the advertisements did not face the street at all but faced the other side of the railway station their back being to the street, then the advertisements will certainly be exempt from tax and the proviso would clearly apply.\n\nThis seems to us to be the natural interpretation of the proviso having regard to the context in which it is placed.\n\nMr. Desai learned counsel for the appellant relied on the definition of the word \"fronting\" as used in Stroud's Judicial Dictionary, 4th End., at p. 1121, where the learned author while defining \"fronting\" observed thus :\n\n\"Fronting.\n\n(1) Premises \"fronting, adjoining, or abutting\" on a STREET, and as such chargeable with expense\n\n, )'\n\nof road-making under Public Health Act 1875 (c. 55), s. 150, did not need to be absolutely contiguous.\"\n\nIn the first place the author defines the word \"fronting\" within the meaning of the Public Health Act, 1875, which levied tax on premises.\n\nThe author was not at all concerned with tax on advertisement as in the instant case.\n\nIn the case referred to in the book, the Court was called upon to judge the expenses on road-making under the Public Health Act. It is, therefore, manifest that these considerations would not apply to the facts of the present case.\n\nOn the other hand in Webster's Third New International Dictionary Vol. I, the word \"front\" used as a verb is defined thus :\n\nA ,\n\n\"something that confronts or faces forward: as ( l) : a c bee of a building; esp. the face that contains the principal entrance. . ......................... put a facing upon (e.g. the building with brick) 5 : to face or look forward have the front toward, opposite, or over against the houses the street).\"\n\nAccording to the aforesaid dictionary meaning \"fronting\" merely means that the article should face or have its front toward, opposite or over against the house or the street.\n\nIn our opinion the word \"front- , ing\" has been used in the proviso not in any Iegal or technical sense but as used in ordinary parlance.\n\nIt is not a term of art but one that signifies its meaning according lo common notions.\n\nFor these reasons, therefore, we are clearly of the opinion that as the advertisements upon the hoardings in the instant case were undoubtedly facing or fronting the, street they were exigible to tax and the fact that they were affixed on the earth which formed the compound of the railway premises would make no difference in view of the plain and unambiguous language of the proviso. ,\n\nLearned counsel for the appellants relied on a decision of the Madras High Court in The Corporation of Madras v. Messrs The Oriental Mercantile Company Ltd., Madras.(') This authority, however, can have no application to the facts of the present case, because to begin with, there is nothing to show that the hoardings containing the advertisements were in any way fronting or facing the street.\n\nOn the other hand, the advertisements were merely on the outside wall within the railway compound.\n\nIn these circumstances, therefore, this case does not appear to be of any assistance to the appellant.\n\nReliance was then placed on a decision of the Queen's Bench Division in Ware Urban District Council v. Gaunt and Others(\") and particularly on the observations of Ashworth, J., where the Judge observed as follows : ·\n\n\"The remaining issue is, in a sense, the most troublesome <; f all, namely, whether it is open to the appellants to apportion part of the expense on premises situate on the westerly\n\n(I)\n\n[1965] 2 M.L.J. 440, (2) [l96J] 3 All E. R. 778, 787.\n\n4-707SCI/77\n\nA '\n\nside of Walton Road but separated from it by the public footpath.\n\nThis issue involves as an ancillary problem the question whether part of the expense should in any event be apportioned on the public footpath.\n\nSection 6 of the Act of 1892 provides, inter alia, that\n\n\" .... the expenses incurred by the urban authority in executing private street works shall be apportioned (subject as in this Ac_t mentioned) on the premises fronting, adjoining, or abutting on such street or part of a strret.\" \"\n\nThe observations extracted above will show that there also the Court was dealing not with a tax on advertisements but a tax on premises, and the question of the frontage was interpreted having regard to the place where the premises were situate.\n\nIn the same judgment, the learned Judge observed as follows :\n\n\"In each case, as it seems to me, regard must be paid to the context in which the words appear and, quite apart from any decided cases, I am inclined to think that the context in the present case points to an enlarged rather than a restricted meaning of the word \"adjoin\". \"\n\n(Emphasis ours)\n\nIt is, therefore, clear that the meaning of the words used in a particular statute has to be construed with reference to the context and not in isoiation, nor is it possible to lay down any rule of universal application in a matter like this.\n\nFor these reasons, therefore, this authority also does not appear to be apposite so far as the present case is concerned.\n\nThe Single Judge of the High Court, while interpreting the proviso, observed as follows :\n\n\"These advertisements in question are displayed on the hoardings standing close to the cement fencing at the .outer mark of the railway property. The cement railings are hardly about 3 feet in height and the advertisement boards are very much above the railings.\n\nThe Public street to which the advertisements are facing runs along the cement railings, with no other obstacle between the advertisement boards and the public view.\n\nTherefore, it can reasonably, be said that they are fronting the Public Street.\"\n\nWe find ourselves in complete agreement with the view taken by the Single Judge.\n\nThe Division Bench of the High Court, however, while upholding the judgment of the Sine Judge, observed as follows :\n\n\"In the instant case, we are not faced with any situation as the one envisaged in the second part of the exemption clause relative to advertisement on a wall or other property\n\nuf the railway 'frontage by street'.\n\nWe are concerned herein with the case of a hoarding put up by and belonging to the appellant and not the railway.\n\nHence, it is plain that no exemption on that score could be claimed on behalf of the appellant.\"\n\nThe High Court does not appear to have interpreted the proviso correctly.\n\nThe view of the High Court that the proviso would only apply B to advertisements of such ho<1rdings whose ownership lies with the Railway or which belong to the Railway is not borne out by cl. (e) of the third proviso to s. 136.\n\nIn other words the question of exigibility to tax is relatable not to the ownership of the hoarding but its situs.\n\nEven if the hoarding does not belong to the Railway but to some private party, if it does not front the street and is situated within the Railway premises1 or within the compound of the railway C premises it is clearly exempt.\n\nWe, therefore, do not approve of the line of reasoning adopted by the Division Bench.\n\nOn a close and careful interpretation, therefore, of cl. (e) of the third proviso to s. 136 of the Act we are clearly of the opinion that on the facts proved in the present case as the hoardings containing the advertisements were fronting the public street and we.re clearly expos- I) ed to public ·, iew and the members of the public passing through the street, they are not covered by the exemption contemplated by the proviso and are, therefore, exigible to tax.\n\nThe demand notice, therefore, served on the appellant by the Municipal Corporation for payment of tax is not legally erroneous.\n\nThe result is that the appeal is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 47, "entities": [{"text": "LINKS ADVERTISERS & BUSINESS PROMOTERS", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "LINKS ADVERTISERS & BUSINESS PROMOTERS", "offset_not_found": false}}, {"text": "COMMISSIONER, CORPORATION OF THE CITY OF\n\nBANGALORE", "label": "RESPONDENT", "start_char": 40, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE", "offset_not_found": false}}, {"text": "April 21, 1977", "label": "DATE", "start_char": 93, "end_char": 107, "source": "ner", "metadata": {"in_sentence": "LINKS ADVERTISERS & BUSINESS PROMOTERS\n\nCOMMISSIONER, CORPORATION OF THE CITY OF\n\nBANGALORE\n\nApril 21, 1977\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.J\n\nCity of Bangalore Municipal Corporation Act, 1949-S. 136, third proviso,\n\ncl. ("}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 110, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 128, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "City of Bangalore Municipal Corporation Act, 1949", "label": "STATUTE", "start_char": 156, "end_char": 205, "source": "regex", "metadata": {}}, {"text": "S. 136", "label": "PROVISION", "start_char": 206, "end_char": 212, "source": "regex", "metadata": {"linked_statute_text": "City of Bangalore Municipal Corporation Act, 1949", "statute": "City of Bangalore Municipal Corporation Act, 1949"}}, {"text": "Section 136", "label": "PROVISION", "start_char": 382, "end_char": 393, "source": "regex", "metadata": {"linked_statute_text": "City of Bangalore Municipal Corporation Act, 1949", "statute": "City of Bangalore Municipal Corporation Act, 1949"}}, {"text": "City of Bangalore Municipal Corporation Act, 1949", "label": "STATUTE", "start_char": 401, "end_char": 450, "source": "regex", "metadata": {}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 3228, "end_char": 3237, "source": "ner", "metadata": {"in_sentence": "Fazal Ali, J.) 671\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No.", "canonical_name": "Fazal Ali"}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 3418, "end_char": 3429, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Sanjev Aggarwal and R. B. Datar, for the appellant.", "canonical_name": "V. S. Desai couusel"}}, {"text": "Sanjev Aggarwal", "label": "LAWYER", "start_char": 3431, "end_char": 3446, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Sanjev Aggarwal and R. B. Datar, for the appellant."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 3451, "end_char": 3462, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Sanjev Aggarwal and R. B. Datar, for the appellant."}}, {"text": "S. S. Java", "label": "LAWYER", "start_char": 3484, "end_char": 3494, "source": "ner", "metadata": {"in_sentence": "S. S. Java/i, Jagannath Shetty and B. P. Singh for resp."}}, {"text": "Jagannath Shetty", "label": "LAWYER", "start_char": 3498, "end_char": 3514, "source": "ner", "metadata": {"in_sentence": "S. S. Java/i, Jagannath Shetty and B. P. Singh for resp."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 3519, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "S. S. Java/i, Jagannath Shetty and B. P. Singh for resp."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 3549, "end_char": 3561, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad and Girish Chandra, for the Intervener Union of B\n\nIndia."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 3566, "end_char": 3580, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad and Girish Chandra, for the Intervener Union of B\n\nIndia."}}, {"text": "FAZAL ALI", "label": "JUDGE", "start_char": 3693, "end_char": 3702, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL ALI, J.-Whether hoardings containing advertisements C fixed in the premises of a railway station fronting a public street are exigible to tax under the provisions of s. 136 of the City of Bangalore Municipal Corporation Act, 1949 (Act No.", "canonical_name": "Fazal Ali"}}, {"text": "s. 136", "label": "PROVISION", "start_char": 3865, "end_char": 3871, "source": "regex", "metadata": {"statute": null}}, {"text": "City of Bangalore Municipal Corporation Act, 1949", "label": "STATUTE", "start_char": 3879, "end_char": 3928, "source": "regex", "metadata": {}}, {"text": "Municipal Corporation of the City of Bangalore", "label": "ORG", "start_char": 5175, "end_char": 5221, "source": "ner", "metadata": {"in_sentence": ", The Municipal Corporation of the City of Bangalore being of the opinion that the hoardings containing advertisements put up by the appellant were exigible to tax issued a demand notice dated March 7 1973 calling upon the appellant to pay a sum of Rs."}}, {"text": "March 7 1973", "label": "DATE", "start_char": 5362, "end_char": 5374, "source": "ner", "metadata": {"in_sentence": ", The Municipal Corporation of the City of Bangalore being of the opinion that the hoardings containing advertisements put up by the appellant were exigible to tax issued a demand notice dated March 7 1973 calling upon the appellant to pay a sum of Rs."}}, {"text": "s. 136", "label": "PROVISION", "start_char": 5681, "end_char": 5687, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court H of Karnataka", "label": "COURT", "start_char": 5863, "end_char": 5888, "source": "ner", "metadata": {"in_sentence": "The appellant then filed a writ petition before the High Court H of Karnataka praying that the order of the Corporation demanding payment of tax be quashed, because the advertisements were clearly\n\nexempt from tax by virtue of the aforeaid proviso."}}, {"text": "April 4, 1974", "label": "DATE", "start_char": 6153, "end_char": 6166, "source": "ner", "metadata": {"in_sentence": "The writ peti- tion was in the first instance heard by a single Judge who by his order dated April 4, 1974 overruled the contention of the appellant and dismissed the petition."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 6459, "end_char": 6467, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 6719, "end_char": 6724, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 136", "label": "PROVISION", "start_char": 7357, "end_char": 7363, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 136", "label": "PROVISION", "start_char": 8392, "end_char": 8403, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 136", "label": "PROVISION", "start_char": 8736, "end_char": 8742, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 136", "label": "PROVISION", "start_char": 8905, "end_char": 8911, "source": "regex", "metadata": {"statute": null}}, {"text": "Bangalore Municipal Corporation", "label": "ORG", "start_char": 9950, "end_char": 9981, "source": "ner", "metadata": {"in_sentence": "Once these conditions are satisfied, the person who exhibits the advertisements is liable to pay tax on such advertisements As, however, the Act was merely to regulate the\n\npremises falling within the Bangalore Municipal Corporation, it is obvious that the premises which did not fall within the Corporation or which belonged to other autonomous authorities could not be exigibl.e to tax: unless expressly so provided."}}, {"text": "s. 136", "label": "PROVISION", "start_char": 10544, "end_char": 10550, "source": "regex", "metadata": {"statute": null}}, {"text": "V. S. Desai couusel", "label": "LAWYER", "start_char": 10934, "end_char": 10953, "source": "ner", "metadata": {"in_sentence": "The central argument put forward before us by Mr. V. S. Desai couusel for the appellant is that the expression \"fronting any street\" appearing in cl. (", "canonical_name": "V. S. Desai couusel"}}, {"text": "s. 136", "label": "PROVISION", "start_char": 11062, "end_char": 11068, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 11948, "end_char": 11953, "source": "ner", "metadata": {"in_sentence": "Mr. Desai, therefore, contended that once the compound wall which is in front of the girders on which the advertisements are fixed faces the street, there is no question of the advertisement facing the street."}}, {"text": "s. 136", "label": "PROVISION", "start_char": 13052, "end_char": 13058, "source": "regex", "metadata": {"statute": null}}, {"text": "Stroud", "label": "OTHER_PERSON", "start_char": 14549, "end_char": 14555, "source": "ner", "metadata": {"in_sentence": "Mr. Desai learned counsel for the appellant relied on the definition of the word \"fronting\" as used in Stroud's Judicial Dictionary, 4th End.,"}}, {"text": "Public Health Act 1875", "label": "STATUTE", "start_char": 14806, "end_char": 14828, "source": "regex", "metadata": {}}, {"text": "s. 150", "label": "PROVISION", "start_char": 14838, "end_char": 14844, "source": "regex", "metadata": {"linked_statute_text": "Public Health Act 1875", "statute": "Public Health Act 1875"}}, {"text": "Public Health Act, 1875", "label": "STATUTE", "start_char": 14974, "end_char": 14997, "source": "regex", "metadata": {}}, {"text": "Madras High Court", "label": "COURT", "start_char": 16645, "end_char": 16662, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the appellants relied on a decision of the Madras High Court in The Corporation of Madras v. Messrs The Oriental Mercantile Company Ltd., Madras.(')"}}, {"text": "Ashworth", "label": "JUDGE", "start_char": 17346, "end_char": 17354, "source": "ner", "metadata": {"in_sentence": "Reliance was then placed on a decision of the Queen's Bench Division in Ware Urban District Council v. Gaunt and Others(\") and particularly on the observations of Ashworth, J., where the Judge observed as follows : ·\n\n\"The remaining issue is, in a sense, the most troublesome <; f all, namely, whether it is open to the appellants to apportion part of the expense on premises situate on the westerly\n\n(I)\n\n[1965] 2 M.L.J. 440, (2) [l96J] 3 All E. R. 778, 787."}}, {"text": "Section 6", "label": "PROVISION", "start_char": 17874, "end_char": 17883, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 136", "label": "PROVISION", "start_char": 20661, "end_char": 20667, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 136", "label": "PROVISION", "start_char": 21186, "end_char": 21192, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_678_682_EN", "year": 1977, "text": "SUPERINTENDENT OF POST OFFICES ETC. ETC.\n\nP. K. RAJAMMA ETC. ETC.\n\nApril 22, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nConstitution of India, Art. 311(2)-Whelher the post of extra Departmental Branch Postmasters/ Sub Post-Masters/ Delivery agents a \"Civil Post\" within 1he nleaning of Art. 311(2)-Posts and Telegraphs Extra-Departmental Agenis (Conduct and Service) Rules, 1964--Rule 2(b).\n\nThe respondents in all these appeals are \"extra departmental agents\" within the meaning of Rule 2(b) of the Posts and Telegraphs Extra Departmental Agents (Conduct of Service) Rules, 1964 issued under the authority of the Government of India. They were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, admittedly without complying with the provisions of Art. 311(2) of the Constitution. The question in each case is whether the respondent held a \"civil , post\" as contemplated in Art. 311 (2) of the Constitution. The High Court of Kerala, Andhra Pradesh & Orissa held that the respondents held a civil post under the Union of India and the orders terminating their services in violation of Art. 31.1(2) of the Constitution were invalid.\n\nDismissing the appeals the Court,\n\nHELD : ( 1) An \"extra departmental agent\" held a \"civil post\" and his dismissal or removal would be invalid, if there was non-compliance with Art. 311(2) of the Constitution. f680 B-C. 682 El\n\n(2) An extra departmental agent is not a casual worker, but he holds a post under the administrative control of the State. It is apparent from the 1964 Rules that the employment of an extra departmental agent is in a post which exists \"apart from\" the person who happens to fill it at any particular time.\n\nThough such a post is outside the regular civil service, there is no doubt it is a post under the State. [681 E-F] State of Assam & Ors. v. Kanak Chandra Dutta [1967] I SCR 679 @ 682\n\napplied.\n\n(3) The 1964 rules make it clear that these extra-departmental agents work under the direct control and supervision of the authority who obviously have the right to control the manner in which they must carry out their duties.\n\nThere can be no doubt, therefore, that the relationship between the Postal Authoritits and the extra-departmental agents are of master and S<>rvant.\n\n(662 C-EJ\n\nVenkaJaswanzy v. Superintendent, Post Offices, AIR 1957 Orissa\n\n112; V.\n\nSubbaravalu v. Superintendent of Post Offices, AIR 1961 Madras 166, l1el<l inapplicable.\n\nC!vIL APPELLATE JURISDICTION: c. As Nos. 1172, 1354, 1355 1and 1751 of 1972.\n\n(Appeals by Special Leave from the Judgment and Order dated the 27.9.1971 of the Kerala High Court in O.P. No. 1339/70, W.A.No.\n\nH 8/70, W.A. No. 420/69 and O.P. No. 862 of 1969 respectively.)\n\nAND Civil Appehl No. 2275 of 1972\n\nSUPDT. POST OFFICES v. P. K. RA.TAMMA (Gupta, J.) 679\n\n(Appeal by Special Leave from the Judgment and Order dated the 18.11.1971 of the Andhra Pradesh High Court in Writ Petition No. 5662/70).\n\nAND Civil Appeals Nos. 1015173, 1865/74 and CA No. 506/76.\n\n(From the Judgments and Orders dated the 7-9-72, 22-7-74, and B 30-10.1975 of the Andhra Pradesh High Court in Writ Petitions Nos. 4717171, 3914/74 and 4213/75 respectively).\n\nAND CA No. 1866 of 1973 and 1867 /73.\n\n(Appeais by Special Leave from the Judgment and Order dt. the 15.2.1972 of the Andhra Pradesh High Court in Writ Petition No. c\n\n2933 and 3385/71 respectively.)\n\nAND Civil Appeal No. 1234 of 1974.\n\n(Appeal by Special Leave from the Judgment and Order dated the 18.10.1973 of the Andhra Pradesh High Court in S.A. No. 360 of D 1972).\n\nAND Civil Appeal Nos. 1300 and 1393 of 197 6.\n\n(From the Judgment and Order dated the 5-12-1975 of the Kerala High Court in Writ Appeals Nos. 414 & 415 of 1975).\n\nAND Civil Appeal No. 1313 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated the 10.3.1976 of the Orissa High Court in O.J. C. No. 531/74).\n\n Niren De, Attorney General of India in CAs 1171, 1354-1355; V. ('. Raman, Addi. Sol. General in CAs 2275 and 1313 with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra, for the appellants in all the appeals.\n\nVepa Sarathi, N. Sudhakaran and P. K. Pillai for respondents in\n\nCA 1172/72.\n\nG Vepa Sarathi (1354) K. M. K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976.\n\nMrs. S. Gopalakrishnan, for respondent in CA 1355.\n\nK. layaram and K. Ram Kumar for respondents in CAs 1866-67, 1015/73 and 1865 of 1974 and 506/76.\n\nMrs. Veena Devi Khanna, for respondent in CA 2275/72.\n\nC. S. S Rao, for respondent in CA 1313/76.\n\nA The Judgment of the Court was delivered by\n\nGUPTA, S.-The respondents in all these fourteen appeals, some of which are on certificate and some by special leave, are extra-departmental agents connected with the postal departioont.\n\nSix of these appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from the Orissa High Court.\n\nThese res- B pondents were either dismissed or removed from service during the period between January !, 1966 and June 18, 1974, and admittedly the order of dismissal or removal was passed without complying with the provisions of Article 311 (2) of the Constitution.\n\nThe question in each case is whether the respondent held a civil post as contemplated in Article 311 of the Constitution; if he did the dismissal or removal, as the case may be, would be unquestionably invalid for non-compli- C ance with Article 311 ( 2) . ·\n\nThe conditions of service of the respondents arc governed by a body of rnles called the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (herc:nafter called the mies) issued under the authority of the Government of India. Rule D 2 (b) of the rnles defining \"Extra Departmental Agent\" includes within the category, among others, Extra Departmental Sub Postmastern.\n\nExtra Departmental Branch Postmasters, Extra Departmental Delivery Agents, and several sections of class IV employees.\n\nEleven of the respondents arc extra departmental branch postmasters, one is an extra depai tmental delivery agent, and two are class IV extra departmental\n\nemployees. In all these casesl the High Courts have found that the respondents held civil posts under the Union of India and the orders terminating their services in violation of Article 311 (2) of the Constitution were invalid.\n\nThis Court in State of Assam and others v.\n\nKanak Chandra Dutta(') has explained what a civil post is.\n\nIn that case the respondent who was a Mauzadar in the Assam Valley was dismissed from se1vice in disregard of the provisions of Article 311 (2).\n\nIt was held\n\ntat \"having regard to the existing system of his recruitment, employment and functions\", he was \"a servant and a holder of a civil post under the State\", and therefore entitled to 'the protection of Article 311 ( 2) .\n\nThis Court observed :\n\n\". . . . a civil post means a post not connected with defence and outside the regular civil servioes.\n\nA post is a service or employment. ...... There is a relationship of master and servant between the State and a person holding a post under it.\n\nThe existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneratiqu.\"\n\n(tl [I967J l s.c.~. 679 (682).\n\nSUPDT. POST OFFICES v. P. K. RAJAMMA (Gupta, J.) 681\n\nA post, it was explained, exists apart from the holder of the post. \"A post may be created before the appointment or simultaneously with it.\n\nA post is an employment, but every employment is not a post.\n\nA casual labourer is not the holder of a post.\n\nA post under the State means a post under the administrati¥e control of the State.\n\nThe State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.\" Turning now to the. rules by which the respondents were admittedly governed, it appears that they contain elaborate provisions controlling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of these extra departmental agents.\n\nThere is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees.\n\nRule 5 states that the employees governed by these rules shall be entitled to such leave as may be detemiined by the Government from time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he could have boon granted leave he shall be removed from the service unless the Government decides otherwise in the exceptional circumstances of any particular case.\n\nThe services of employees who had not put in more than , three years' continuous service are liable to be terminated at any time under rule 6 for unsatisfactory work or for any administrative reason. ' The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them.\n\nA right of appeal is provided against an order imposing anY. of the penalties on the employee.\n\nVarious other conditions of service are also provided in these rules,\n\nIt is thus clear that an extra departmental agent is not a , casual worker but he holds a post under the administrative control of the State.\n\nIt is apparent from the rules that the employment of an extra departmental agent is in a post which exists \"apart from\" the person who happens to fill it at any particular time. Though such a post 1s outside the regular civil services, there is no doubt it is a post under the State.\n\nThe tests of a civil post laid down by this Court in Kanak Chandra Dutta's case (supra) are clearly satisfied in the case of the extra departmental agents.\n\nFor the appellants it is contended that the relationship between the postal authorities and the extra departmental agents is not of master and servant, but really of principal and agent.\n\nThe difference between the relations of master and servant and principal and agent was pointed out by this Court in Lakshminaraya11 Ram Gopal and Son Ltd. v.\n\nThe Government of Hyderabad.(') On page 401 of the report the followmg lines from Halsbury's Laws of England (Hailsham edition) Volume 1, at page 193, article 345, were quoted with approval in explaining the difference :\n\n(I) [l955J l S, CR. 393.\n\nA •\n\n\"An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor .\n\nA servant acts under the direct control and supervision of his\n\nmaster, and is bound to conform to all reasonable orders given him in the course of 11is work, an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result. An agent, thougb bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the drrect control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master's implied agent, the extent of the agency depending upon the duties or position of the s-ervant.\"\n\nThe rules make it clear that these extra departmental agents work under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out tlmr\n\nduties.\n\nThere can be no doubt therefore that the relationship between the postal authorities and the extra departmental agents is one D of master and servant. Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Conrt Venkata Swamy\n\nv. Superintendent, Post Offices(') and the other of the Madras High Court V. Subbaravalu v. Superintendent of Post Offices. (2) The judgment in these cases were rendered before the elaborate rules governing the conduct and service of these extra departmental agents were brought into operation in 1964. We do not therefore think an E examination of these two decisions will be relevant or useful for disposing of the appeals before us. .i...\n\nThe appeals arc accordingly dismissed with costs : one set of hearing fee in respect of all the appeals except' C.A. 1172 of 1972 C.A. 1751 of 1972 and C.A. 2275 of 1972 in which separate orders as to costs was made earlier.\n\nS.R.\n\n(!) AIR 1957 Orissa 112 ..\n\n(2) AIR 1961 Madras 166-\n\nAppeals dismissed", "total_entities": 49, "entities": [{"text": "SUPERINTENDENT OF POST OFFICES ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "SUPERINTENDENT OF POST OFFICES ETC. ETC", "offset_not_found": false}}, {"text": "P. K. RAJAMMA ETC. ETC", "label": "RESPONDENT", "start_char": 42, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "P. K. RAJAMMA ETC. ETC", "offset_not_found": false}}, {"text": "April 22, 1977", "label": "DATE", "start_char": 67, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "April 22, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J\n\nConstitution of India, Art."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 84, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 101, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ", "label": "JUDGE", "start_char": 117, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 139, "end_char": 160, "source": "regex", "metadata": {}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 162, "end_char": 173, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 305, "end_char": 316, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Government of India", "label": "ORG", "start_char": 633, "end_char": 652, "source": "ner", "metadata": {"in_sentence": "The respondents in all these appeals are \"extra departmental agents\" within the meaning of Rule 2(b) of the Posts and Telegraphs Extra Departmental Agents (Conduct of Service) Rules, 1964 issued under the authority of the Government of India."}}, {"text": "January 1, 1966", "label": "DATE", "start_char": 731, "end_char": 746, "source": "ner", "metadata": {"in_sentence": "They were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, admittedly without complying with the provisions of Art."}}, {"text": "June 18, 1974", "label": "DATE", "start_char": 751, "end_char": 764, "source": "ner", "metadata": {"in_sentence": "They were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, admittedly without complying with the provisions of Art."}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 818, "end_char": 829, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 944, "end_char": 952, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court of Kerala, Andhra Pradesh & Orissa", "label": "COURT", "start_char": 982, "end_char": 1027, "source": "ner", "metadata": {"in_sentence": "The High Court of Kerala, Andhra Pradesh & Orissa held that the respondents held a civil post under the Union of India and the orders terminating their services in violation of Art."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 1155, "end_char": 1162, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 1380, "end_char": 1391, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "SUPDT. POST OFFICES", "label": "PETITIONER", "start_char": 2791, "end_char": 2810, "source": "ner", "metadata": {"in_sentence": "2275 of 1972\n\nSUPDT."}}, {"text": "P. K. RA.TAMMA", "label": "RESPONDENT", "start_char": 2814, "end_char": 2828, "source": "ner", "metadata": {"in_sentence": "POST OFFICES v. P. K. RA.TAMMA (Gupta, J.) 679\n\n(Appeal by Special Leave from the Judgment and Order dated the 18.11.1971 of the Andhra Pradesh High Court in Writ Petition No."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3917, "end_char": 3925, "source": "ner", "metadata": {"in_sentence": "Niren De, Attorney General of India in CAs 1171, 1354-1355; V. ('."}}, {"text": "B. Datta", "label": "LAWYER", "start_char": 4036, "end_char": 4044, "source": "ner", "metadata": {"in_sentence": "General in CAs 2275 and 1313 with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra, for the appellants in all the appeals."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 4076, "end_char": 4090, "source": "ner", "metadata": {"in_sentence": "General in CAs 2275 and 1313 with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra, for the appellants in all the appeals."}}, {"text": "Vepa Sarathi", "label": "LAWYER", "start_char": 4132, "end_char": 4144, "source": "ner", "metadata": {"in_sentence": "Vepa Sarathi, N. Sudhakaran and P. K. Pillai for respondents in\n\nCA 1172/72."}}, {"text": "N. Sudhakaran", "label": "LAWYER", "start_char": 4146, "end_char": 4159, "source": "ner", "metadata": {"in_sentence": "Vepa Sarathi, N. Sudhakaran and P. K. Pillai for respondents in\n\nCA 1172/72."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 4164, "end_char": 4176, "source": "ner", "metadata": {"in_sentence": "Vepa Sarathi, N. Sudhakaran and P. K. Pillai for respondents in\n\nCA 1172/72."}}, {"text": "G Vepa Sarathi", "label": "PETITIONER", "start_char": 4210, "end_char": 4224, "source": "ner", "metadata": {"in_sentence": "G Vepa Sarathi (1354) K. M. K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976."}}, {"text": "K. M. K. Nair", "label": "LAWYER", "start_char": 4232, "end_char": 4245, "source": "ner", "metadata": {"in_sentence": "G Vepa Sarathi (1354) K. M. K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976."}}, {"text": "B. Krishnan", "label": "LAWYER", "start_char": 4255, "end_char": 4266, "source": "ner", "metadata": {"in_sentence": "G Vepa Sarathi (1354) K. M. K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976."}}, {"text": "S. Gopalakrishnan", "label": "LAWYER", "start_char": 4337, "end_char": 4354, "source": "ner", "metadata": {"in_sentence": "Mrs. S. Gopalakrishnan, for respondent in CA 1355."}}, {"text": "K. layaram", "label": "LAWYER", "start_char": 4384, "end_char": 4394, "source": "ner", "metadata": {"in_sentence": "K. layaram and K. Ram Kumar for respondents in CAs 1866-67, 1015/73 and 1865 of 1974 and 506/76."}}, {"text": "K. Ram Kumar", "label": "LAWYER", "start_char": 4399, "end_char": 4411, "source": "ner", "metadata": {"in_sentence": "K. layaram and K. Ram Kumar for respondents in CAs 1866-67, 1015/73 and 1865 of 1974 and 506/76."}}, {"text": "Veena Devi Khanna", "label": "LAWYER", "start_char": 4487, "end_char": 4504, "source": "ner", "metadata": {"in_sentence": "Mrs. Veena Devi Khanna, for respondent in CA 2275/72."}}, {"text": "C. S. S Rao", "label": "LAWYER", "start_char": 4537, "end_char": 4548, "source": "ner", "metadata": {"in_sentence": "C. S. S Rao, for respondent in CA 1313/76."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 4627, "end_char": 4632, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nGUPTA, S.-The respondents in all these fourteen appeals, some of which are on certificate and some by special leave, are extra-departmental agents connected with the postal departioont.", "canonical_name": "GUPTA"}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 4848, "end_char": 4865, "source": "ner", "metadata": {"in_sentence": "Six of these appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from the Orissa High Court."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 4882, "end_char": 4907, "source": "ner", "metadata": {"in_sentence": "Six of these appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from the Orissa High Court."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 4925, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "Six of these appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from the Orissa High Court."}}, {"text": "January !, 1966", "label": "DATE", "start_char": 5039, "end_char": 5054, "source": "ner", "metadata": {"in_sentence": "These res- B pondents were either dismissed or removed from service during the period between January !,"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 5175, "end_char": 5186, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 5302, "end_char": 5313, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 5451, "end_char": 5462, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 6325, "end_char": 6336, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Assam Valley", "label": "GPE", "start_char": 6534, "end_char": 6546, "source": "ner", "metadata": {"in_sentence": "In that case the respondent who was a Mauzadar in the Assam Valley was dismissed from se1vice in disregard of the provisions of Article 311 (2)."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 6608, "end_char": 6619, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 6838, "end_char": 6849, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gupta", "label": "JUDGE", "start_char": 7471, "end_char": 7476, "source": "ner", "metadata": {"in_sentence": "POST OFFICES v. P. K. RAJAMMA (Gupta, J.) 681\n\nA post, it was explained, exists apart from the holder of the post. \"", "canonical_name": "GUPTA"}}, {"text": "Kanak Chandra Dutta", "label": "OTHER_PERSON", "start_char": 9913, "end_char": 9932, "source": "ner", "metadata": {"in_sentence": "The tests of a civil post laid down by this Court in Kanak Chandra Dutta's case (supra) are clearly satisfied in the case of the extra departmental agents."}}, {"text": "article 345", "label": "PROVISION", "start_char": 10515, "end_char": 10526, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 12063, "end_char": 12080, "source": "ner", "metadata": {"in_sentence": "Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Conrt Venkata Swamy\n\nv. Superintendent, Post Offices(') and the other of the Madras High Court V. Subbaravalu v. Superintendent of Post Offices. ("}}]}
{"document_id": "1977_3_683_686_EN", "year": 1977, "text": "LJFE INSURANCE CORPORATION OF !NOIA\n\nKOTA RAMABRAHMAM AND ORS.\n\nApril 22, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJJ\n\nLife Insurance Corporation Act, 1956-S. 9(1)-Madras Agriculturi'sts Relief Act, 1938 scaled down certain debts of agriculturists-Act saved debts due to a Corporation formed under special Indian Law-Loans given by Inswance Companies to agriculturists-If could be deemed tC# have been entered into by the Corporation after it took ol'er business of l11surance Con1panies.\n\nThe respDndents, who were agriculturists, took loans fron1 two insurance companies 1n 1950 and 1952. In suits for the recovery of the debts, filed by the Life Insurance Corporation after it had taken over the insurance companies, the respondents claimed that the debts should be scaled down in accordance with s. 4(e) of the Madras Agriculturists Relief Act, 1938. Section 4(e) 'kept certain debts and liabilities of agriculturists out of the reach of the Act, including any debt due to any Corporation formed in pursuance of any \"Special Indian Law''. The Corporation's contention that the debts would not be affected by s. 4(e) was rejected by the trial court as well as the High Court which held that because of the genesis of the debts~ s. 4(e) was attracted.\n\nOn arpeal to this Court it was contended thats. 9(1) of the Life Insurance Corporation Act created a legal fiction that contracts to which an insurer was a party shall be deemed to have been entered into or issued in favour of the Cor poration and that being so, the debt<; in question should be taken as due to the Corporation from the beginning and, therefore, outsides. 4(e) of the 1938Act.\n\nDismissing the appeals,\n\nHELD: Section 9(1) of the Life Insurance Corporation Act, 1956 does not create any legal fiction.\n\nIt seeks to provide that the contracts and other instru ments subsisting immediately before the vesting may be enforced and acted upon by the Corporation after vesting. Under s. 9(2) any pending proceeding on the appointed day by or against an insurer may be continued by or against the Corporation. Section 7 ( 1 ) provides that all the assets and liabilities of the insurers relating to their 1ife insurance business vest in the Corporation. Under s. 7(2) the liabilities include obligations of whatever kind existing on the appointed day. The debl'i due to the insurers in these two cases were liable to be scaled down in accordance \\vith the provisions of the 1938Act which was a liability or obligation appertaining to the debts on the appointed day, that is, September 1, 1956. This liability or obligation annexed to the debts must be held to have been transferred to and vested in the Corporation along with the assets of the insurers under s. 7 and the Corporation in seeking to recover the debts cannot ignore the obligations of the insurers in respect of the transactions. [685 G; 686 Al\n\nCIVIL APPELLATE JURISDICTION : c. A. Noo. 1959 & 1960 of 1970 .\n\n(Appeals by Special Leave from the Judgment and Order dated the 10-10-1969 of the Andhra Pradesh High Court in\n\nLP.A.\n\nNo. 165/67 and A.S. No. 233/67 respectively).\n\nA. K. Somnath Iyer, K. L. Hat/ii, P. C. Kapoor, for the appellant\n\nin both the appeals.\n\nG. Vmkatnrama Sastrr, B. Partlwsarthi. for respondents in CA 1959/70.\n\nA •\n\nA. Subba Rao, for respondents in CA 1969/70.\n\nThe Judgment of the Court was delivered by\n\n(1977] 3 S.C.R.\n\nGUPTA'. J .-Thse are two appeals by the Life Insurance Corporation of India (hereinafter referred to as the Corporation) with special leave obtained from this Court against a common Judgment of the Andhra Pradesh High Court disposing of two appeals preferred by the Corporation.\n\nThe appeals before the High Court arose out of two suits instituted by the Corporation.\n\nFor the question that arises !or determination, which we will presently state, it is not necessary to 5et out the facts in any great detail.\n\nOne of the suits was brought in I% I for recovery of a sum of about Rs. 17,000/-, after giving credit to the payments made by the defendants, due on a mqrtgage executed by the defendants in 1950 in favour of the Andhra Insurance Company ot Masulipatnam.\n\nThe other suit was filed in 1962 for recovery of about Rs. 45,555/- also due on a mortgage which was executed in 1952 by the defendants of this suit in favour of the Nr Pioneer Insurance Company Ltd., Bombay.\n\nThus in both cases the loans were incurred long before the Corporation was established on September l, 19~6 under the Life Insurance Corporation Act, 1956.\n\nIn both suits tlrc mortgagors claimed that the debt should be scaled down in accordance with the provisions of the Madras Agriculturists Relief Act (Madras Act IV of 1938) (hereinafter referred to as the Madras Act]. It 1s not disputed in either case that the mortgagors are agriculturists.\n\nThe trial court upheld their claim, scaled down the debts and deerced the suits accordingly.\n\nThe High Conrt on appeal affirmed the decision.\n\nThe claim was resisted by the Corporation relying on the provisions of section 4 ( e) of the Madras Act which is as follows :\n\n\"4. Nothing in this Act shall affect debts and . liabilities of an agriculturist falling under the following heads :\n\nx x x\n\n( e) any liability in respect of any suin due to any cooperative Society, including a land mortgage bank, registered or deemed to be registered under the Madras Co-operat!ve Societies Act, 1932 or any debt due o any Corpora~1on formed in pursuance of an Act of Parliament (of the Uruted Kingdom) or of any special Indian Law or Royal Charter or Letters Patent.\"\n\nThe question arising for decision in the appeals is whether, in resp.::cl of the debts sought to be recovered, the application of the Madras Act is barred by section 4(e) of that Act.\n\nSection 4 of the Madras Act keeps certain debts and liabilities out of the reach of the Act including any debt due to any corpo!atlon formed in pursuance of \"any special Indian law\".\n\nThere is no d1sp_ute that the Corporation established under the Li!e Jnsu.rance Corporatmn Act 1956 is a corporation as contemplated m section 4(e). It is cO'ltended on behalf of the appellant that the debts in question in these cases would not therefore be affected by anything contained in the\n\n...\n\nL. I. c. v. KOTA RAMABRAHMAM (Gupta,: J.) 685\n\nMadras Act.\n\nThis contention was not accepted either by the tnal court or the High Court who held that the debts were due originally not to the corporation but to the insurers whose life insurance business was taken over by the corporation and because of the genesis of the debts, section 4(e) of the Madras 'Act was not attracted.\n\nIt will be necessary at this stage to refer to certain provisions ot !he Life Insurance Corporation Act, 1956. It is an Act \"to provide for the nationalisation of life insuran~ business in India by transferring\n\nall such business to a corporation established for the purpose and to provide for the regulation and control of the business of the corporation and for matters connected therewith or incidental thereto\".\n\nSub-section ( 1) of section 7 of the Act provides that on the appointed day all the assets and liabilities appertaining to the life insurance business of all insurers shall be transferred to and vei>ted in the corporation. 'Appointed day' has been defined in section 2(1) as the date on which the corporation is established, which is September 1, 1950 .\n\nSub-section (2) of section 7 states inter alia, that the liabilities mentioned in sub-section ( 1) \"sha; l be deemed to include all debts, liabilities and obligations of whatever kind\" existing on the appointed day and relating to the life insurance business of the insurer.\n\nSection Y describes the general effect of vesting of the insurers' business in the corporation.\n\nSub-section ( 1) of the section states that unless otherwise expressly provided by the Act, all contracts, agreements and other instruments subsisting immediately before the appointed day to which the insurer whose business has vei>!ed was a party or which are m favour of such insurer shall \"be of as ru:1 force and effect against or in favour of the corporation, as the case may be, and may be enforced or acted upon as fully and effectually as if, instead of the insurer, the corporation had been a party thereto or as if they had been entered into or itssued in favour of the corporation\".\n\nSub-section (2) of this section says that if on the appointed day any suit, appeal or other legal proceeding was pending by or against an insurer relating to his life insurance business, it will not be prejudicially affected by reason of the transfer to the Corporation of the business of the insurer but may be continued by or against the corporation.\n\nMr. Somnath Iyer appearing for the appellants in both the appeals contends that sub-section ( 1) of section 9 creates a legal fiction that the contracts or instruments to which the insurer was a party shall be deemed to have been entered into or issued in favour of the corporation. That being so, the argument proceeds, the debts in question G should be taken as due to the corporation from the beginning, and, therefore, outside the scope and ambit of the Madras Act in view ol section 4(e) of that Act.\n\nWe do not however think that sub-section\n\n(1) of section 9 creates any legal fiction of that kind.\n\nThis subsection seeks to provide that the contracts and other instruments subsisting immediately before the vesting may be enforced and acted upon by the Corporation after vesting.\n\nThis is made clear by sub-section H\n\n(2) of section 9 which states that any pending proceeding on the appointed day by or against an insurer may be continued by or against the corporation.\n\nUnder sub\"Section (l) of section 7 all the assets\n\nA •\n\nand liabilities of the insurers relatini: to their life insurance business vest in the corporation on the appomted date.\n\nSub-section\n\n(2) ot section 7 states that the liabilities include obligations of whatever kin<l existing on the appointed day.\n\nThe debts due to the insurers in thes~ two cases were liable to be scaled down in accordance with the provisions of the Madras Act which was a liability or obligation appertaining to the debts on September 1, ~Q56. the appointed day.\n\nThis liability or obligation annexed to the debts must be held to have been transferred to and vested in the corporation along with the assets ot the insurers under section 7 of the Act, and the corporation in seeking to recover the mortgage dues cannot ignore the obligations of the\n\ninsurers in respect of the transactions.\n\nIn our opinion the view taken by the High Court was therefore correct.\n\nThe appeals arc accordingly dismissed with costs.\n\nOne hearing fee.\n\nP.B.R.\n\nAppeals dis111issed.", "total_entities": 57, "entities": [{"text": "LJFE INSURANCE CORPORATION OF !NOIA", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "LIFE INSURANCE CORPORATION OF INDIA", "offset_not_found": false}}, {"text": "KOTA RAMABRAHMAM AND ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "KOTA RAMABRAHMAM AND ORS", "offset_not_found": false}}, {"text": "April 22, 1977", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "April 22, 1977\n\n(M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJJ\n\nLife Insurance Corporation Act, 1956-S. 9(1)-Madras Agriculturi'sts Relief Act, 1938 scaled down certain debts of agriculturists-Act saved debts due to a Corporation formed under special Indian Law-Loans given by Inswance Companies to agriculturists-If could be deemed tChave been entered into by the Corporation after it took ol'er business of l11surance Con1panies."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 81, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 98, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM", "label": "JUDGE", "start_char": 114, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 135, "end_char": 171, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 9(1)", "label": "PROVISION", "start_char": 172, "end_char": 179, "source": "regex", "metadata": {"linked_statute_text": "JJJ\n\nLife Insurance Corporation Act, 1956", "statute": "JJJ\n\nLife Insurance Corporation Act, 1956"}}, {"text": "Relief Act, 1938", "label": "STATUTE", "start_char": 203, "end_char": 219, "source": "regex", "metadata": {}}, {"text": "s. 4(e)", "label": "PROVISION", "start_char": 816, "end_char": 823, "source": "regex", "metadata": {"linked_statute_text": "Relief Act, 1938", "statute": "Relief Act, 1938"}}, {"text": "Madras Agriculturists Relief Act, 1938", "label": "STATUTE", "start_char": 831, "end_char": 869, "source": "regex", "metadata": {}}, {"text": "Section 4(e)", "label": "PROVISION", "start_char": 871, "end_char": 883, "source": "regex", "metadata": {"linked_statute_text": "the Madras Agriculturists Relief Act, 1938", "statute": "the Madras Agriculturists Relief Act, 1938"}}, {"text": "s. 4(e)", "label": "PROVISION", "start_char": 1128, "end_char": 1135, "source": "regex", "metadata": {"linked_statute_text": "the Madras Agriculturists Relief Act, 1938", "statute": "the Madras Agriculturists Relief Act, 1938"}}, {"text": "s. 4(e)", "label": "PROVISION", "start_char": 1247, "end_char": 1254, "source": "regex", "metadata": {"linked_statute_text": "the Madras Agriculturists Relief Act, 1938", "statute": "the Madras Agriculturists Relief Act, 1938"}}, {"text": "Life Insurance Corporation Act", "label": "STATUTE", "start_char": 1331, "end_char": 1361, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 9(1)", "label": "PROVISION", "start_char": 1697, "end_char": 1709, "source": "regex", "metadata": {"linked_statute_text": "the Madras Agriculturists Relief Act, 1938", "statute": "the Madras Agriculturists Relief Act, 1938"}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 1717, "end_char": 1753, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 1965, "end_char": 1972, "source": "regex", "metadata": {"linked_statute_text": "the Life Insurance Corporation Act, 1956", "statute": "the Life Insurance Corporation Act, 1956"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 2090, "end_char": 2099, "source": "regex", "metadata": {"linked_statute_text": "the Life Insurance Corporation Act, 1956", "statute": "the Life Insurance Corporation Act, 1956"}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 2240, "end_char": 2247, "source": "regex", "metadata": {"linked_statute_text": "the Life Insurance Corporation Act, 1956", "statute": "the Life Insurance Corporation Act, 1956"}}, {"text": "September 1, 1956", "label": "DATE", "start_char": 2555, "end_char": 2572, "source": "ner", "metadata": {"in_sentence": "The debl'i due to the insurers in these two cases were liable to be scaled down in accordance \\vith the provisions of the 1938Act which was a liability or obligation appertaining to the debts on the appointed day, that is, September 1, 1956."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2739, "end_char": 2743, "source": "regex", "metadata": {"linked_statute_text": "the Life Insurance Corporation Act, 1956", "statute": "the Life Insurance Corporation Act, 1956"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2890, "end_char": 2918, "source": "ner", "metadata": {"in_sentence": "685 G; 686 Al\n\nCIVIL APPELLATE JURISDICTION : c. A. Noo."}}, {"text": "A. K. Somnath Iyer", "label": "LAWYER", "start_char": 3121, "end_char": 3139, "source": "ner", "metadata": {"in_sentence": "A. K. Somnath Iyer, K. L. Hat/ii, P. C. Kapoor, for the appellant\n\nin both the appeals."}}, {"text": "K. L. Hat", "label": "LAWYER", "start_char": 3141, "end_char": 3150, "source": "ner", "metadata": {"in_sentence": "A. K. Somnath Iyer, K. L. Hat/ii, P. C. Kapoor, for the appellant\n\nin both the appeals."}}, {"text": "P. C. Kapoor", "label": "LAWYER", "start_char": 3155, "end_char": 3167, "source": "ner", "metadata": {"in_sentence": "A. K. Somnath Iyer, K. L. Hat/ii, P. C. Kapoor, for the appellant\n\nin both the appeals."}}, {"text": "G. Vmkatnrama Sastrr", "label": "LAWYER", "start_char": 3210, "end_char": 3230, "source": "ner", "metadata": {"in_sentence": "G. Vmkatnrama Sastrr, B. Partlwsarthi."}}, {"text": "B. Partlwsarthi", "label": "LAWYER", "start_char": 3232, "end_char": 3247, "source": "ner", "metadata": {"in_sentence": "G. Vmkatnrama Sastrr, B. Partlwsarthi."}}, {"text": "A. Subba Rao", "label": "LAWYER", "start_char": 3286, "end_char": 3298, "source": "ner", "metadata": {"in_sentence": "A •\n\nA. Subba Rao, for respondents in CA 1969/70."}}, {"text": "Life Insurance Corporation of India", "label": "ORG", "start_char": 3433, "end_char": 3468, "source": "ner", "metadata": {"in_sentence": "J .-Thse are two appeals by the Life Insurance Corporation of India (hereinafter referred to as the Corporation) with special leave obtained from this Court against a common Judgment of the Andhra Pradesh High Court disposing of two appeals preferred by the Corporation."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 3591, "end_char": 3616, "source": "ner", "metadata": {"in_sentence": "J .-Thse are two appeals by the Life Insurance Corporation of India (hereinafter referred to as the Corporation) with special leave obtained from this Court against a common Judgment of the Andhra Pradesh High Court disposing of two appeals preferred by the Corporation."}}, {"text": "Andhra Insurance Company ot Masulipatnam", "label": "ORG", "start_char": 4116, "end_char": 4156, "source": "ner", "metadata": {"in_sentence": "17,000/-, after giving credit to the payments made by the defendants, due on a mqrtgage executed by the defendants in 1950 in favour of the Andhra Insurance Company ot Masulipatnam."}}, {"text": "Nr Pioneer Insurance Company Ltd., Bombay", "label": "ORG", "start_char": 4325, "end_char": 4366, "source": "ner", "metadata": {"in_sentence": "45,555/- also due on a mortgage which was executed in 1952 by the defendants of this suit in favour of the Nr Pioneer Insurance Company Ltd., Bombay."}}, {"text": "September l, 19~6 under", "label": "DATE", "start_char": 4459, "end_char": 4482, "source": "ner", "metadata": {"in_sentence": "Thus in both cases the loans were incurred long before the Corporation was established on September l, 19~6 under the Life Insurance Corporation Act, 1956."}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 4487, "end_char": 4523, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madras Act IV of 1938", "label": "STATUTE", "start_char": 4675, "end_char": 4696, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 5032, "end_char": 5041, "source": "regex", "metadata": {"linked_statute_text": "Madras Act IV of 1938", "statute": "Madras Act IV of 1938"}}, {"text": "Societies Act, 1932", "label": "STATUTE", "start_char": 5387, "end_char": 5406, "source": "regex", "metadata": {}}, {"text": "section 4(e)", "label": "PROVISION", "start_char": 5734, "end_char": 5746, "source": "regex", "metadata": {"linked_statute_text": "Societies Act, 1932", "statute": "Societies Act, 1932"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 5761, "end_char": 5770, "source": "regex", "metadata": {"linked_statute_text": "Societies Act, 1932", "statute": "Societies Act, 1932"}}, {"text": "Corporatmn Act 1956", "label": "STATUTE", "start_char": 6025, "end_char": 6044, "source": "regex", "metadata": {}}, {"text": "section 4(e)", "label": "PROVISION", "start_char": 6080, "end_char": 6092, "source": "regex", "metadata": {"linked_statute_text": "Corporatmn Act 1956", "statute": "Corporatmn Act 1956"}}, {"text": "section 4(e)", "label": "PROVISION", "start_char": 6575, "end_char": 6587, "source": "regex", "metadata": {"linked_statute_text": "Corporatmn Act 1956", "statute": "Corporatmn Act 1956"}}, {"text": "Life Insurance Corporation Act, 1956", "label": "STATUTE", "start_char": 6700, "end_char": 6736, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 6816, "end_char": 6821, "source": "ner", "metadata": {"in_sentence": "It is an Act \"to provide for the nationalisation of life insuran~ business in India by transferring\n\nall such business to a corporation established for the purpose and to provide for the regulation and control of the business of the corporation and for matters connected therewith or incidental thereto\"."}}, {"text": "section 7", "label": "PROVISION", "start_char": 7064, "end_char": 7073, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act, 1956", "statute": "Life Insurance Corporation Act, 1956"}}, {"text": "section 2(1)", "label": "PROVISION", "start_char": 7303, "end_char": 7315, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act, 1956", "statute": "Life Insurance Corporation Act, 1956"}}, {"text": "September 1, 1950", "label": "DATE", "start_char": 7378, "end_char": 7395, "source": "ner", "metadata": {"in_sentence": "Appointed day' has been defined in section 2(1) as the date on which the corporation is established, which is September 1, 1950 ."}}, {"text": "section 7", "label": "PROVISION", "start_char": 7418, "end_char": 7427, "source": "regex", "metadata": {"linked_statute_text": "Life Insurance Corporation Act, 1956", "statute": "Life Insurance Corporation Act, 1956"}}, {"text": "Somnath Iyer", "label": "OTHER_PERSON", "start_char": 8725, "end_char": 8737, "source": "ner", "metadata": {"in_sentence": "Mr. Somnath Iyer appearing for the appellants in both the appeals contends that sub-section ( 1) of section 9 creates a legal fiction that the contracts or instruments to which the insurer was a party shall be deemed to have been entered into or issued in favour of the corporation."}}, {"text": "section 9", "label": "PROVISION", "start_char": 8821, "end_char": 8830, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(e)", "label": "PROVISION", "start_char": 9201, "end_char": 9213, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 9277, "end_char": 9286, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 9554, "end_char": 9563, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 9725, "end_char": 9734, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 9898, "end_char": 9907, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 10406, "end_char": 10415, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_687_691_EN", "year": 1977, "text": "P. CHITHARANJA MENON & ORS.\n\nA. BALAKRISHNAN & ORS\n\nApril 25, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM JJJ\n\n(i8 7\n\nService n1atter-Pron1otions 1nade in J 962--1¥rit pctitiu11s filed in 1972-Jf could be entertained.\n\nOn May 15, 1961 the State Government passed orders (Ex. Pl) that all Panchayat Officers functioning under the Travancore Cochin Panchayats Act, 1950 and Panchayat Executive Officers functioning under the Madras Vilhi.ge Panchayats Act, 1951 as on December 31, 1961 who con.tinue to hold their appointments \\Vhen the Kerala Panchayat Act, 1960 came into force would be C absorbed as Panchayat Executive Officers under the new Panchayats. The order also provided that the stalf of the Malabar District Board shall be absorbed as Pancbayat Executive Officers in suitable grades.\n\nOn the recommendation of the State Public Service Commission the State Government appointed 17 Panchayat Officers in a higher grade by an order dated December 28, 1961 (Ex. P8) and the officer joined their posts between December 30, 1961 and January 2, 1962. To fill up the resulting vacancies 17 of this Panchayat Executive Officers who were in Grade II (respondents 3 to 18) D were appointed. The appel1ants were appointed as Executive Officers on the Grade I, as and from January l, 1962.\n\nThe respondents' representation to the Government that they Should be appointed with effect from December 28, 1961, that is, the date on which the Public Service Commission communicated their appointment was rejected by the State Government (Ex. PIO) on the ground that the vacancies arose only on the\n\n1!a; a~~ l~6a.:nrt; t cfu~;:hit!~~1l; ~ce~r b~O~~i~ a~~~~~~ wi~ E the vacancies. In a petition under Art. 226 of the Constitution the High Court directed that fresh lists be prepared.\n\nAllowing the appeal,\n\nHEI.D : The respondents are not entitled to the reliefs prayed for by them in the writ petitions. [691 Fl\n\nThe appellants were promoted to a higher post before the respondents were F integrated into the Government service on January l, 1962. Throughout the appellants have been treated as occupying a higher post and respondents' much lower post. Though the promoion of the appellants was before January 1, 1962 and was confirmed by vanous orders of the Government the respondents did not choose to challenge the orders till 1972. [689 G]\n\nThere is no ground fo: challenging Ex. PIO order. It refers to the G.O. of February 13, 1962 by which 16 respondents in the writ petition were promoted as Executive Officers Grade I on the adYice of the State Public Service Commis- G sion. Their promotion having been ordered on February 13, 1962 without chaUenging that order a subsequent order which determined the date' of their conuilencement of service cannot be challenged.\n\n[689 E-FJ\n\nThere is no merit in the respondents' contention that if the vacancies in which the appellants and other Panchayat Executive Officers were absorbed arose after January J, 1962 the _respondents would be entitled to be integrated along with the Panchayat Executive Officers and since they were drawing the H sam~ pay they ought to have been given an equal ranking. The apoointrnents of_ the appellants and other Panchayat Executive Officers were made before D_ecember 31, 1961 and as the integration was to take effect from January 1,\n\n~ \"\" .... 1962 they. cannot have any grievance.\n\nFurther, the respondents were not equatt:d with the appellants . and other Panchayat Executive Officers when they were integrated from the Distnct Board Service.\n\n[690 F-G]\n\nCivIL APPELLATE JURISDICTION : C. A. No. 1547 Of 1975.\n\n(Appeal by Special Leave from the Judgment and Order dated the 24-1-1974 of the Kerala High Court in O.P. No. 5566/72).\n\nY. S. Chitale, A. S. Nambiar, for the appellant.\n\nK. T. Harindranath, K. R. Nambiar, for respondents Nos. 1, 3 and 4.\n\nT. S. Krishnamoorthy Iyer, N. Sudhakaran, for respondents Nos. 5 & 6.\n\nC The Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal is by special leave granted by this Court against the judgment of the High Court of Kerala in 0.P. No. 5566 of 1972 by respondents 4 to 8 and 13 before the High Court.\n\nThe respondents herein filed the writ petition for the issue of the Writ of Certiorari calling for records relating to Ex. P-10, GO Kt.\n\nNo. 3386/69/DD dated 23rd October, 1969, Ex. P!2 and Ex. Pl5 and quash the same and to issue a writ of mandamus directing the respondents 1 and 2 who are the State of Kerala represented by the Chief Secretary, Government of Kerala, and the Director of Panchayats to forbear the implementation of Ex. P12 and further direct them to implement Ex. P-8 grading-3 list or in the alternative to issue a writ of mandamus directing the State of Kerala to consider and dispose of Ex. Pl3 and similar representations by respondents 3 and 4 on merits.\n\nIt was also prayed that a writ of certiorari quashing bx.\n\nPl 7 in so far as it related to the petitioners and reseondents 3 to 18 in the writ petition be issued and also to issue a writ of mandamus compelling the respondents 1 and 2, State of Kerala and the Director of Panchayats, to assign the writ petitioners the appropriate ranJ>s in the cadre of Executive Officers in the Panchayat Services. The High Court allowed the writ petition and set aside the list Ex. P 17, the order Ex. Pl2 and the order Ex. PIS dismissing the appeal petition Ex. 1'14 and directed that a fresh list be prepared in accordance with tho principles laid down in Ex. P16 in the light of the judgment of the High Court.\n\nAggrieved by the decision of the High Court the appellants have preferred this appeal.\n\nThe writ petition was contested by 18 respondents.\n\nRespondents 3 to 10 were Panchayat executive officers of the Malabar area functioning under the Madras Village Panchayat Act, 1951, on 3Ist December, 1961. Respondents 11 to 18 were Panchayat Officers functioning as such on 31st December, 1961 under the Travancore-\n\nCochin Panchayats Act, 1950.\n\nThe Kerala Panchayats Act, 1960, Act 32 of 1960 received the assent of the Governor on 8th December,\n\n1960 and was published in Kerala Gazette Extraordinary No. 119 dated 9th December, 1960. It is common ground that the respondents became Government servants on and from 1st January, 1962.\n\n--\"\n\nOn 15th May, 1961, under Ex. Pl the Government passed an order that a;! Panchayat Officers/ executive officers who continue to hold their appointments at the time when the Act came into force will be absorbed as Panchayat executive officers in the new Panchayats.\n\nThe rome order provided that the staff of the Malabar District Board shall be absorbed as Panchayat executive officers in suitable grades according to their qualifications, grades and suitability.\n\nIn December, 1961, 17 Panchayat officers were to be appointed R on a scale of pay higher than the scale applicable to the Panchayat executive officers.\n\nThe Public Service Commission selected 17 Panchayat executive officers who were on the scale of pay Rs. 80-IJO\n\nand drew up a list on 27th December, 1961. They were appointed as Panchayat Inspectors under Ex. P8 on 28th December, 1961.\n\nTo fill up these vacancies 17 of th~ Panchayat executive officers who were in Grade II on the scale of pay Rs. 40-120, the respondents 3 to rn C were appointed.\n\nThe 5 appellants before us were appointed as executive officers on the grade I Rs. 80-150 as and from I st January, I 962.\n\nThe respondents who were the petitioners in the writ petition were integrated in the service.\n\nThe Government passed orders laying down the principles of integration of the District Board employees and the J>anchayat executive oftlcers and Panchayat Officers.\n\nThe impugned D orders under the writ petition are Ex. PlO, Ex. Pl2 and Ex.\n\nPl 5.\n\nIt is also prayed that Ex. Pl 7 may be quashed.\n\nThe Government in Ex. PlO came to the conclusion that the vacancies on the advice ol the Public Service Commission and the appointment of those that had been advised on 28th December, 1961\" arose only on the dates enumerated in the order Ex. PIO commencing from 30th December, J 961, and ending with 2nd January, l 962 and that the appointment E can only be on occurrence of the vacancies. We do not sec on what basis Ex. PlO could be challenged.\n\nEx. PIO refers to\n\nG. 0.\n\nMS No. 93/62 dated 13th February, 1962. By the G.O. of 1962, 16 respondents in the writ petition were promoted as executive otlicers Grade I on the advice of the Public Service Commission.\n\nThe promotion of the respondents in the writ petition having been ordered as early as 13th February, 1962, without challenging that order a subse- F quent order which detennined the date of their commencement of service carrnot be challenged. In fact, the respondents were appointed to the higher posts on 28th December, 1961, and they took charge on 30th December, 1961, 31st December, 1961, 1st January, 1962 amt 2nd January, 1962.\n\nThe respondents in this petition were integrated into the service only on 1st January, 1962. Their position in the service was to be determined by the Government later. If the respon- G denm were aggrieved at the posting to the higher post of the present appellants and others they ought to have even challenged promotion which was made on 1st January, 1962.\n\nNot having questioned the legality of the promotion or the G. 0. of 1962 it is too late for them to question the validity of the G.O. of 1969 filing a writ petition in the year 1972.\n\nApart from this insurmountable objection even on merits the respondents have no claim. The Government passed Ex. Rl dated 31st January, 1965, laying down the principles of integration of the District\n\nBoard employees and the Panchayat executing oftkers and Panchayat Officers.\n\nIt provided that the integration must be based on functional parity.\n\nEx. P12 is a G. 0. dated 5th May, 1970. The G. O. refers to the earlier G. Os dated 13th February, 1962, and 24th June, 1969, and states that the names of the 17 executive officers the appellants and others, are given rank under executive officers Grde I as on 6th January, 19_62.\n\nThe grada_tion list is P-17 dated 22nd July, 1972.\n\nAfter refernng to the earlier G. Os the Director of Panchayals approved a final gradation list of Executive Officers of Panchayats as on 6th January, 1962.\n\nThe appellants are ranked as 58, 59, 60, 61, 62 etc.\n\nThe respondents made representations against Ex. Pl2 but these representations were not accepted and a list Ex. P8 was drawn up.\n\nThe respondents again objected to the list and subsequently Ex. P12 was prepared. Objections (P14) were raised to Ex. P12 but they were rejected by order Ex. P15 and final list Ex. Pl 7 was published in accordance with the suggestions made in Ex. Pl2.\n\nThe contention on behalf of the respondents is that the order under Ex. P12 is against the position taken by the Govermnent in Ex. l'lU and PlO(a) and the Director had no authority to prepare a list Ill contravention of Bxs. PIO and PlO(a). Ex. Pl2 was challenged on the ground that it is not in accordance with Ex. P-16 which settled the principles to govern the integration. It was therefore submitted that Ex. P12 and Pl 7 must be quashed.\n\nStrong reliance Was placed on the order of the Government dated 15th May, 1961, which while it provided that Panchayat Officers Executive Officers who .continue to hold their appointments at the time when the Act comes into force will be absorbed as Panchayat Executive Officers . in the new Panchayats, secured the right of the staff of the District Board by providing that the staff of the Malabar District Board shall be absorbed as Panchayat Executive Officers in suitable Grades according to their qualifications,\n\ngradend suitability.\n\nOn the basis of the principle of integration above cited it was submitted that if the vacancies in which the appellants and other Panchayat Executive Officers were absorbed arose after 1st January, 1962, the respondents would be entitled to be integrated along with the Panchayat Executive Officers and as they were drawing the same pay they ought to have been given an equal ranking.\n\nWe have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim.\n\nThe appointments of the appellants and other Panchayat Executive Officers were made before 31st December, 1961, and as the integration was to take effect from 1st January, 1962, they cannot have any grievance.\n\nFurther, it will be seen from G.O. MS.97 /67 /A & RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U. IJ.\n\nClerks will be equated to the posts of Panchayat Executive Officers, 2nd Grade, 21 Lower Division Clerks and 8 Revenue Inspectors and 4 clerical attenders will be equated to the posts of the Panchayat Executive Officers 3rd grade. It is stated that responde1; Jts 1 to 4 come under this category and are only 3rd Grade Execuuve Officers.\n\nLt will thus be seen that the respondents were not equated with the appellants and other ?a1:1chayat Execuive Officers when tht?' were integrated from the District Board service.\n\n_ The persons similarly situated as the respondents herein who were rntegrated from the District Board services filed writ petitions before the. High Cort.impleading the present appellants challenging the gra- <lallon and fa!lcdin their attempt.\n\nThe earliest petition is in O.P. No. 1431 of 1970.\n\nJustice Isaac who heard the petition observed that the petitioners catne in the integrated service as 3rd Grade Executive Officers and were promoted to 2nd Grade with effect i'rom 6th\n\nFebruary, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February, I 962,\n\nas 1st grade officers.\n\nThe learned Judge further observed, . \"Even ignoring this, respondents 3 to I 0 were I Grade Executive Officers from 16-2-1962, while the Petitioner has become even JI Grade Executive Offic'r only with effect from 6-2-1966.\" As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, I YTL.\n\nAnother writ petition No. O.P. No. 6423 filed by one of the persons integrated from the District Board Services, against tho present appellants and others was also dismissed by Justice Isaac on 27th June, 1973.\n\nA writ appeal filed against the order of Justice Isaac ill O. l'.\n\nNo. 1431 of 1970 was summarily dismissed by the Bench of the Kera!a High Court.\n\nWhile the earlier judgment.s were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view.\n\nThe decision under appeal proceeds on the basis that a regrettable mistake crept into the judgment in 0. P. No. 1431 ol 1970 and the earlier decision proceeded on the basis that there was a III Grade mentioned in G. 0. 814 dated 17th November, 1962, The High Court was of the view that there was a III Grade under the U.O above referred to the earlier decision missed the fact that these Grades were not applicable on !st January, 1962. Though G.O. 814 of 1962 was not placed before us we arc not sure whether there was any mistake in the earlier judgment for the G.O. MS 97 /67 dated l&th March, 1967, refers to persons being l!\"ansferred from the Malabar D1stnct Board as Panchayat Executive Officers III Grade.\n\nBe that as it may we are satisfied that the respondents arc not entitled to the reltefs prayed for by them in the writ petitions.\n\nAs the appellants were promoted to a higher post before the respondents were integrated into the Government service on 1st January, 1962.\n\nFurther throughout the appellants have been treated as occupying a higher post and respondents much lower post.\n\nThough the promotion of the appellants was before 1st January, 1962, and was confirmed by various orders of the G Government the respondents herein did not choose to challenge the orders till the year, 1974.\n\nIn the circumstances, we are satisfied tht the order of the Kerala High Court has to be set aside and the appeal is\n\nallowed with costs.\n\nP.B.R.\n\nAppeal allowed.\n\n5-707SCI/77", "total_entities": 48, "entities": [{"text": "P. CHITHARANJA MENON & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "P. CHITHARANJA MENON & ORS", "offset_not_found": false}}, {"text": "A. BALAKRISHNAN & ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "A. BALAKRISHNAN & ORS", "offset_not_found": false}}, {"text": "April 25, 1977", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "A. BALAKRISHNAN & ORS\n\nApril 25, 1977\n\n[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM JJJ\n\n(i8 7\n\nService n1atter-Pron1otions 1nade in J 962--1¥rit pctitiu11s filed in 1972-Jf could be entertained."}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 86, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "P. S. KAILASAM", "label": "JUDGE", "start_char": 102, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "May 15, 1961", "label": "DATE", "start_char": 233, "end_char": 245, "source": "ner", "metadata": {"in_sentence": "On May 15, 1961 the State Government passed orders (Ex."}}, {"text": "Panchayat Officers functioning under the Travancore Cochin Panchayats Act, 1950", "label": "STATUTE", "start_char": 299, "end_char": 378, "source": "regex", "metadata": {}}, {"text": "Panchayats Act, 1951", "label": "STATUTE", "start_char": 450, "end_char": 470, "source": "regex", "metadata": {}}, {"text": "Vhen the Kerala Panchayat Act, 1960", "label": "STATUTE", "start_char": 537, "end_char": 572, "source": "regex", "metadata": {}}, {"text": "Malabar District Board", "label": "ORG", "start_char": 713, "end_char": 735, "source": "ner", "metadata": {"in_sentence": "The order also provided that the stalf of the Malabar District Board shall be absorbed as Pancbayat Executive Officers in suitable grades."}}, {"text": "December 28, 1961", "label": "DATE", "start_char": 957, "end_char": 974, "source": "ner", "metadata": {"in_sentence": "On the recommendation of the State Public Service Commission the State Government appointed 17 Panchayat Officers in a higher grade by an order dated December 28, 1961 (Ex."}}, {"text": "December 30, 1961", "label": "DATE", "start_char": 1027, "end_char": 1044, "source": "ner", "metadata": {"in_sentence": "P8) and the officer joined their posts between December 30, 1961 and January 2, 1962."}}, {"text": "January 2, 1962", "label": "DATE", "start_char": 1049, "end_char": 1064, "source": "ner", "metadata": {"in_sentence": "P8) and the officer joined their posts between December 30, 1961 and January 2, 1962."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1704, "end_char": 1712, "source": "regex", "metadata": {"statute": null}}, {"text": "February 13, 1962", "label": "DATE", "start_char": 2629, "end_char": 2646, "source": "ner", "metadata": {"in_sentence": "Their promotion having been ordered on February 13, 1962 without chaUenging that order a subsequent order which determined the date' of their conuilencement of service cannot be challenged."}}, {"text": "January 1,\n\n~ \"\" .... 1962", "label": "DATE", "start_char": 3314, "end_char": 3340, "source": "ner", "metadata": {"in_sentence": "The apoointrnents of the appellants and other Panchayat Executive Officers were made before D_ecember 31, 1961 and as the integration was to take effect from January 1,\n\n~ \"\" .... 1962 they."}}, {"text": "Y. S. Chitale", "label": "LAWYER", "start_char": 3726, "end_char": 3739, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale, A. S. Nambiar, for the appellant."}}, {"text": "A. S. Nambiar", "label": "LAWYER", "start_char": 3741, "end_char": 3754, "source": "ner", "metadata": {"in_sentence": "Y. S. Chitale, A. S. Nambiar, for the appellant."}}, {"text": "K. T. Harindranath", "label": "LAWYER", "start_char": 3776, "end_char": 3794, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, K. R. Nambiar, for respondents Nos."}}, {"text": "K. R. Nambiar", "label": "LAWYER", "start_char": 3796, "end_char": 3809, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath, K. R. Nambiar, for respondents Nos."}}, {"text": "T. S. Krishnamoorthy Iyer", "label": "LAWYER", "start_char": 3845, "end_char": 3870, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer, N. Sudhakaran, for respondents Nos."}}, {"text": "N. Sudhakaran", "label": "LAWYER", "start_char": 3872, "end_char": 3885, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer, N. Sudhakaran, for respondents Nos."}}, {"text": "KAILASAM", "label": "JUDGE", "start_char": 3962, "end_char": 3970, "source": "ner", "metadata": {"in_sentence": "C The Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal is by special leave granted by this Court against the judgment of the High Court of Kerala in 0.P. No."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 4057, "end_char": 4077, "source": "ner", "metadata": {"in_sentence": "C The Judgment of the Court was delivered by\n\nKAILASAM, J.-This appeal is by special leave granted by this Court against the judgment of the High Court of Kerala in 0.P. No."}}, {"text": "State of Kerala", "label": "RESPONDENT", "start_char": 5070, "end_char": 5085, "source": "ner", "metadata": {"in_sentence": "Pl 7 in so far as it related to the petitioners and reseondents 3 to 18 in the writ petition be issued and also to issue a writ of mandamus compelling the respondents 1 and 2, State of Kerala and the Director of Panchayats, to assign the writ petitioners the appropriate ranJ>s in the cadre of Executive Officers in the Panchayat Services."}}, {"text": "Cochin Panchayats Act, 1950", "label": "STATUTE", "start_char": 5942, "end_char": 5969, "source": "regex", "metadata": {}}, {"text": "Kerala Panchayats Act, 1960", "label": "STATUTE", "start_char": 5976, "end_char": 6003, "source": "regex", "metadata": {}}, {"text": "8th December,\n\n1960", "label": "DATE", "start_char": 6059, "end_char": 6078, "source": "ner", "metadata": {"in_sentence": "The Kerala Panchayats Act, 1960, Act 32 of 1960 received the assent of the Governor on 8th December,\n\n1960 and was published in Kerala Gazette Extraordinary No."}}, {"text": "1st January, 1962", "label": "DATE", "start_char": 6243, "end_char": 6260, "source": "ner", "metadata": {"in_sentence": "It is common ground that the respondents became Government servants on and from 1st January, 1962."}}, {"text": "15th May, 1961", "label": "DATE", "start_char": 6271, "end_char": 6285, "source": "ner", "metadata": {"in_sentence": "\"\n\nOn 15th May, 1961, under Ex."}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 6888, "end_char": 6913, "source": "ner", "metadata": {"in_sentence": "The Public Service Commission selected 17 Panchayat executive officers who were on the scale of pay Rs."}}, {"text": "27th December, 1961", "label": "DATE", "start_char": 7018, "end_char": 7037, "source": "ner", "metadata": {"in_sentence": "80-IJO\n\nand drew up a list on 27th December, 1961."}}, {"text": "28th December, 1961", "label": "DATE", "start_char": 7099, "end_char": 7118, "source": "ner", "metadata": {"in_sentence": "P8 on 28th December, 1961."}}, {"text": "30th December, 1961, 31st December, 1961, 1st January, 1962", "label": "DATE", "start_char": 8815, "end_char": 8874, "source": "ner", "metadata": {"in_sentence": "In fact, the respondents were appointed to the higher posts on 28th December, 1961, and they took charge on 30th December, 1961, 31st December, 1961, 1st January, 1962 amt 2nd January, 1962."}}, {"text": "2nd January, 1962", "label": "DATE", "start_char": 8879, "end_char": 8896, "source": "ner", "metadata": {"in_sentence": "In fact, the respondents were appointed to the higher posts on 28th December, 1961, and they took charge on 30th December, 1961, 31st December, 1961, 1st January, 1962 amt 2nd January, 1962."}}, {"text": "6th January, 19_62.", "label": "DATE", "start_char": 10052, "end_char": 10071, "source": "ner", "metadata": {"in_sentence": "The G. O. refers to the earlier G. Os dated 13th February, 1962, and 24th June, 1969, and states that the names of the 17 executive officers the appellants and others, are given rank under executive officers Grde I as on 6th January, 19_62."}}, {"text": "22nd July, 1972", "label": "DATE", "start_char": 10107, "end_char": 10122, "source": "ner", "metadata": {"in_sentence": "The grada_tion list is P-17 dated 22nd July, 1972."}}, {"text": "6th January, 1962", "label": "DATE", "start_char": 10262, "end_char": 10279, "source": "ner", "metadata": {"in_sentence": "After refernng to the earlier G. Os the Director of Panchayals approved a final gradation list of Executive Officers of Panchayats as on 6th January, 1962."}}, {"text": "31st December, 1961", "label": "DATE", "start_char": 12160, "end_char": 12179, "source": "ner", "metadata": {"in_sentence": "We have already pointed out that these appointments were made before 31st December, 1961, and as such the respondents cannot have any claim."}}, {"text": "18th March, 1967", "label": "DATE", "start_char": 12504, "end_char": 12520, "source": "ner", "metadata": {"in_sentence": "Further, it will be seen from G.O. MS.97 /67 /A & RDD dated 18th March, 1967, which refers to absorption of various categories of staff of the defunct Malabar District Board in the Department of Local Bodies, it is stated in Paragraph 3 that while 9 U. IJ."}}, {"text": "Isaac", "label": "JUDGE", "start_char": 13528, "end_char": 13533, "source": "ner", "metadata": {"in_sentence": "Justice Isaac who heard the petition observed that the petitioners catne in the integrated service as 3rd Grade Executive Officers and were promoted to 2nd Grade with effect i'rom 6th\n\nFebruary, 1968, while respondents 3 to 10 (some of whom are appellants before us) have been promoted as early as 16th February, I 962,\n\nas 1st grade officers."}}, {"text": "1st February, 1962", "label": "DATE", "start_char": 14212, "end_char": 14230, "source": "ner", "metadata": {"in_sentence": "As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, I YTL."}}, {"text": "24th May, I YTL", "label": "DATE", "start_char": 14296, "end_char": 14311, "source": "ner", "metadata": {"in_sentence": "As the petitioner before the learned Judge was holding a post much inferior to the posts held by respondents 3 to 10 from 1st February, 1962, onwards, he dismissed the petition being devoid of any merit on 24th May, I YTL."}}, {"text": "27th June, 1973", "label": "DATE", "start_char": 14508, "end_char": 14523, "source": "ner", "metadata": {"in_sentence": "6423 filed by one of the persons integrated from the District Board Services, against tho present appellants and others was also dismissed by Justice Isaac on 27th June, 1973."}}, {"text": "Kera!a High Court", "label": "COURT", "start_char": 14654, "end_char": 14671, "source": "ner", "metadata": {"in_sentence": "1431 of 1970 was summarily dismissed by the Bench of the Kera!a High Court."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 14749, "end_char": 14766, "source": "ner", "metadata": {"in_sentence": "While the earlier judgment.s were all decided against the respondents, the Kerala High Court in the judgment under appeal took a different view."}}, {"text": "Malabar D1stnct Board", "label": "ORG", "start_char": 15469, "end_char": 15490, "source": "ner", "metadata": {"in_sentence": "Though G.O. 814 of 1962 was not placed before us we arc not sure whether there was any mistake in the earlier judgment for the G.O. MS 97 /67 dated l&th March, 1967, refers to persons being l!\"ansferred from the Malabar D1stnct Board as Panchayat Executive Officers III Grade."}}]}
{"document_id": "1977_3_68_74_EN", "year": 1977, "text": "RAJENDRA PRASAD\n\nSTATE OF BIHAR\n\nFebruary 25, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAI.. JJ.J\n\nCrin1i11a! J!rocedure.. Code 1898-Powers of Hi/h Court to set aside ocq11ittal -Whetl!er n:1al Cf!Ul'l 111dgn1e11t should be palpably 1\\'rong-Credibility of witness -Test 1dent1ficat1011 parade-Delay in.\n\nF.l.R.-Ahsence to na111e acc11sed-/j co1n•ictio11 ca11 be bnsed 011 sole testi~ 111011y of a witness.\n\nP. W. 9 Sabir aged about 18 year \\Vent to the house of Lala (deceased) \\vho used to render physicril training and swin1ming lessons to young boys and requested Lala to accon1pany hirn to the b<ink of a river. \\\\'hen Lala was cleaning his teeth and washing his fncc the appellant \\\\Cnt there \\Vith 4 or 5 rersons. The prosecution case is thrit those 4 or 5 persons engngcd Lala in talk and the appellant thn1t a dagger on the back of Lala who died within minutes after the assault. 20 to 25 persons who were there and P.\\V. 9 and others ran behind the appellant.\n\nThe prosecution exan1inccl 13 witnesses out of \\Vhieh 4 'vere cyc-\\vitnesses, na1nely, P.W. 1. 4. 9 and 10.\n\nThe Sessions Judge disbelieved all the eye V11itnesscs, and acquitted the appellant.\n\nThe Sessions Judge while <icquitting the :ippellant took the fol'Jo\\ving facts into consideration :-\n\n( 1)\n\n(2)\n\n(3)\n\n( 4)\n\nP.\\V. 4 who lodged the First Tnforn1ation Report did not na1ne any\n\n<iccuscd and, in f<ict. he did not know the <1ccused before the occurrence nnd could not even identify hin1 at the test identification parnde.\n\nV. \\Vs 1 nnd 10 had opportunity to see the accused before and therefore the test identification parade could not be attached much significance.\n\nP. \\Vs 1 nnd 2 are supposed to hnve seen the accused at the time when he was running a\\vay fron1 the place of occurrence and, therefore, it \\V!!S highly , improbable that they V11ould be able to retain 1he i1nprcssion of the accused.\n\nIt is highly improbable that P.\\V. 9 hnd seen the incidC'nt since he did not go to the Police Station nor even s!ayed at the place of occurrence till the arrival of the police.\n\nOn the other hand. he confined hi1nself in his house until a constable came to take him to the police station.\n\nThe police in the beginning Sll\"octed him as one of the persons who participCJtcd in the nnirder of the deceased.\n\nHis conduct is very sllspicious.\n\nThe I-ligh Court in appeal by the State relied on the evidence of P.\\V. ns being corroborated by P. Vls. l and 10.\n\nThe 1-Tigh Court thrrefore, set aside the ncquittal and convicted the accused under s. 302 l.P.C. rind sentenced him to rigorous in1prison1ncnt for life.\n\nAllovvinothe appeal under s. 2(a) of the Supre1ne C:ourt (Enl<irgement of Criminal A'Prc<1l Jurisdiction) Act, 1970.\n\nHELD : (I) When a trial court, with full view of the witnesses. acquits an accused after disbelievng direct. testin1ony it will_ b~ essential for the !Jigh\n\nCourt in nn appeal against ricqu1ttal to clearly 1nd1cate firn1 and weighty grounds fro1n the record for discarding the reasons of the trial ccurt in orer to be able to reach a cont1; ary con_cluio~ of guilt of the ace; used.\n\nThe High court should be able to point ont in 11s JtKlgmcnt that the tnal court re-no; ons\n\n• •\n\nRA.JENDRA PRASAD v. BJllAR (Goswami, J.) 69\n\nare palpably and unerringly shaky and its own reasons arc demonstrably A. cogent.\n\nAs a salutary rule of appreciation of evidence in an appeal against .acquittal it is not legally sufficient that it is just possible for the High Court\n\n10 take a contrary view about the credibility of witnesses but it is absolutely -imperative that the lfigh Court convincingly finds it \\Yell-nigh impossible for the trial court.to reject their testi1nony. l74 A-C]\n\n(2) This is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for .ncquittal of the accused are manifestly erroneous, shocking one's sense of B justice.\n\nThe H.igh Court \\Vas not right in interfering with the acquittal of the accused in this case. r74-Dl\n\n(3) Since the Sessions Cou1t and the High Court reached different con- .clusions from the same evidence this Court \\Vent lhrcugh the entire evidence\n\ncarefully in order to see \\Vhcther the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere \\vith the same. r?OE-F] '\n\nCRIMINAL APPELLATE JumsmcnoN : Criminal Appeal No. 159 of 1974.\n\nI From the Judgment and Order dated 2-1-1974 of the Patna High Court in Govt. Appeal No. 48/68).\n\nS. Shau/wt Hussain, for the appellant.\n\nPramod Swarup, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J. The day, April 4, 1966, broke ominously for Lala 1larhi (deceased) who used to render physirnl training and swimming lessons to young boys. One such boy, Sabir Hanfi (PW 9), aged about\n\n18 years, went to the house of Lala Barbi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur.\n\nLala was then asleep.\n\nSabir Hanfi woke him up and they both went to the Ashram Ghat (known also as Balu Ghat) on the bank of the Gand<:k river.\n\nThere when Lala was cleansing his teeth and washing his face, the appellant Raje11dra Prasad (hereinafter to be described as the accused) came there with four or five persons. ' It is said that the accused had some differences \\Vith Lala over son1e money \\Vhich he had given to him to .assault somebody which Lala failed to accomplish. As his companions were keeping Lala engaged in talk, the accused thrust a dagger on the .back of Lala who then rnlled Sabir Hanfi.\n\nLala. himself a robu\"st ':lOUng rnan) rushed towards the accused \\Vho took to his heels \\Vith l1is companions.\n\nLala fell down rushing forward a space of about forty yards and breathed his last.\n\nSabir Hanfi and others also ran behind Lala to his aid.\n\n, Although thirteen witnesses were examined by the prosecution only four of them were eye-witnesses to the occurrence.\n\nThey are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Laehman Prasad\n\n(PW 10) and Sabir Hanfi (PW 9). The Sessions Judge disbelieved .all the eye-witnesses and acquitted the accused.\n\nOn the other hand H the High Court relied on the evidence of PW 9 as being corroborated by PWs 1 and 10.\n\nThe High Court, therefore, set aside the acquittal\n\nand convicted the accused under section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life.\n\nHence this appeal under section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.\n\nPW 4 who lodged the first information report without naming any accused and who did not know the accused before the occurrence could not even identify him at the Test Identification Parade which was held on September 29, 1966. The evidence of PW 4 is, therefore, of no significance.\n\nThe case, therefore, depended upon the evidence of recognition of the accused while running from the place of occurrence by PWs I, 10 and the direct testimonl'. of PW 9 who knew the accused from before.\n\nThe accused was known only to Sabir Hanfi (PW 9) by name. The other two witnesses did not know the accused from before and saw him only while running away followed by twenty or twentyfive other persons.\n\nThe evidence of PWs 1 and l 0, which we have carefully perused, go tp show that they did not know the accused from before.\n\nThey however, identified the accused in the Test Identification Parade held on September 29, 1966, nearly six months after the occurrence. There is no reason why the Test Parade was delayed so long when the accused had surrendered on June 17, 1966. As stated earlier, the trial court which had opportunity to see these witnesses disbelieved them by giving certain reasons.\n\nFor example, according. to the Sessions Judge, these two witnesses had the opportunity to know the accused from before and, therefore, their identification in the Test Indentification Parade was not considered of such significance.\n\nHe further observed that these witnesses saw the accused at the time when he was running away from the place of occurrence and, therefore, \"it is highly improbable that they would be able to retain the impression of the assailant of Lala Barhi in their mind for so many months\". The High Court, on the other hand, held that identification by PWs 1 and 10 was reliable. Thus when two courts have come to a different conclusion on the same evidence, we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same.\n\nPW 1 is the father of PW 10. His unole died on !lie previous night and both he and li\"is son (PW 10) went for his cremation at Chandwara Ghat.\n\nThe cremation was over at about 6.16 A.M. on the morning of the day of occurrence. They then went to Balu Ghat for a bath.\n\nThey saw Lala Barbi doing physical exercise on the bank of the river and they went to take their bath in the river. After about ten minutes they heard a hulla 'pakro' 'pakro'. On hearing the hulla they came up to the Bank from the river and saw Lala Barhi running away towards the East and four persons were chasing him and raising a hulla 'pakro' 'pakro'.\n\nThey further stated that about twenty or twenty-five persons followed to catch two or three persons who were chasing the Lala. They had come out of the water at that time. PW 10 stated that he could not identify the other companions of Lala because he \"saw their back only and not their face\".\n\nSince both the\n\nRA, JENDRA PRASAD v. BlHAR (Goswami, J,) 71\n\nwitnesses came out of the water on hearing the hulla which was raised only after the assault, it was not possible for these two witnesses to see the stabbjng, Even if they recognised the persons running away, they would not be able to say who, amongst them, had stabbed the dece<Jsed, PW 1 O has candidly admitted that he could not recognise the companions of the deceased as they were running ahead and he was watching from behind. If this be the position with regard to the companions of the deceased it is difficult to see how these two witnesses 'vere able to recognise the accused who was running 3\\\\'ay.\n\nApart from that there were twenty to twentyfive others following the accused with two or three persons thus obstructing a clear view of the accused.\n\nIn this state of evidence it is impossible to hold, on their evidence. that the learned Sessions Judge did not reach a correct conclusion that identification by these two witnesses was futile for the purpose of establishing the charge against the accused.\n\nWe are unable to appreciate how the High Court in this state of evidence could reasonably come to a contrary conolusion with regard to the testimony of these two witnesses.\n\nThis leaves PW 9 for consideration.\n\nAlthough PW 9 knew the assailant by name, th~ is no mention of the accused's name in the first information report lodged the same day at 12.00 noon, five hours after the occurrence, the Thana being only one and a half miles from the place of occurrence.\n\nThe accused is described in the first information report as \"a dark complexioned healthy young man. about the age 'f 24/25 years\", It may be that PW 9 is the only witness who had seen the stabbing. He may be the witness from the beginning of the occurrence till the end and who described the incident in detail.\n\nAccordirg to him while the deceased was cleansing his teeth the accused came near him with four or five persons and that while some of them kept the deceased engaged in some conversation the accused stabbed the deceased on his back with a dagger. The whole case wHI, therefore, rest on the evidence of this witness who knows the accused from before, The Sessions Judge has considered him as unreliable for the following reasons :-\n\n(1) It is highly improbable that if he had seen the he would not have rushed to the police station stayed at the place of occurrence till the arrival police.\n\nincident or even of the\n\n(2) That on the other hand PW 9 confined himself in his house from 4th April till the eyening of the following day G when a constable went to his house to take him to the police station, •\n\n(3) The police at first suspected that he might have a hand in the murder of the deceased and suspected him and kept him in the police lock-up.\n\n( 4) The conduct of the witness is very suspicious and no reliance can be placed on his evidence.\n\n6-240SCI /77\n\nThe High Court has considered the first two grounds as insufficient for holding the witness as unreliable. It observed that \"it is of common knowledge that generally people try to avoid becoming an informant and to be an eye-witness of the occurrence for various reason\".\n\nWith regard to the third and fourth grounds the High Court referred to the station diary entry (Ex. 4) and to the evidence of PW l 2 and held as follows :~\n\n\" ... it was by mistake that PW 9 was arrested by a constable. P.W. 12 has stated that in fact he was a prosecution witness. I do not find any valid reason for discrediting the evidence of P.W. 9\".\n\nFrom the evidence of PW 9 and PW 12 and in the context of the C station diary entry (Ex. 4), the position emerges as follows :-\n\nA police officer went to the house of PW 9 in the evening of April 5, J 966, to bring him to the Thana. He was found by the Officer-incharge of the Thana (PW 12) sitting at the police station at 7.30 P.M.\n\nNow let us read the station diary entry (Ex. 4). Before we quote the same we should state that this exhibit has not been correctlv translated at page 56 of the Paper Book. We, therefore, ourselves examined the original station diary entry and we will set out the same as correctly translated. as under :-\n\n\"XVIII. Entered in Thana Daily S. 186\n\n186. That this time, Shri G. S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd. Sabir Hanfi alias Funna r/o Saraiyaganj Thana Town the accused (Abhiyukta) in connection with S. No. 5(4)66, sec. 302 IPC.\n\nOn search nothing was found on his person except clothes he was wearing. After all the rules of Hajat were observed he was kept in Hajat''.\n\nSome uncertainty was felt by counsel regarding the meaning of the word \"hajat\". We have no doubt that the word \"hajat\" means custody in this context.\n\nBhargava's Standard Illustrated Dictionary, Hindi Language, gives the meaning of Hajat, inter alia, as custody, and states thus : \"Hajat mein rakhna\" means \"to keep a culprit in custody\". ·\n\nThe High Court, we are afraid, does not appear to have examined the original° station diary entry (Ex. 4) with care otherwise it would '), G not have come to the conclusion that it was by mistake that PW 9 was arrested by a constable simply from the self-serving statement of PW ~\n\n12. The High Court does not even refer to the fact that a very important recital in the original entry (Ex. 4), namely. the word , \"abhivukta\" (accused) has been scored out and in its place the word \"gavah\" (witness) was substituted.\n\nThe interpolation of the word \"gavah\" (witnes.) for \"abhiyukta\" (accused) appeared to be of a H different writer from the original writings in the entry. This is serious tampering with an official record in a criminal case when a man's life is in jeopardy in a trial for murder under section 302 !PC. We have also grave suspicion about the date of correction of the entry in Ex. 4 .\n\n'RAJENDRA PRASAD v. BIHAR €Goswami, 1.) 7 3 .\n\nAlthouoh the above entry shows that PW 9 was brought to the Thana by the Town Inspector, G. S. Chaturvedi, he. was not even examined in the case to show why and under what circumstances PW\n\n9 was brought by him. This entr)'. in the official record dearly shws\n\nthat PW 9 was at that stage considered as an accused m connection with this murder case and his person was searched before confmmg him in the Hajat. If he was only a witness there was no .reason why his person would be searched and why he wonld be kept m the lockup \"after all the rules of Hajat were observed''. The High Court\n\ncompletely lost sight of these serious infirmities in the prosecution evidence and it was absolutely impermissible to accept the statement of PW 12 when he stated that PW 9 \"had not been arrested\" and that ·\"he was only a prosecution witness''.\n\nThere are some other disquieting features with regard to the evi- , dence of PW 9. It is not understood why he should have said that a constable brought him to the Thana whereas the entry (Ex. 4) shows that the Town Inspector, Chaturvedi, brought him to the Thana. If, as the entry shows, he was brought by the Town Inspector, Chaturvedi, .and he was kept confined in the lock-up as an accused in the murder case, it is difficult to comprehend how at that very stage Ex. 4 could be considered by PW 12 as containing a wrong recital without reference to the Town Inspector. Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there.\n\nEven then he would not record the statement of PW 9.\n\nHe admitted during the course of crossexamination that when he first interrogated PW 9 at the Thana he had not recorded his statement. He did not even record his statement when he came to the Thana from his house at 11.00 P.M. that night, These are very suspicious circumstances. PW 12, however, admitted that he recorded the statement of PW 9 on the following day (6-4-1966) at 12.05 A.N., after having produced him before the 'Superintendent of Police.\n\nPW 9 admits that he was interrogated by the Superintendent of Police for twenty to twentyfive minutes. PW 12 stated in his examination-in-chief that he allowed PW 9 to go to his house. after he had recorded his statement on April 6, 1966, at 12.05\n\nA.N.\n\nFrom the evidence of PW 12 read with the entry (Ex. 4) it does not appear that PW 9 was freed from police custody at least till his statement was recorded on April 6, 1966.\n\nAgain, the statement of PW 9 was recorded by the Magistrate under section 164, Criminal Procedure Code, on AprH 12, 1966, when perhaps the police had finally decided to treat him as a prosecution witness instead of an accused.\n\nThis conclusion is irresistible on the state of evidence to which we have referred .above. If under these circumstances the Sessions Judge held that the conduct of this witness was such as would seriously affect his credibility, the High Court was not at all justified in taking a contrary view even without a proper analysis of the oral and documentary evidence. When the evidence of recognition of the\n\naccused by PWs 1, 10 and 4 is unreliable, no conviction can be based on the sole testimony of a witness like PW 9, on whom the first suspicion fell, without any corroboration.\n\nWhen a trial court, with full view of the witnesses, acquits an accused after disbeliving direct testimony, it will be essential for the High Court, in an aJJpeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused.\n\nThe High Court should be able to point out in its judgment that the trial court's reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent.\n\nAs a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony.\n\nThis is the quintessence of the jurisprudential aspect of criminal justice.\n\nThis is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for acquittal of the accused are manifestly erroneous, shocking one's sense of justice.\n\nThe High Court was not right in interfering with the acquittal of the accused in this case. The appeal is, therefore, allowed. The judgment of the High Court is set aside.\n\nThe accused shall be released from detention immediately.\n\nP.H.P.\n\nAppeal allowetl.", "total_entities": 51, "entities": [{"text": "RAJENDRA PRASAD", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "Raje11dra Prasad", "offset_not_found": false}}, {"text": "STATE OF BIHAR", "label": "RESPONDENT", "start_char": 17, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "February 25, 1977", "label": "DATE", "start_char": 33, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "RAJENDRA PRASAD\n\nSTATE OF BIHAR\n\nFebruary 25, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAI.. JJ.J\n\nCrin1i11a!"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 53, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 72, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Sabir", "label": "WITNESS", "start_char": 429, "end_char": 434, "source": "ner", "metadata": {"in_sentence": "P. W. 9 Sabir aged about 18 year \\Vent to the house of Lala (deceased) \\vho used to render physicril training and swin1ming lessons to young boys and requested Lala to accon1pany hirn to the b<ink of a river."}}, {"text": "Lala", "label": "PETITIONER", "start_char": 581, "end_char": 585, "source": "ner", "metadata": {"in_sentence": "P. W. 9 Sabir aged about 18 year \\Vent to the house of Lala (deceased) \\vho used to render physicril training and swin1ming lessons to young boys and requested Lala to accon1pany hirn to the b<ink of a river.", "canonical_name": "Lala"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2534, "end_char": 2540, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(a)", "label": "PROVISION", "start_char": 2631, "end_char": 2638, "source": "regex", "metadata": {"statute": null}}, {"text": "S. Shau/wt Hussain", "label": "LAWYER", "start_char": 4542, "end_char": 4560, "source": "ner", "metadata": {"in_sentence": "S. Shau/wt Hussain, for the appellant."}}, {"text": "Pramod Swarup", "label": "LAWYER", "start_char": 4582, "end_char": 4595, "source": "ner", "metadata": {"in_sentence": "Pramod Swarup, for the respondent."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 4662, "end_char": 4669, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGoswAMI, J. The day, April 4, 1966, broke ominously for Lala 1larhi (deceased) who used to render physirnl training and swimming lessons to young boys."}}, {"text": "Lala 1larhi", "label": "OTHER_PERSON", "start_char": 4718, "end_char": 4729, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGoswAMI, J. The day, April 4, 1966, broke ominously for Lala 1larhi (deceased) who used to render physirnl training and swimming lessons to young boys.", "canonical_name": "Lala 1larhi"}}, {"text": "Sabir Hanfi", "label": "WITNESS", "start_char": 4828, "end_char": 4839, "source": "ner", "metadata": {"in_sentence": "One such boy, Sabir Hanfi (PW 9), aged about\n\n18 years, went to the house of Lala Barbi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur."}}, {"text": "Lala Barbi", "label": "OTHER_PERSON", "start_char": 4891, "end_char": 4901, "source": "ner", "metadata": {"in_sentence": "One such boy, Sabir Hanfi (PW 9), aged about\n\n18 years, went to the house of Lala Barbi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur.", "canonical_name": "Lala 1larhi"}}, {"text": "Muzaffarpur", "label": "GPE", "start_char": 4954, "end_char": 4965, "source": "ner", "metadata": {"in_sentence": "One such boy, Sabir Hanfi (PW 9), aged about\n\n18 years, went to the house of Lala Barbi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur."}}, {"text": "Raje11dra Prasad", "label": "PETITIONER", "start_char": 5190, "end_char": 5206, "source": "ner", "metadata": {"in_sentence": "There when Lala was cleansing his teeth and washing his face, the appellant Raje11dra Prasad (hereinafter to be described as the accused) came there with four or five persons. '", "canonical_name": "Raje11dra Prasad"}}, {"text": "\\Vith Lala", "label": "OTHER_PERSON", "start_char": 5341, "end_char": 5351, "source": "ner", "metadata": {"in_sentence": "It is said that the accused had some differences \\Vith Lala over son1e money \\Vhich he had given to him to .assault somebody which Lala failed to accomplish."}}, {"text": "Sabir Hanfi", "label": "RESPONDENT", "start_char": 5568, "end_char": 5579, "source": "ner", "metadata": {"in_sentence": "As his companions were keeping Lala engaged in talk, the accused thrust a dagger on the .back of Lala who then rnlled Sabir Hanfi.", "canonical_name": "Sabir Hanfi"}}, {"text": "Lala", "label": "PETITIONER", "start_char": 5582, "end_char": 5586, "source": "ner", "metadata": {"in_sentence": "Lala.", "canonical_name": "Lala"}}, {"text": "Sabir Hanfi", "label": "RESPONDENT", "start_char": 5778, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "Sabir Hanfi and others also ran behind Lala to his aid.", "canonical_name": "Sabir Hanfi"}}, {"text": "Ram Pukar Sah", "label": "WITNESS", "start_char": 5964, "end_char": 5977, "source": "ner", "metadata": {"in_sentence": "They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Laehman Prasad\n\n(PW 10) and Sabir Hanfi (PW 9)."}}, {"text": "Parmeshwar Prasad", "label": "WITNESS", "start_char": 5986, "end_char": 6003, "source": "ner", "metadata": {"in_sentence": "They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Laehman Prasad\n\n(PW 10) and Sabir Hanfi (PW 9)."}}, {"text": "Laehman Prasad", "label": "WITNESS", "start_char": 6012, "end_char": 6026, "source": "ner", "metadata": {"in_sentence": "They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Laehman Prasad\n\n(PW 10) and Sabir Hanfi (PW 9)."}}, {"text": "section 302", "label": "PROVISION", "start_char": 6332, "end_char": 6343, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6345, "end_char": 6362, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 2(a)", "label": "PROVISION", "start_char": 6442, "end_char": 6454, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970", "label": "STATUTE", "start_char": 6462, "end_char": 6534, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 29, 1966", "label": "DATE", "start_char": 6744, "end_char": 6762, "source": "ner", "metadata": {"in_sentence": "PW 4 who lodged the first information report without naming any accused and who did not know the accused before the occurrence could not even identify him at the Test Identification Parade which was held on September 29, 1966."}}, {"text": "June 17, 1966", "label": "DATE", "start_char": 7587, "end_char": 7600, "source": "ner", "metadata": {"in_sentence": "There is no reason why the Test Parade was delayed so long when the accused had surrendered on June 17, 1966."}}, {"text": "Lala Barhi", "label": "OTHER_PERSON", "start_char": 8193, "end_char": 8203, "source": "ner", "metadata": {"in_sentence": "He further observed that these witnesses saw the accused at the time when he was running away from the place of occurrence and, therefore, \"it is highly improbable that they would be able to retain the impression of the assailant of Lala Barhi in their mind for so many months\".", "canonical_name": "Lala 1larhi"}}, {"text": "Balu Ghat", "label": "GPE", "start_char": 8887, "end_char": 8896, "source": "ner", "metadata": {"in_sentence": "They then went to Balu Ghat for a bath."}}, {"text": "S. 186", "label": "PROVISION", "start_char": 13786, "end_char": 13792, "source": "regex", "metadata": {"statute": null}}, {"text": "G. S. Chaturvedi", "label": "OTHER_PERSON", "start_char": 13820, "end_char": 13836, "source": "ner", "metadata": {"in_sentence": "That this time, Shri G. S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd."}}, {"text": "Thana", "label": "GPE", "start_char": 13862, "end_char": 13867, "source": "ner", "metadata": {"in_sentence": "That this time, Shri G. S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd."}}, {"text": "Mohd. Sabir Hanfi alias Funna", "label": "OTHER_PERSON", "start_char": 13886, "end_char": 13915, "source": "ner", "metadata": {"in_sentence": "That this time, Shri G. S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd."}}, {"text": "sec. 302", "label": "PROVISION", "start_char": 14001, "end_char": 14009, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 14010, "end_char": 14013, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhargava", "label": "OTHER_PERSON", "start_char": 14308, "end_char": 14316, "source": "ner", "metadata": {"in_sentence": "Bhargava's Standard Illustrated Dictionary, Hindi Language, gives the meaning of Hajat, inter alia, as custody, and states thus : \"Hajat mein rakhna\" means \"to keep a culprit in custody\". ·"}}, {"text": "section 302", "label": "PROVISION", "start_char": 15300, "end_char": 15311, "source": "regex", "metadata": {"statute": null}}, {"text": "Chaturvedi", "label": "GPE", "start_char": 16510, "end_char": 16520, "source": "ner", "metadata": {"in_sentence": "4) shows that the Town Inspector, Chaturvedi, brought him to the Thana."}}, {"text": "Gupteshwar Dayal", "label": "WITNESS", "start_char": 16943, "end_char": 16959, "source": "ner", "metadata": {"in_sentence": "Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there."}}, {"text": "April 5; 1966", "label": "DATE", "start_char": 16986, "end_char": 16999, "source": "ner", "metadata": {"in_sentence": "Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there."}}, {"text": "Rajemlra Prasad", "label": "PETITIONER", "start_char": 17077, "end_char": 17092, "source": "ner", "metadata": {"in_sentence": "Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there.", "canonical_name": "Raje11dra Prasad"}}, {"text": "Ram Bilas Sahani", "label": "WITNESS", "start_char": 17094, "end_char": 17110, "source": "ner", "metadata": {"in_sentence": "Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there."}}, {"text": "Mohan Jha", "label": "WITNESS", "start_char": 17115, "end_char": 17124, "source": "ner", "metadata": {"in_sentence": "Besides, PW 12, as he says, had taken .charge of the investigation from Sub-Inspector, Gupteshwar Dayal\n\n(PW 13) at 11.00 A.M. on April 5; 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajemlra Prasad, Ram Bilas Sahani and Mohan Jha at their houses, examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there."}}, {"text": "6-4-1966", "label": "DATE", "start_char": 17683, "end_char": 17691, "source": "ner", "metadata": {"in_sentence": "PW 12, however, admitted that he recorded the statement of PW 9 on the following day (6-4-1966) at 12.05 A.N., after having produced him before the 'Superintendent of Police."}}, {"text": "April 6, 1966", "label": "DATE", "start_char": 17997, "end_char": 18010, "source": "ner", "metadata": {"in_sentence": "after he had recorded his statement on April 6, 1966, at 12.05\n\nA.N.\n\nFrom the evidence of PW 12 read with the entry (Ex."}}, {"text": "section 164", "label": "PROVISION", "start_char": 18268, "end_char": 18279, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 18281, "end_char": 18304, "source": "regex", "metadata": {}}, {"text": "AprH 12, 1966", "label": "DATE", "start_char": 18309, "end_char": 18322, "source": "ner", "metadata": {"in_sentence": "Again, the statement of PW 9 was recorded by the Magistrate under section 164, Criminal Procedure Code, on AprH 12, 1966, when perhaps the police had finally decided to treat him as a prosecution witness instead of an accused."}}]}
{"document_id": "1977_3_692_696_EN", "year": 1977, "text": "TAKASEELA PEDDA SUBBA REDDY\n\nPUJARI PADMAVATHAMMA & ORS.\n\nApril 28, 1977\n\n[P. N. BHAGWAT! AND S. MURTAZA FAZAL ALI, JJ.]\n\nCode of Civil Procedure, (Act V of 1908), 1908-0rdcr X){J, Rule 64--- Scope of-.Meaning of the words \"as 1nny seieni necessary to satisfy the decree\".\n\nOrder XXI Rule 64 of the C.P.C. lays down that \"nny court executing a decree may order that any property attached by it and liable to sale or such\n\nportion thercot as 1nay sei~1n 11ecessary to satisfy the decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof shall be paid to the party entitled under the decree to receiYe the same.\"'\n\nThe 5th respondent/decree-holder, S.P.R. Reddy obtained two decrees against the Judgment-debtor Pujari Subbarayudu in two suits viz.; 0.S. 15 of 1949 and O.S. 19 of 1953. He filed execution proceeding, No. 24 of 1953 in the trial Court for selling the .properties belonging to the judgment-debtor in Devanoor and Gudipadu vilJages in order to satisfy the decree in 0.S. 15 of 1949.\n\nHe also applied for permission to bidat the auction sale. In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sun1 of Rs. 16,880/-. Despite the fact that thesale proceeds of the land'i in village Devanoor alone was sufficient to satisfy the decretal amount mentioned in the warrant of sale and the proclamation of sale viz.; Rs. 16,715.50, the Court proceeded to sell the properties of the judgment-debtor in village Gudipadu which fetched Rs . .12,500/- and \\Vhich were purchased by the appellant auction-purchaser. The jUdgment-debtor filed an application on March 31,. 1955 to set aside the sale contending, inter alia, that once the sale of the properties in village Devanoor ~'as sufficient to satisfy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of Order XX! Rule 64 of the C.P.C. The Trial Court rejected the said application; whereupon the decree-holder on April 20, 1955 obtained an order from the court for rateable distribution of the sale proceeds. fn appeal the High Cou1t accepted the plea of the judgment-debtor regarding non-complianCc with the provisions of 0.XXI Rule 64 C.P.C. and set aside the sale ~'ith respect to the properties situated in village Gudipadu.\n\nDismissing the appeal by certificate the .court,\n\nHELD : ( 1) The High Court rightly held that as the sale of the properties in village Devanoor fetched an aniount mentioned in the sale warrant, the Executing Court was not jutified in proceeding with the sale of the propert_ies in village Gudipadu and should have stoppe~ the sale. [694 F]\n\n(2) The logical corollary which flows from O.XXI Rule 64 of the Co<le is that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the saJe, of further items should be stopped. [695 C-Dl\n\n(3) Under Order XXI Rule 64, the Executing Court derives jurisdiction to se11 properties attached only to the point at which the decree is fully satisfied. The words \"necessary to satisfy the decree\" clearly indicate that no sale can be mentioned in the sale proclamation and is sufficient to satisfy the decree, no alloVi'ed beyond the decretal amount mentioned in the sale proclamation. In other words, \\Vhere thesale fetches a price equal to or higher than the amount\n\nfurth~!·sale should be held and the court should stop at that stage. [695 E~F]\n\n(4) In the facts and circumstances of the present case, there being nothing to show that the decree-holder had approached the court for including the second tlccretal amount obtained in 0.S. 19 of 19~3 in the proclan1ation of sak, the\n\nT. P. SUBBA REDDY v. p PADMAVATIJAMMA (Fazal Ali, f) 693\n\nxuting Court was not justified in selling the properties situated in village Gud1padu.\n\nThe fact that tht! judgment-debtor did not raise an objection on this ground b.!fore the Executing Court is not sufficient to put him out of court\n\nbecaus~ this was a matter which went to the very root of the jurisdiction of the E'.xecutmg Court to sell the properties and the non-compliance with the provisions ot O.XXI, Rule 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudapadu were concerned. [695 G-H, 696 Al\n\n(5) The Court remitted the ffiatter to the Executing Court for an inquiry with the following directions : ,\n\n\\i) The appellant Will have to return the properties in village Gudipadu to the Judgment-debtor and he will be entitled to receive the value of improwments made by him during the time he. was in possession of these properties, as detern1ined by the Executing Court, in addition to Rs. 12,500/-.\n\n(ii) He will not be etitlcd to any interest on the value of the improvements, 1f he 1s found to be 1n possession of the property.\n\n(iii) If the Executing Court finds that the auction-purchaser was not in possession of the properties, the judgment-debtor will have to refund the amount of Rs. 12,500/- to the appellant with interest at the rate of 12 per cent per annum from the date of sale up!D the date of refund. [696 B-El\n\nCML APPELLATE JURISDICTION : c. A. No. 2381 of 1968.\n\n(From the Judgment and Order dated the 30th March 1965 of the Andhra Pradesh High Court in Appeal against Order No. 443 of 1963)\n\nP. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant.\n\n8. R. Agarwa/a, for respondents.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J. This appeal by certificate arises out of execution proceedings in respect of a decree obtained by the respondents/decreeholders.\n\nIt appears that the 5th respondent/decree-holder Siddam Pedda Rami Reddi hereinafter referred to as \"SP\" Reddi--obtained\n\na decree in 0. S. No. 15 of 1949 from the Court of Sub-Judge Kurnool against the judgment-debtor Pujari Subbarayudu hereinafter referred to as \"Pujari\" or \"judgment-debtor\". The 5th respondent had also. obtained another money decree against Pujari in another suit being O.S. No. 19 of 1953.\n\nThe 5th respondent/decree-holder filed Execution Proceedings No. 24 of 1953 in the Trial Court for selling !he properties belonging to the judgment-debtor in order to satisfy the decree in 0. S. No. 15 of 1949 and he also applied for permission to bid at the auction sale.\n\nThe first sale was held on October 12, 1954 at which the lands situated in villages Devanoor and Gudipadu were put to sale. But this sale was set aside as there was some delay in payment of the sale price. Consequently a second sale was held on March 2, 195 5 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auction-purchaser T.P.S. Reddy purchased the lands in village Gudipadu.\n\nIt is also not disputed that in the warrant of sale as also the sale proclamation, the decretal amount for which the properties were to be sold was mentioned as Rs. 16,715-8-0.\n\nThe sale of lands in village\n\nA ..\n\nDevanoor alone fetched a sum of Rs. 16,880/- at which the sale \\fas knocked down.\n\nThus it would appear that the sale proceeds of the lands in village Devanoor were sufficient to satisfy the decretal amount mentioned in the proclamation of sale.\n\nDespite this fact, the Court proceeded to sell the properties of the judgment-debtor in village Gudipadu which fetched Rs. 12;500/- and which were purchased by the appellant/auction-purchaser.\n\nOn April 20, 1955 the decree-holder obtained an order from the Court for rateable distribution of the sale proceeds.\n\nIn other words, this order was passed by the Court not before the sale so that the entire decretal amount could have been mentioned in the sale proclamation but a few days after the sale had already taken place.\n\nThis is rather an important aspect of the matter which appears to have been completely overlooked by the Trial Court.\n\nOn March 31, 1955 lhe Judgment-debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious prejudice to the judgment-debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation.\n\nFinally it was contended by the judgment-debtor that once the sale of the properties in village Devanoor was sufficient to satisfy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of 0.21 r. 64 of the Code of Civil Procedure-hereinafter referred to as 'the Code-instead of continuing the sale of the properties-in village Gudipadu.\n\nThe Trial Court, however, after hearing the objections of the decree-holder rejected the application of the judgment-debtor.\n\nThereafter the judgment-debtor preferred an appeal before the High Court which, while negativing the grounds taken by the judgment-debtor regarding the material irregularities in the conduct of sale or the under-valuation of the properties, accepted the plea of the judgment-debtor regarding the non-compliance with the provisions of 0.21 r. 64 or the Code.\n\nThe High Court held, and in our opinion rightly, that as the sale of the properties in village Devanoor fetched an amount which was sufficient to satisfy the amount mentioned in the sale warrant, the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale.\n\nThe High Court accordingly accepted the plea of the judgment-debtor and set aiidc the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us.\n\nIn this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgmen!- debtor. It was also argued by learned counsel for the appellant that H the judgment debtor did not raise any objection before tlie Executing Court against continuing the sale of other properties situated in village Gudipadu. It was next submitted that the 5th respondent/decreeholder had obtained another decree in O.S. 19 of 1953 and the total\n\nI 1\n\nT. P. SUBBA REDDY v. p PADMAVATHAMMA (Fazal Ali, J.) 69'5\n\namount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decreeholder had taken an order from the Executing Cuurt for rateable distribution Ofthe sale proceeds.\n\nIt is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable.\n\nIt is not disputed that the warrant of sale was prepared long after the 5th respondentldccreeholder had obtained the second decree in 0. S. 19 cif i953 and yet no attempt was made by the decree-holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. 0. S. 15 of 1949 but also of the decree in the second suit in 0. S. 19 of 1953.\n\nJn these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in' the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the >ale of further items of the properties.\n\nIt is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, Jhe sale of fur lher items should be stopped.\n\nThis, in our opinion, is the logical corollary which flows from 0.21 r. 64 of the Code which may be extracted\n\nthus :\n\n\"Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to\n\nreceive the same.\" E\n\nUnder this provision the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied.\n\nThe words \"necessary to satisfy the decree\" clearly indicate lhat no sale can be allowed beyond the decretal amount mentioned in the sale proclamation.\n\nIn other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation F and is suf!iclent to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satisfv the amount of Rs, 16,715-8-0 mentioned in the sale proclamation.\n\nIt is true that the decree-holder had obtained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree-holder had G approached the Court for including the second decretal amount in the proclamation of sale.\n\nIn these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipadu.\n\nThe fact that the iudgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter H which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of\n\n0. 21 r. 64 of the Code was sufficient to vitiate the same so far as the\n\n\"A ..\n\nproperties situated in village Gudipadu were concerned.\n\nFor these reasons, the contentions raised by counsel for the appel.lant must be overruled.\n\nThis, however, does not put an end to the issue, because the High Court, while setting aside the sale, has passed no order for d justing the equities between the parties.\n\nAccording to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements.\n\nIf the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment-debtor, but he will be entitled to receive the value of improvement's made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12,500/-. The Executing Court will have to hold au inquiry into the matter and de'.ermine the value of the improvements made by the appellant which will have to be paid to him.\n\nThe appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties.\n\nIf, however, the Executing Court finds that the auction-purchaser was not in possessio11 ot the properties and the properties continued to be in possession of the judgment-debtor, then the question of the value of improvements will naturally not arise. 'In that event the judgment-debtor will have to refund the amount of Rs. 12,500/- to the appellant with interest' at the rate of 12 % per annum from the date of sale upto the date of refund.\n\nFor these reasons, .therefore, the appeal is dismissed with the modification indicated above and the case is sent back to the Executing Court to hold an inquiry into the matter.\n\nIn the special and peculiar circumstances of the present case, we make no order as to costs.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 39, "entities": [{"text": "TAKASEELA PEDDA SUBBA REDDY", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "TAKASEELA PEDDA SUBBA REDDY", "offset_not_found": false}}, {"text": "PUJARI PADMAVATHAMMA & ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "PUJARI PADMAVATHAMMA & ORS", "offset_not_found": false}}, {"text": "April 28, 1977", "label": "DATE", "start_char": 58, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "April 28, 1977\n\n[P. N. BHAGWAT!"}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 94, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 122, "end_char": 145, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order XXI Rule", "label": "STATUTE", "start_char": 274, "end_char": 288, "source": "regex", "metadata": {}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 299, "end_char": 304, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 15", "label": "PROVISION", "start_char": 782, "end_char": 787, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "S. 19", "label": "PROVISION", "start_char": 802, "end_char": 807, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "S. 15", "label": "PROVISION", "start_char": 1013, "end_char": 1018, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "March 2, 1955", "label": "DATE", "start_char": 1115, "end_char": 1128, "source": "ner", "metadata": {"in_sentence": "In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sun1 of Rs."}}, {"text": "Devanoor", "label": "GPE", "start_char": 1189, "end_char": 1197, "source": "ner", "metadata": {"in_sentence": "In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sun1 of Rs."}}, {"text": "Gudipadu", "label": "GPE", "start_char": 1511, "end_char": 1519, "source": "ner", "metadata": {"in_sentence": "16,715.50, the Court proceeded to sell the properties of the judgment-debtor in village Gudipadu which fetched Rs ."}}, {"text": "March 31,. 1955", "label": "DATE", "start_char": 1655, "end_char": 1670, "source": "ner", "metadata": {"in_sentence": "The jUdgment-debtor filed an application on March 31,."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 1955, "end_char": 1960, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "April 20, 1955", "label": "DATE", "start_char": 2040, "end_char": 2054, "source": "ner", "metadata": {"in_sentence": "Rule 64 of the C.P.C. The Trial Court rejected the said application; whereupon the decree-holder on April 20, 1955 obtained an order from the court for rateable distribution of the sale proceeds."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2264, "end_char": 2269, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 19", "label": "PROVISION", "start_char": 3714, "end_char": 3719, "source": "regex", "metadata": {"statute": null}}, {"text": "Gud1padu", "label": "GPE", "start_char": 3897, "end_char": 3905, "source": "ner", "metadata": {"in_sentence": "695 E~F]\n\n(4) In the facts and circumstances of the present case, there being nothing to show that the decree-holder had approached the court for including the second tlccretal amount obtained in 0.S. 19 of 19~3 in the proclan1ation of sak, the\n\nT. P. SUBBA REDDY v. p PADMAVATIJAMMA (Fazal Ali, f) 693\n\nxuting Court was not justified in selling the properties situated in village Gud1padu."}}, {"text": "Gudapadu", "label": "GPE", "start_char": 4330, "end_char": 4338, "source": "ner", "metadata": {"in_sentence": "judgment-debtor did not raise an objection on this ground b.!fore the Executing Court is not sufficient to put him out of court\n\nbecaus~ this was a matter which went to the very root of the jurisdiction of the E'.xecutmg Court to sell the properties and the non-compliance with the provisions ot O.XXI, Rule 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudapadu were concerned. ["}}, {"text": "P. Ram Reddy", "label": "OTHER_PERSON", "start_char": 5389, "end_char": 5401, "source": "ner", "metadata": {"in_sentence": "443 of 1963)\n\nP. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant."}}, {"text": "K. Jayaram", "label": "OTHER_PERSON", "start_char": 5403, "end_char": 5413, "source": "ner", "metadata": {"in_sentence": "443 of 1963)\n\nP. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant."}}, {"text": "K. Ram Kumar", "label": "LAWYER", "start_char": 5418, "end_char": 5430, "source": "ner", "metadata": {"in_sentence": "443 of 1963)\n\nP. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant."}}, {"text": "R. Agarwa", "label": "RESPONDENT", "start_char": 5455, "end_char": 5464, "source": "ner", "metadata": {"in_sentence": "R. Agarwa/a, for respondents."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 5530, "end_char": 5538, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL Au, J. This appeal by certificate arises out of execution proceedings in respect of a decree obtained by the respondents/decreeholders."}}, {"text": "Siddam Pedda Rami Reddi", "label": "RESPONDENT", "start_char": 5722, "end_char": 5745, "source": "ner", "metadata": {"in_sentence": "It appears that the 5th respondent/decree-holder Siddam Pedda Rami Reddi hereinafter referred to as \"SP\" Reddi--obtained\n\na decree in 0."}}, {"text": "October 12, 1954", "label": "DATE", "start_char": 6388, "end_char": 6404, "source": "ner", "metadata": {"in_sentence": "The first sale was held on October 12, 1954 at which the lands situated in villages Devanoor and Gudipadu were put to sale."}}, {"text": "March 2, 195 5", "label": "DATE", "start_char": 6606, "end_char": 6620, "source": "ner", "metadata": {"in_sentence": "Consequently a second sale was held on March 2, 195 5 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auction-purchaser T.P.S. Reddy purchased the lands in village Gudipadu."}}, {"text": "Reddi", "label": "RESPONDENT", "start_char": 6653, "end_char": 6658, "source": "ner", "metadata": {"in_sentence": "Consequently a second sale was held on March 2, 195 5 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auction-purchaser T.P.S. Reddy purchased the lands in village Gudipadu."}}, {"text": "Davanoor", "label": "GPE", "start_char": 6699, "end_char": 6707, "source": "ner", "metadata": {"in_sentence": "Consequently a second sale was held on March 2, 195 5 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auction-purchaser T.P.S. Reddy purchased the lands in village Gudipadu."}}, {"text": "T.P.S. Reddy", "label": "PETITIONER", "start_char": 6744, "end_char": 6756, "source": "ner", "metadata": {"in_sentence": "Consequently a second sale was held on March 2, 195 5 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auction-purchaser T.P.S. Reddy purchased the lands in village Gudipadu."}}, {"text": "March 31, 1955", "label": "DATE", "start_char": 7907, "end_char": 7921, "source": "ner", "metadata": {"in_sentence": "On March 31, 1955 lhe Judgment-debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious prejudice to the judgment-debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation."}}, {"text": "debtor Pujari", "label": "PETITIONER", "start_char": 7935, "end_char": 7948, "source": "ner", "metadata": {"in_sentence": "On March 31, 1955 lhe Judgment-debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious prejudice to the judgment-debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8534, "end_char": 8561, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 19", "label": "PROVISION", "start_char": 10405, "end_char": 10410, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 19", "label": "PROVISION", "start_char": 11022, "end_char": 11027, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 15", "label": "PROVISION", "start_char": 11262, "end_char": 11267, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 19", "label": "PROVISION", "start_char": 11324, "end_char": 11329, "source": "regex", "metadata": {"statute": null}}, {"text": "Gudipadu", "label": "OTHER_PERSON", "start_char": 13920, "end_char": 13928, "source": "ner", "metadata": {"in_sentence": "21 r. 64 of the Code was sufficient to vitiate the same so far as the\n\n\"A ..\n\nproperties situated in village Gudipadu were concerned."}}]}
{"document_id": "1977_3_697_710_EN", "year": 1977, "text": "TARULATA SYAM AND ORS.\n\nCOMMISSIONER OF INCOME-TAX, WEST BENGA1\"\n\nApril 28, 1977\n\n{P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.] B\n\nIndian Income Tax Act, 1922-S. 2(6A)(e)-Scope of.\n\nCo1npany a s. 23A Co111pany in which public are not substantiq/.ly intertsted -Had accunut!ated profits-Gave loan/ to a shareholder-Loan repaid before !he end of tlir financial year-Loun if dividend withiln s. 2(6A)(e).\n\nUnder section 2(W\\) (e) of the Indian Income-tax Act, 1922, the term dividend includes any payment by a company not being a company in v,; hich\n\nthe public are substantially interested \\Vithin the meaning of s. 23A of any sum (whether as represcntirw: a part of the assets of the company or otherwise) by way of advance or Joan to a shareholder or a•ny payment by any such company on behalf or for the individual benefit of a shareholder to the extent to \\Vhich the company in either case possesses accumulated profits.\n\nAccording to s. 12(IA) of the Act, income from other sources include'> dividends.\n\nSub-section (1B) of s. 12 provides any payment by a conl.pany to a shareholder by way of advance or loan which would have been treated .as dividend within the meaning of s. 2(6A)(e) in any previous year relevant io any assessment year prior to the assessment year ending on the 31st day -Of March, 1956 had that clause been in force in that vear, shall be treated\n\na<S a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of MarCb, 1956, if such loan or advance remained outstanding on the first day of such previous year.\n\nThe provisions of s. 2(6A) (e) and s. 12(1B) had been borrowed and adopted with certain .alterations from s. 108(1) of the Commonwealth Income Tax Assessment Act of Australia the last limb of which provided that payment to a shareholder by \\Vay of advance or loan was to be treated as dividend paid by the company on the last day of the year of income of the company in \\Yhich payment \\Vas n1ade.\n\nThe appellant-assessce waG a shareholder and Managing Director of a Private Ltd. Company.\n\nIn the calendar year 1956 (assessment year 1957- 58), the assessee \\vithdrew in cash from the con1pany n• sum of Rs. 4.97 lakhs, \\vhich was less than the accumula-ted profits of the company.\n\nBefore the end of the year, the assessec repaid the whole amount. Deducting a sun1 of Rs. 1.59 lakhs \\Vhich was credited to the assessee's account by way of dividend in the company's books, the Income-tax Officer treated the balance of Rs. 2.72 lakhs as dividend income in the assessee's hands and grossed up: the amount under s. 16(2).\n\nOn appeal, the Accountant Member Of the Appellate Tribunal held that any payment made as envisaged in s. 2(6A)(e) became dividend and must be treated as the assessee's income and no subsequent repayment could take it out of the mischief pf the provision.\n\nThe Judicial Member on the otMr hand held that since total income of the assessee during the relevant previous year could be computd and assessed only at the end of that year any ad\\·nce or loan taken during the interim periods of the previous year would have to be ignored.\n\nOn reference the President agreed \\vith the Accountant Member.\n\nThe J-Iigh Court ans\\vered the reference in favour of the Revenue.\n\nA were taken and (ii) the last limb of s. I 08 (I ) of the Australian Act should be read into the Indian Act because what was explicit in. s. 108(1) of the ' Australian Act is implicit in s. 2(6A) (e) and s. 12(1B) of the Indian Act.\n\nDistnissing the appeal.\n\nHELD: The fiction created by s. 2(6A)(e) read with s. 12(1B) of the Act is attracted as soon as all the conditions necessary for its application exist in a case.\n\n[707' C]\n\n1. In Navnit Lal C. Javeri v. K. K. Sen, Appellate Assistant Co1n1nissivner !11co11ie-tax [1965] 1 SCR 909, this Court he1d that the combined effect of these two provisions is that three kinds of payments made to a shareholder of a company are treated as taxable dividend to the extent of the accumulated profits held by the company, namely, payments made to the shareholder by\n\n\\Vay of advance or Jon. payments made on his behalf and payments made for his individual benefit.\n\nThe five conditions to he satisfied are : (i) The company n1ust be one in which the public are not substantially interested within the meaning of s. 23A; (ii) The bQrrower must be a shareholder at the date v.; hen the loa-n \\Vas advanced; (iii) The loan advanced can be deemed to be dividend only to the extent of the accun1ulated pro'fit on the date of the Joan: (iv) The loan must not have been advanced by, the company in 1he ordinsiry course of its business and (v) The loan must have remained outstanding at the comn1encement of the shareholder's previous year in re!a ... tion to the assessment year 1955-56. [707 D-GJ\n\nIn the instant case the con1pany was a controlled con1pany \\Vithin the meaning of s. 23A; the assessee was its shareholder; the company possessed \"accumulated profits\" in excess of the a•mount paid to the assessee during the previous years; and the company's business \\Vas not money lending. 1'he last condition was not applicable because it was a transitory provision ap_plicable to the assessment year 1955~56 only \\Vhile the assessment yea<r in this. case was 1957-58. f708 Al\n\n2. (a) The language of ss. 2(6A)(e) and 12(1B) is clear and unambiguous.\n\nThere is no scope for importing into the statute \\VOrds \\Vhich )<. are not there. Such importation would be not to construe it but to amend the statute.\n\nEven if there be ai casus 01nissus, the defect can be remedied only by legislation and not by judicial interpretation. [708 HJ\n\n(b) No justification to depart from the normal rule of construction according to which the intention of the legislature is prin1arily to be gathered F from the won.l:; used in the statute hs been made out.\n\n(c) The Indian Legislature has deliberately omitted to use in ss. 2(6A) (e) and 12 (lB) words analogous to those in the last li1nb of s. 108( 1) of the Australian P..ct.\n\nWhen ss. 2(6A)(e) and 12(1B) \\Vere inserted by Finance Act. 1955, Parliament must have been aware of the provision contained in s. 108 of the Australian Act.\n\nJn spite of such awareness, Parliament has not thought it fit to borrow the whole hog what is sa.id in s. 108(1) so far as the last lin1b of that section is concerned.\n\nOur Parliament imported only G a very restricted version, and incorporated the san1e as the 5th condition in s. 12(1B) to the effect, that the payment dee1ned as divi<lend shall be treated as dividend received by him in the previous year relevaont to the assessment j\n\nyear ending on the 31st March, 1956 if such loan or advance remained outstandirtg on the last day of such previous year The word \"such\" prefixed to the previous year shows that the application of this clause is confined to the assessment year ending on 31st ~.farch, 1956. (709 C~D]\n\nIn the instanl case the assessment year did not end on 31st March, 1956 lvhich showed tht the Legislature has deliberately not made the subsistence of the loaQ or advance or its being outstanding on the last, date of the previous year relevant to the asse_ssment year, a pre-requisite for raising the statutory fiction.\n\nIn other \\Vords, even if the loan or ndvance cCased to be\n\noutstanding at the end of the previous year, it could still be deemed as dividend if the other four conditions factually existed to the extent of -the accumulated profits possessed by the company. (709 EFl\n\n(.d) Under s. 3 which is the charging section, the previo~~ year. is the unit of tiine on which the assessment is based.\n\nAs the taxab1hty of income is related to its receipt or accrual -in the previous year, the momnt dividend is received whether actual or deemed, income taxable under the residuary head, \"income from othr sources\", arises. The charge being on accrual or recipt. the statutory fiction created by ss. 2(6A)(e) and s. 12(1B) would cme mto operation at the time of payment by \\vay of advance or loan prov1Jed the other conditions are satisfied. [709 G-H]\n\nCIVIL APPELLATE JURISDICTION: c. A. No. 147 of 1972.\n\n(Appeal by Special Leave from the Judgment ad Order dated 19.2.1971 of the Calcutta High Court in Income Tax Ref. No. 98/67) G. C. Shanna, D. N. Mukherjee, A. K. Ganguly and G. S. Chatteriee, for the appellants.\n\nB. B. Ahuja and R. N. Sachthey, for respondent.\n\nG. C. Shanna, D. K. Jain, A11111> Sharma, S. P. Nayar and.Miss K.\n\nJaiswal for the Intervener.\n\nThe Judgment of the Court was 'delivered by\n\nSARKARIA J. Whether any payment by a Company, not being a Company in which the public are subsantially interested within the meaning of s. 23A, of any sum by way of advance or loan to a shareholder, not exceeding the accumulated profits possessed by the Company, is to be deemed as his dividend under Section 2(6A) (e) read with Section)2(1B) of the Incometax Act, 1922, even if that advance or loan is subsequently repaid in its entirely during the relevant prev>'ous year in which it was taken, is the only question that falls to be determined in thls appeal by special leave.\n\nThe assessment year is 1957-58, and the corresponding previous year is 'the calendar year 1956. The assessee is a shareholder and the Managing Director of M/s. Dolaguri Tea Co. (P) Ltd.\n\nThe Company is admittedly one in which the public are not substantially interesteJ within the meaning of s. 23A of the Indian Income-tax Act, 1922 (for short, the Act). At the commencement of the previous year, there was in the books of the Company a credit balance of Rs. 65,246/- in the assessee's account, which had been brought forward from the earlier year. Between the 11th January and the 12\\h\n\nNovember, 1956, the assesscc withdrew in cash from time to time from the Company, amounts, aggregating Rs. 4,97,442/-.\n\nThe first two cash amounts of Rs. 3,50,000/- and Rs. 40,400/-, were '.aken by the assessee on 11.1.1966. Deducting therefrom the opening balance of Rs. 65,246/- and two more items, namely, Rs. 1,40,000/- being outstanding dividends declared on 31.12.1955 of his major son, and transferred to his account, and a further dividend of Rs. 19,493/- credited to his account from Kathoni Tea Estate, there remained a sum of Rs. 2,72,7°'3/- to the debit of the nssessce\n\nin the books of the Company as on the 12th November, 1956. On December 29, 1956, the assessee paid back to the Company a sum of Rs. 1,90,000/-. On December 31, 1956, his account was credited with another sum of Rs. 80,000/- in respect of the dividend due to him and his wife, and with a further sum of Rs. 29,326/- for liypotecation. In this manner before the end of the previous year, the asscssee'& :tccount was credited with an aggregated amount oi Rs. 2,99,326/- which exceeded the debit balance of Rs. 2,72,703/- as on November 12, 1956.\n\nThus at the end of the relevant previous year, no advance or loan was due to the Company by the assessee.\n\nThe Income-tax Officer found that the accumulated profits of the Company as on January 1, 1956, amounted to Rs. 6,83,005.\n\nHe, therefore, deducted the two aforesaid items of Rs. 1,40,000/- and Rs. 19,493/-, aggregating Rs. 1,59,493/-, from the amount paid in cash to the assessee and treated the balance of Rs. 2,72,703/- as the net 'dividend' income in the hands of the assessee within the meaning of Section 2 ( 6A)( e). The Income-tax Officer grossed up that amount under Section 16(2) and gave credit for tax in accordance with that Section to the assessee.\n\nD The asscssee's appeal to the Appellate Assistant Commissioner having failed, he preferred a further appeal to the Income-tax Appellate Tribunal. There was a divergence of opinion between the Members of the Tribunal. The Accountant Member took the view that the moment a payment is made as envisaged in Section 2 ( 6A) ( e) it becomes clothed with the character-of a dividend and has to be treated as such income of the assessee, and no subsequent action or repayment \"E by the share-holder can take it out of the mischief of this provision.\n\nHe therefore held that the sum of Rs. 2,72,703/- was taxable ns\n\ndividend under Section 2 ( 6A)( e). •\n\nThe Judicial Member expressed a contrary opinion.\n\nIn his view, the total income of the assessec during the relevant previous year could be computed and assessed only at the end of that year; it could not be computed at interim periods during the previous year. \"If it is found that although the shareholder had taken by way of advance or loan an amount from the Company during the course of a previous year but. had returned the same to the Company before the close of that previous year, it can only be said while computing the shareholder's total income at the end of that previous year that no advance or loan from the 23A Company of which he was a shareholder stood for his benefit at the time relevant for computation of his total income. The advances or loans taken during the interim periods of the previous year would just have to be ignored.\" On these premises, the Judicial Member crune to the conclusion that the sum of Rs. 2, 72, 703 /- grossed up to Rs. 3,19,245/-, was not a dividend within the fiction under Section 2(6A)(e) of the Act.\n\nOn account of this difference of opinion, the following question \\vas referred to the President of the Tribunal :\n\n\"Whether on the facts and in the circumstances of the case, the sum of Rs. 2,72,703/- net (Rs. 3,19,245/- gross)\n\nT. sYAM v. c. I. T. (Sarkaria, J.) 701\n\nis to be treated as dividend income in the hands of the asses- A see within the meaning of Section 2 ( 6A)( e) ?\"\n\nThe President agreed with the Accountant Member and held that an \"advance or Joan received by the shareholder of a Private Company forthwith assumes the character of a dividend and becomes his income by virtue of the fiction created by Section 2(6A) (e) and it ceases to be a liability for the purpose of taxation, although the assessee may, in B fact or in law, remain liable to the Company . to repay it. If the\n\nassessee repays the loan subsequently, such repayment would not liquidate or reduce the quantum of the income which had already accrued, as such repayment is not be llowed as a permissible deduction under Section 12(2) .\" On these premises, he answered the question in the affirmative.\n\nIn accordance. with the majority opinion, the Tribunal dismissed the asessee's appeal, but, at his instance, referred the same question for opinion to the High Court under Section 66(1) of the Act.\n\nThe High Court held that the tax was attracted at the point of time when the said Joan was borrowed by the shareholder and it was immaterial whether the loan was repaid before the end of the accounting year or not. On this reasoning it answered the question in favour of the Revenue and against the assessee.\n\nHence this appeal by the assessee.\n\nBefore dealing with the contentions canvassed, it is necessary tcr have a look at the general scheme and the relevant provisions of the Act, Section 2(6A) (e) of the Act reads as follows :\n\n\"2 (6A) \"dividend\" includes-\n\n(a) to (d)\n\n(e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; but \"'dividend\" does not includc- ( i) a distribution made in accordance with sub-clause\n\n(c) or sub-clause (d) in respect of any share issued for full cash consideration where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets;\n\n(ii) any advance or loan made to a shareholder by a company in the ordinary course of its busmess where the lending of money is a substantial part of the business of the company;\n\n(iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause ( e), to the extent to which it is so set off; ·\n\nExplanation.-The expression \"accumulated profits\", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and before the !st day of April, 1956;\n\nSub-section (15) defines 'total income' as meaning \"total amount of income, profits and gains referred to in sub-section (!) of Section c 4 computed in the manner laid down in this Act.\"\n\nSection 3 is the charging section. Two of the principles deducible from the Section are :\n\n(I ) That the tax is levied on the total income of the assessable entity;\n\n(2) That each previous year is a distinct unit of time for the purpose of assessment, and the profits made or liabilities or losses incurred before or after the relevant previous year are wholly immaterial in assessing the profits of that year unless there is a statutory provision to the contrary.\n\nSection 4 ( 1) so far as it is material reads as fo1Iows :\n\n\"Section 4 (!) : Subject to the provisions of this Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which- ( a) are received or are deemed to be received in the taxable territories in such year by or on behalf of such person, or\n\n(b) if such person is resident in the taxable territories during such year,-\n\n(i) accrue or arise or any deemed to accrue or arise to him in the taxable territories during such year, or\n\n(ii) accrue or arise to him without the taxable territories during such year, or (iii)\n\n(c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year : (emphasis supplied) \"Provided that .. ,,\n\nThe principles .deducible from Sec. 4(1) are : (l ) The charge is on accrual or receipt basis. Such receipt or accrual may be actual or statutory, i.e. the result of any statutory fiction created by the Act.\n\n(2)\n\n(3)\n\nIf a particular amount of income is taxed under any of the clauses (a), (b) or (c) of the sulrsection the same amount cannot be taxed under any other clause either in the same year or in a different year. That is to say, income which is taxed on accrual under clause (b) (ii) cannot be taxed again on receipt under clause (a) or on remittance under Clause (b) (iii) (see Kanga and Palkhiwala, Vol. I; 1959 Edition, page 153).\n\nThe receipt spoken of in this clause is the first receipt after the accrual of the income l See the decision of this Court in Keshav Mills v. Commissioner of lncome-t(lx(')).\n\nSub-section (I) of Sec. 4 also highlights the basic principle embodied in the charging section 3, that the accrual or receipt of income C (actual or deemed) is taxed with regard to the relevant previous year.\n\nSection 12 deals with the residuary head : \"Income from other sources\".\n\nIts sub-section (JA) says that:\n\n\"Income from other sources shall include 'dividends'.\n\nSub-section (!Bl in crucial.\n\nIt provides :\n\n\"Any payment by a company to a shareholder by way of advance or loan which would have been treated as a dividend within the meaning of clause ( e) of sub-section ( 6A) of section 2 in any previous year relevant to any assessment year prior to the assessment year ending on the 31st day of March, 1956 had that clause been in force in that year, shall be treated as a dividend received by him in the previous'year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remained outstanding on the first day of snch previous year\".\n\nSub-section (2), inter alia lays down that in computing any income by way of dividend, allowance shall be given for any reasonable sum paid by way of commission or remuneration to a banker or any other person realising suc.h dividend on behalf of the assessee.\n\nIt is to be noted that sub-section (6A) of section 2 and subsections (!A) and (lB) u/s 12 were inserted in the Act by the Finance Act, 1955, with effect from the 1st April, 1956.\n\nt In the relevant assessment year, Section 16(2) of the Act was operative and ran as follows :\n\n\"16(2) For the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or -----\n\n(!) [1953] 23 I.T.R. 230.\n\nA •\n\ndistributed to bim, and shall be increased to such amount as would, if income-tax (but not super-tax) at the rate applicable to the total income of the company. . . . . for the financial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed were deducted therefrom, be equal to the amount 'of the dividend.\"\n\nMr. G. C. Sham1a, Counsel for the appellants c011tends that the scope of the fiction created by Sec. 2( 6A)( e) should be confined to those advances and loans only, which are not repaid but remain subsisting at the end of the previous year in which they were taken. It is argued that the sole object of this provision is to curb the evil of distributing profits under the guise of loaru; or advances; that if an advance or loan is repaid in the same accounting year, it cannot be said that it \\Vas a device for distribution of profits. It is submitted that only in the case of an advance or loan which remains outstanding at the end of the accounting year, Sec. 2(6A) (e) raises an irrebutablc presumption that it was a payment of dividend under the cloak of a loan. It is maintained that if this construction of Sec. 2(6A) (e) is not adopted, it will lead to extremely oppressive, unreasonable and anamolous results, including double taxation.. To illustrate bis point Couasel compares and contrasts the position of a shareholder who promptly, after a short period, repays the loan in the same year, with one who does not do so but allows it to remain outstanding and be carried over to the next year, and thereafter a dividend is declared. If the interpretation adopted by the High Court is correct-says Mr. Sharma-the shareholder in the prior case who had promptly repaid the loan would not be entitled under sub-clause (iii) of Clause (e) of s. 2(6A) to set off any part of the subsequently declared dividend against the loan which he had repaid earlier, but will have to pay double tax on the same item, once on it as deemed dividend and then on it as declared dividend.\n\nHis liability cannot be reduced to the extent of the dividend; because at .the date on which the dividend was declared, no loan was outstanding against which it could be set off.\n\nAs against the fOl'lller, the latter shareholder who makes full use of the' loan and . does not repay any part of the loan in the same year, but leaves it unpaid till a dividend is declared net year, will get rellef by set olt of the subsequently declared dividend. in whole or in part against the loan outstanding against him.\n\nAnother example cited by Mr. Sharma is of a case where the accumulated profit, say is Rs. 9,000/- and the shareholder takes an advance or loan of Rs. 3,000/- and he repays it after a week, and again gets the same amount (Rs. 3,000/-) back as a loan, and again repays it after a week, and again retakes the same amount as loan-all the three loans being taken and repaid, in the same year. If the unrestricted interpretation of the provision, sought by the Revenue were to be adopted, the same amount of loan in all the three transactions of loan would be subjected to triple taxation. Such an absurd and oppressive result, says the Counsel, would be against the intendmcnt of the provision and inconsistent with the scheme of the Act which generally aillls avoids double taxation.\n\nThe upshot of the arguments of Mr.\n\n( . .,\n\nSharma is that under the Act, only that item or entity is taxable which is rationally capable of being considered as the income of the asscssee; that an advance or oan which is genuine and not a subterfuge for payment of dividend and is not subsisting or outstanding at the end of the previous year on account of its repayment by the sh.areholder cannot reasonably be deemed to be his dividend income w1thm\n\nthe contemplation of s. 2(6A) (e) read with s. 12 of the Act.. Mr Sharma has taken us through various decisions having a bearing on the problem. The cases referred to, discussed or sought to be distinguished by him are : K. M. S. Lakshman Aiyar v. Assistant Income-tax Officer,(') N.avnit Lal C. Javeri v. K. K. Sen, Appellate Assistant Commissioner, Income-tax, Bombay;(') Commissioner. of Income-tax, i\\fadras v. K. Srinivasan;(•) JValclzand & Co. Ltd. v. Commissioner of\n\nIncon1e-tax, IJ01nbay;(') Comn1issioner, Inco1ne-tax Bo1nbay. v. R. K. . C Badiani.( 5 ) • ·\n\nMr. Sharma also has referred to Sec. I 08 of the Comnionwealih Income-tax Act as in force in Australia, and submitted that since the substance of Sec. 2(6A)(e) and s. 12(!B) has been borrowed from s. 108 of the said Act and the object of these provisions in the two enactments is the same, it will not be illegitimate to determine ana . D circumscribe the scope of the fiction created by the provision in question in the light of the principles indicated in Sec. 108 of the Commonwealth Act.\n\nOn the other hand. Mr. Ahuja appearing for the Revenue, submits that sub-clause (iii) . which permits a set off against a loan deemed as dividend, docs not apply in cases where the dividend is not declared E in the same accounting year because to hold otherwise would be against\n\nthe basic scheme ingrained in ss. 3 and 4 of the Act, according to which the unit of time for the purpose of assessment is the previous year of th\" assessce. Mr. Ahuja further maintains that even if during the same accounting year after repayment' of the loan, a dividend is declared, sub-clause (iii) will apply, and the Income-tax Officer -will'not be aebarred from reducing, in an appropriate case, the amount treated by F him as 'dividend' under clause ( e) of s. 2 ( 6A) to the extent of the subsequently declared dividend, on the principle of notional set off underlying sub-clause (iii). The point sought to be made out is that since\n\nthe treatment of the loan to the assessee shareholder as his dividend rests on a legal fiction, it will not be an illegitimate use of sub-clause\n\n(iii) to allow a notional set off to meet such a situation.\n\nThus construed, says the Counsel, there would be no anomaly.\n\nMr. Ahuja further submitted that s. 2(6A) (e) was enacted to •uppress the evil of receiving profits or dividends nnder the guise of !?ans by the shareholders of a controlled Company, as such a malpracltce resulted in evasion of tax. This provision, it is urged should be construed in .a manner which suppresses the mischief and advances the remedy. It is maintained that the language of the provisions in question H\n\n(I) [t96~) XL I.T.R. 469 (M1d.)\n\n(3) (1963) 50, !TR 788 (Mid).\n\n(5) [1970)76 l.T.R. 369 (Born).\n\n(2) [1965] I, SCR 909-56 I.T.R.19.8.\n\n(4) too I.T.R. 598(Bom).\n\nis plain and unambiguous and no question of seeking external aid tor its interpretation arises; the Court must give effect to it regardless of the hardship, if any, resulting therefrom. The sum and substance of his arguments is. that since all the factual ingredients necessary for raising . the fiction contemplated bys. 2(6A)(e) ands. 12(JB) have been found to exist by the Income-tax al!thorities and the Tribunal, the loan. had to be treated as the assessee's dividend income, the moment it was received, and the subsequent repayment of the loan cou:d not neutralise or take it out of that category of 'incdme'.\n\nCounsel has drawn our attention to the ooocrvations of this Court in Navnit Lal C. Javeri v.\n\nK. K. Sen. Appellate Assistant Commissioner of Income-tax (sµpra).\n\nHe has further adopted the reasoning of the Bombay High Court m Walchand & Co.'s v. Commissioner of Income-tax, Bombay (supra).\n\nSection 2(6A)(e) ands. 12(1B) were inserted in the Act by the Finance Act 1955 which came into operation on 1-4-1955.\n\nThese provisions seem to have been adapted, and borrowed with alterations, from s. 108 of the Commonwealth Income-tax Assessment Act in force ' in Australia. Section 108 reads as follows:\n\n\"Loans to shareholders, (1) If amounts are paid or assets distributed by a private company to any of its shareholders by way of advances or loans, or payments are made by the company on behalf of or for the individual benefit of, any of its shareholders, so much, if any, of the amount or value of those advances, loans or payments, as, in the opinion of the Commissioner, represents distributions of income shall, for the proposes of this Act other than the purposes of Division llA of Part III and Division 4 of Part VI be deemed to be dividends paid by the company on the last day of the year of income of the company in which the payment 0r distributio\"n is made.\n\n(2) Where the amount or value of an advance, loan or payment is deemed, under the last preceding sub-section, to be a dividend paid by a company to a shareholder, and the company subsequently sets off the whole or a part of a dividend distributed by it in satisfaction in whole or in part of that advance, loan or payment, that dividend shall, to the extent to which it is so set off, be deemed, not to be a dividend for any purpose of this Act.\"\n\nIt will be seen that under s. 108 (1) formation of \"the opinion of the Commissioner\" is the sine qua non for bringing this provision into provision into operation. It has been held be the Australian Board of Review that the mere fact that a shareholder in a private Company has become indebted to it, does not justify the formation of the opinion by the Commissioner such as is indicated in sub-section (1) of s. 108. \"There must be something that goes beyond a mere debt automatically arising upon a taking of accounts and which points to a subterfuge whereby a payment which, upon examination, is found to relate to tne\n\nincome of the Company and to represent the distribution thereof, is made to appear to be a loan or advance\" (J.C.T.B.R. (N.S.) Case No. 80.)\n\n\"\" ..\n\nIt is noteworthy that at least in one material aspect the Indian Jaw ; s different from that under s. I 08 (I) of the Commonwealth Act as explained and interpreted by the Board in the case mentioned above.\n\nUnder s. 108, the raising of the fiction is dependent upon a positive finding recorded by the Commissioner of Income-tax that the payment represents distribution of the Company's income. Buts. 2(6A){e) and\n\n5. 12 of the Act do not leave this question to the adjudication of the Income-tax authorities. Parliament has itself, in the exercise of its Jegi>- lative judgment, raised a conclusive presumption, that in all cases where loans are advanced to a shareholder in a Private Ltd. Company having accumulated profits, the advances should be deemed to be the dividend income of the shareholder. It is this presumption juris et de jure which is the four, dation of the statutory fiction incorporated in s. 2(6A) (e).\n\nThus s. 108 of the Commonwealth Act appears to be more reasonable and less harsh than its Indian counterpart.\n\nFrol)l the above discussion it emerges clear that the fiction created 'bys. 2(6A) (e) read withs. J2(1B) of the Act is inexorably attracted as soon as all the conditions necessary for its application exist in a case.\n\nIn Navnit Lat's case (supra), this Court, after an analysis of these provisions, listed these conditions, as follows :\n\n\" ... the combined effect of these two provisions is that D three kinds of payments made to the shareholder of a company to which the said provisions apply, are treated as taxable dividend to the extent of the accumulated profits held by the company. These three kinds of payments are: (1) payments made to the shareholder by way of advance or loan, (2) payments made on his behalf and (3) payments made for his 'individual benefit. There are five conditions which must be E satisfied before section 12(1B) can be invoked against a shareholder.\n\nThe first condition is that the company in question must be one in which the public are not 'substantially interested within the meaning of section 23A as it stood in •the year in which the loan was advanced. The second condition is that the borrower must be a shareholder at the date when the loan was advanced; it is immaterial what the ex- F tent of his shareholding is.\n\nThe third condition is that the loan advanced to a shareholder by such a company can be .deemed to be dividend only to the extent to which it is shown that the company possessed accumulated profit at the date of the loan. This is an important limit prescribed by the relevant section. The fourth condition is that the loan must not have been advanced by the company in the ordinary course G of its business.\n\nIn other word's, this provision would not apply to cases where the company which advances a loan to its shareholder carries on the business of money lending itself; and the last condition is that the loan must have remained outstanding at the commencement of the shareholder's previous year in relation to the assessment year 1955-56.\"\n\n(emphasis; supplied) H The first four conditions factually exist in the instant case.\n\nThe •ast condition is not applicable because it was a transitory provision\n\n6-707 SCT/77 . '\n\napplicable to the assessment year 1955-56 only, while we are concerned with the assessment year 1957-58 and the previous year is the calendar year 1956.\n\nThere is no dispute that the company is a controlled (Private Ltd.) company in which the public are not substantially interested within the meaning of s. 23A.\n\nFurther the assessee is admit.tedly a shareholder and Managing Director of that Company.\n\nIt is also beyond. controversy that at all material times, the company possessed \"accumulated profits\" in excess of the amount which the assessee-shareholder was paid during the previous year.\n\nThe Income-tax Officer found that on January 1, 1956, the accunmlated profits of the Company amounted to Rs. 6,83,005/- while from 11.1.1956 to 12.11.1956, th.e assessee received in cash from time to time from the Company payments aggregating Rs. 4,97,449/-.\n\nAfter deducting the opening credit balance and some other items credited to his account, the Income-tax Officer found that in the previous year the assessee share-holder had received a net payment of Rs. 2, 72, 703 /- by way of loan or advance from the Company. The Company's business is not money lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business.\n\nThus all the factual conditions for raising statutory fiction created by ss.2(6A) (e) and 12(IB) appeared to have been satisfied in the instant case.\n\nMr. Sharma, however, contends that in order to attract the statutory fiction one other essential condition is, that the loan or advance must be outstanding at the end of the previous year, and if the loan had ceased to exj,5t owing to repayment or otherwise before the end of the year-as in the present case-the fiction cannot be invoked.\n\nIn this connection, Counsel has again referred to the last limb of s. 108 ( 1) of the Commonwealth Income-tax Act, according to which, the payment to a shareholder by way of advance or loan. is to be treated as a dividend paid by the Company on the last day of the year of income of the Company in which the payment is made.\n\nIt is urged that the principle in the last limb of sub-section' ( 1) of s. 108 of the Commonwealth Act should also be read into the Indian statute.\n\nIt is maintained that the omission of such words from ss. 2(6A) (e) and 12(1B) does not show that the intendment of the Indian Legislature was different.\n\nAccording to the Counsel what is implicit in s. 108(1) of the Commonwealth Act, is implicit in ss. 2(6A) (e) and 12(1B) and the general scheme of. the Act which requires that the assessment is to be made on the basis of total income of the whole previous year.\n\nSuch a view concludes Mr ..\n\nSharma, would also be in consonance with reason and justice.\n\nWe have given anxious thought to the persuasive arguments o~ Mr.\n\nSharma.\n\nHis arguments, if accepted, will certamly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the Janguge of ss. 2(6A) (e) a.ml ~2qB) is clear and unambiguous.\n\nThere 1s no scoe for mportmg mto the statute words which are not there.\n\nSuch 1mportat10n would be, not to construe but to amend the statute. Even if there be a casu.~ omissus the defct can be remedied only by 1egfslation: and i1ot by judicial interrretation. -\n\nTo us, there appears no justificatiou to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicase v. I. R. C.(1) at p. 71, that \"in a taxing Act one has to look merely at what is clearly said.\n\nThere is no room for any intendment.\n\nThere is no equity about a tax.\n\nThere is no presumption as to a tax. nothing is to be read in, nothing is to be implied. One can qnly look fairly at the langnage used\".\n\nOnce it is shown that the case of the assessee comes comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be.\n\nIn our opinion, the Indian Legislature has deliberately omitted to use in ss. 2(6A) (e) and 12(1B) words analogous to those in the last limb of sub-section ( 1) of s. I 08 of the Commonwealth Act. When Sections 2(6A) (e) and 12(1B) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in s. 108 of the Commonwealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in s. I 08 (I) of the Commonwealth Act.\n\nSo far as the last lim.b of s. 108 (I) is concerned, our Parliament imported only a very restricted version arid incorporated the same as the 'fifth condition' in sub-s. ( lB) of s. 12 to the effect, 'that the \"payment deemed as dividend shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956 if such loan or advance remains outstanding on the last day of such previous year\".\n\nThe word \"such\" prefixed to the \"previous year\" shows that the application of this clause is confined to the assessment year ending on 31-3-1956. In the instant case we are not concerned with the assessment year ending on 31-3-56.\n\nThis highlights the fact that the Legislature has deliberately not made the subsistence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a prerequisite for raising the statutory fiction.\n\nIn other words, even if !he loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a 'dividend' if the other four conditions factually exist, to the extent of the accumulated profits possessed by the Company.\n\nAt the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time\n\non which the assessment is based (s. 3).\n\nAs the taxability of an G income is related to its receipt or accrual in the previous year, the moment a dividend is received whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, \"income from other sources\", arises.\n\nThe charge being on accrual or receipt the statutory fiction created by s. 2 ( 6A) ( e) and s.l2(1B) would come into operation at the time of the payment by\n\nway of advance or loan, provided the other conditions are satisfied.\n\n(l)\n\n(1921) l, K.B. 64 at p. 71.\n\nA We do not propose to examine the soundness or otherwise of the • illustrations given by Mr. Shanna since they are founded on assumed facts which do not exist in the present case.\n\nFor the foregoing reasons we would answer the question posed in favour of the Revenue and dismiss this appeal with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 151, "entities": [{"text": "TARULATA SYAM AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "TARULATA SYAM AND ORS", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, WEST BENGA1", "label": "RESPONDENT", "start_char": 24, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "April 28, 1977", "label": "DATE", "start_char": 66, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, WEST BENGA1\"\n\nApril 28, 1977\n\n{P. 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"end_char": 5933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108( 1)", "label": "PROVISION", "start_char": 5996, "end_char": 6006, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2(6A)(e) and 12(1B)", "label": "PROVISION", "start_char": 6038, "end_char": 6061, "source": "regex", "metadata": {"statute": null}}, {"text": "Vere inserted by Finance Act", "label": "STATUTE", "start_char": 6063, "end_char": 6091, "source": "regex", "metadata": {}}, {"text": "Parliament", "label": "ORG", "start_char": 6099, "end_char": 6109, "source": "ner", "metadata": {"in_sentence": "1955, Parliament must have been aware of the provision contained in s. 108 of the Australian Act."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 6161, "end_char": 6167, "source": "regex", "metadata": {"linked_statute_text": "Vere inserted by Finance Act", "statute": "Vere inserted by Finance Act"}}, {"text": "s. 108(1)", "label": "PROVISION", "start_char": 6295, "end_char": 6304, "source": "regex", "metadata": {"linked_statute_text": "Vere inserted by Finance Act", "statute": "Vere inserted by Finance Act"}}, {"text": "s. 12(1B)", "label": "PROVISION", "start_char": 6470, "end_char": 6479, "source": "regex", "metadata": {"linked_statute_text": "Vere inserted by Finance Act", "statute": "Vere inserted by Finance Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7512, "end_char": 7516, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2(6A)(e)", "label": "PROVISION", "start_char": 7916, "end_char": 7928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(1B)", "label": "PROVISION", "start_char": 7933, "end_char": 7942, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 8073, "end_char": 8101, "source": "ner", "metadata": {"in_sentence": "709 G-H]\n\nCIVIL APPELLATE JURISDICTION: c. A. No."}}, {"text": "G. C. Shanna", "label": "LAWYER", "start_char": 8252, "end_char": 8264, "source": "ner", "metadata": {"in_sentence": "98/67) G. C. Shanna, D. N. Mukherjee, A. K. Ganguly and G. S. Chatteriee, for the appellants.", "canonical_name": "G. C. Shanna"}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 8266, "end_char": 8281, "source": "ner", "metadata": {"in_sentence": "98/67) G. C. Shanna, D. N. Mukherjee, A. K. Ganguly and G. S. Chatteriee, for the appellants."}}, {"text": "A. K. Ganguly", "label": "LAWYER", "start_char": 8283, "end_char": 8296, "source": "ner", "metadata": {"in_sentence": "98/67) G. C. Shanna, D. N. Mukherjee, A. K. Ganguly and G. S. Chatteriee, for the appellants."}}, {"text": "G. S. Chatteriee", "label": "LAWYER", "start_char": 8301, "end_char": 8317, "source": "ner", "metadata": {"in_sentence": "98/67) G. C. Shanna, D. N. Mukherjee, A. K. Ganguly and G. S. Chatteriee, for the appellants."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 8340, "end_char": 8351, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey, for respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 8356, "end_char": 8370, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey, for respondent."}}, {"text": "D. K. Jain", "label": "LAWYER", "start_char": 8403, "end_char": 8413, "source": "ner", "metadata": {"in_sentence": "G. C. Shanna, D. K. Jain, A11111> Sharma, S. P. Nayar and."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 8431, "end_char": 8442, "source": "ner", "metadata": {"in_sentence": "G. C. Shanna, D. K. Jain, A11111> Sharma, S. P. Nayar and."}}, {"text": "K.\n\nJaiswal", "label": "LAWYER", "start_char": 8452, "end_char": 8463, "source": "ner", "metadata": {"in_sentence": "Miss K.\n\nJaiswal for the Intervener."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 8530, "end_char": 8538, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was 'delivered by\n\nSARKARIA J. Whether any payment by a Company, not being a Company in which the public are subsantially interested within the meaning of s. 23A, of any sum by way of advance or loan to a shareholder, not exceeding the accumulated profits possessed by the Company, is to be deemed as his dividend under Section 2(6A) (e) read with Section)2(1B) of the Incometax Act, 1922, even if that advance or loan is subsequently repaid in its entirely during the relevant prev>'ous year in which it was taken, is the only question that falls to be determined in thls appeal by special leave."}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 8666, "end_char": 8672, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(6A)", "label": "PROVISION", "start_char": 8831, "end_char": 8844, "source": "regex", "metadata": {"statute": null}}, {"text": "Incometax Act, 1922", "label": "STATUTE", "start_char": 8880, "end_char": 8899, "source": "regex", "metadata": {}}, {"text": "Dolaguri Tea Co. (P) Ltd.", "label": "ORG", "start_char": 9270, "end_char": 9295, "source": "ner", "metadata": {"in_sentence": "The assessee is a shareholder and the Managing Director of M/s. Dolaguri Tea Co. (P) Ltd.\n\nThe Company is admittedly one in which the public are not substantially interesteJ within the meaning of s. 23A of the Indian Income-tax Act, 1922 (for short, the Act)."}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 9402, "end_char": 9408, "source": "regex", "metadata": {"linked_statute_text": "the Incometax Act, 1922", "statute": "the Incometax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 9416, "end_char": 9443, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "11.1.1966", "label": "DATE", "start_char": 9913, "end_char": 9922, "source": "ner", "metadata": {"in_sentence": "40,400/-, were '.aken by the assessee on 11.1.1966."}}, {"text": "31.12.1955", "label": "DATE", "start_char": 10063, "end_char": 10073, "source": "ner", "metadata": {"in_sentence": "1,40,000/- being outstanding dividends declared on 31.12.1955 of his major son, and transferred to his account, and a further dividend of Rs."}}, {"text": "Kathoni Tea Estate", "label": "ORG", "start_char": 10192, "end_char": 10210, "source": "ner", "metadata": {"in_sentence": "19,493/- credited to his account from Kathoni Tea Estate, there remained a sum of Rs."}}, {"text": "12th November, 1956", "label": "DATE", "start_char": 10320, "end_char": 10339, "source": "ner", "metadata": {"in_sentence": "2,72,7°'3/- to the debit of the nssessce\n\nin the books of the Company as on the 12th November, 1956."}}, {"text": "December 29, 1956", "label": "DATE", "start_char": 10344, "end_char": 10361, "source": "ner", "metadata": {"in_sentence": "On December 29, 1956, the assessee paid back to the Company a sum of Rs."}}, {"text": "December 31, 1956", "label": "DATE", "start_char": 10429, "end_char": 10446, "source": "ner", "metadata": {"in_sentence": "On December 31, 1956, his account was credited with another sum of Rs."}}, {"text": "November 12, 1956", "label": "DATE", "start_char": 10806, "end_char": 10823, "source": "ner", "metadata": {"in_sentence": "2,72,703/- as on November 12, 1956."}}, {"text": "January 1, 1956", "label": "DATE", "start_char": 11012, "end_char": 11027, "source": "ner", "metadata": {"in_sentence": "The Income-tax Officer found that the accumulated profits of the Company as on January 1, 1956, amounted to Rs."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 11335, "end_char": 11344, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 11408, "end_char": 11421, "source": "regex", "metadata": {"statute": null}}, {"text": "Assistant Commissioner", "label": "PETITIONER", "start_char": 11537, "end_char": 11559, "source": "ner", "metadata": {"in_sentence": "D The asscssee's appeal to the Appellate Assistant Commissioner having failed, he preferred a further appeal to the Income-tax Appellate Tribunal."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 11800, "end_char": 11809, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 12120, "end_char": 12129, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(6A)(e)", "label": "PROVISION", "start_char": 13168, "end_char": 13184, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 13558, "end_char": 13567, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(6A)", "label": "PROVISION", "start_char": 13818, "end_char": 13831, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12(2)", "label": "PROVISION", "start_char": 14202, "end_char": 14215, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 66(1)", "label": "PROVISION", "start_char": 14456, "end_char": 14469, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(6A)", "label": "PROVISION", "start_char": 14970, "end_char": 14983, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 15182, "end_char": 15193, "source": "regex", "metadata": {"statute": null}}, {"text": "1st day of April, 1946", "label": "DATE", "start_char": 16335, "end_char": 16357, "source": "ner", "metadata": {"in_sentence": "Before dealing with the contentions canvassed, it is necessary tcr have a look at the general scheme and the relevant provisions of the Act, Section 2(6A) (e) of the Act reads as follows :\n\n\"2 (6A) \"dividend\" includes-\n\n(a) to (d)\n\n(e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; but \"'dividend\" does not includc- ( i) a distribution made in accordance with sub-clause\n\n(c) or sub-clause (d) in respect of any share issued for full cash consideration where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets;\n\n(ii) any advance or loan made to a shareholder by a company in the ordinary course of its busmess where the lending of money is a substantial part of the business of the company;\n\n(iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause ( e), to the extent to which it is so set off; ·\n\nExplanation.-The expression \"accumulated profits\", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and before the !"}}, {"text": "31st day of March, 1948", "label": "DATE", "start_char": 16372, "end_char": 16395, "source": "ner", "metadata": {"in_sentence": "Before dealing with the contentions canvassed, it is necessary tcr have a look at the general scheme and the relevant provisions of the Act, Section 2(6A) (e) of the Act reads as follows :\n\n\"2 (6A) \"dividend\" includes-\n\n(a) to (d)\n\n(e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; but \"'dividend\" does not includc- ( i) a distribution made in accordance with sub-clause\n\n(c) or sub-clause (d) in respect of any share issued for full cash consideration where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets;\n\n(ii) any advance or loan made to a shareholder by a company in the ordinary course of its busmess where the lending of money is a substantial part of the business of the company;\n\n(iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause ( e), to the extent to which it is so set off; ·\n\nExplanation.-The expression \"accumulated profits\", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and before the !"}}, {"text": "st day of April, 1956", "label": "DATE", "start_char": 16413, "end_char": 16434, "source": "ner", "metadata": {"in_sentence": "st day of April, 1956;\n\nSub-section (15) defines 'total income' as meaning \"total amount of income, profits and gains referred to in sub-section (!)"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 16625, "end_char": 16634, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 17091, "end_char": 17100, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 17152, "end_char": 17161, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 4(1)", "label": "PROVISION", "start_char": 17987, "end_char": 17996, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 18797, "end_char": 18803, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 18865, "end_char": 18874, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 18988, "end_char": 18998, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 19365, "end_char": 19374, "source": "regex", "metadata": {"statute": null}}, {"text": "31st day of March, 1956", "label": "DATE", "start_char": 19471, "end_char": 19494, "source": "ner", "metadata": {"in_sentence": "It provides :\n\n\"Any payment by a company to a shareholder by way of advance or loan which would have been treated as a dividend within the meaning of clause ( e) of sub-section ( 6A) of section 2 in any previous year relevant to any assessment year prior to the assessment year ending on the 31st day of March, 1956 had that clause been in force in that year, shall be treated as a dividend received by him in the previous'year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remained outstanding on the first day of snch previous year\"."}}, {"text": "section 2", "label": "PROVISION", "start_char": 20070, "end_char": 20079, "source": "regex", "metadata": {"statute": null}}, {"text": "s 12", "label": "PROVISION", "start_char": 20112, "end_char": 20116, "source": "regex", "metadata": {"statute": null}}, {"text": "Act by the Finance Act, 1955", "label": "STATUTE", "start_char": 20138, "end_char": 20166, "source": "regex", "metadata": {}}, {"text": "1st April, 1956", "label": "DATE", "start_char": 20189, "end_char": 20204, "source": "ner", "metadata": {"in_sentence": "A) and (lB) u/s 12 were inserted in the Act by the Finance Act, 1955, with effect from the 1st April, 1956."}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 20242, "end_char": 20255, "source": "regex", "metadata": {"linked_statute_text": "the Act by the Finance Act, 1955", "statute": "the Act by the Finance Act, 1955"}}, {"text": "G. C. Sham1a", "label": "LAWYER", "start_char": 20934, "end_char": 20946, "source": "ner", "metadata": {"in_sentence": "Mr. G. C. Sham1a, Counsel for the appellants c011tends that the scope of the fiction created by Sec.", "canonical_name": "G. C. Shanna"}}, {"text": "Sec. 2( 6A)( e)", "label": "PROVISION", "start_char": 21026, "end_char": 21041, "source": "regex", "metadata": {"linked_statute_text": "the Act by the Finance Act, 1955", "statute": "the Act by the Finance Act, 1955"}}, {"text": "Sec. 2(6A)", "label": "PROVISION", "start_char": 21587, "end_char": 21597, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 2(6A)", "label": "PROVISION", "start_char": 21743, "end_char": 21753, "source": "regex", "metadata": {"statute": null}}, {"text": "Couasel", "label": "OTHER_PERSON", "start_char": 21900, "end_char": 21907, "source": "ner", "metadata": {"in_sentence": "2(6A) (e) is not adopted, it will lead to extremely oppressive, unreasonable and anamolous results, including double taxation.. To illustrate bis point Couasel compares and contrasts the position of a shareholder who promptly, after a short period, repays the loan in the same year, with one who does not do so but allows it to remain outstanding and be carried over to the next year, and thereafter a dividend is declared."}}, {"text": "Sharma", "label": "LAWYER", "start_char": 22240, "end_char": 22246, "source": "ner", "metadata": {"in_sentence": "If the interpretation adopted by the High Court is correct-says Mr. Sharma-the shareholder in the prior case who had promptly repaid the loan would not be entitled under sub-clause (iii) of Clause (e) of s. 2(6A) to set off any part of the subsequently declared dividend against the loan which he had repaid earlier, but will have to pay double tax on the same item, once on it as deemed dividend and then on it as declared dividend.", "canonical_name": "Sharma"}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 22376, "end_char": 22384, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 24370, "end_char": 24378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 24393, "end_char": 24398, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 24981, "end_char": 24995, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sec. 2(6A)(e)", "label": "PROVISION", "start_char": 25064, "end_char": 25077, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(!B)", "label": "PROVISION", "start_char": 25082, "end_char": 25091, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 25115, "end_char": 25121, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 108", "label": "PROVISION", "start_char": 25376, "end_char": 25384, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahuja", "label": "OTHER_PERSON", "start_char": 25434, "end_char": 25439, "source": "ner", "metadata": {"in_sentence": "Mr. Ahuja appearing for the Revenue, submits that sub-clause (iii) ."}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 25721, "end_char": 25732, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 26156, "end_char": 26160, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 26635, "end_char": 26643, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 28003, "end_char": 28020, "source": "ner", "metadata": {"in_sentence": "He has further adopted the reasoning of the Bombay High Court m Walchand & Co.'s v. Commissioner of Income-tax, Bombay (supra)."}}, {"text": "Section 2(6A)(e)", "label": "PROVISION", "start_char": 28088, "end_char": 28104, "source": "regex", "metadata": {"statute": null}}, {"text": "Act by the Finance Act 1955", "label": "STATUTE", "start_char": 28139, "end_char": 28166, "source": "regex", "metadata": {}}, {"text": "1-4-1955", "label": "DATE", "start_char": 28196, "end_char": 28204, "source": "ner", "metadata": {"in_sentence": "12(1B) were inserted in the Act by the Finance Act 1955 which came into operation on 1-4-1955."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 28287, "end_char": 28293, "source": "regex", "metadata": {"linked_statute_text": "the Act by the Finance Act 1955", "statute": "the Act by the Finance Act 1955"}}, {"text": "Section 108", "label": "PROVISION", "start_char": 28365, "end_char": 28376, "source": "regex", "metadata": {"linked_statute_text": "the Act by the Finance Act 1955", "statute": "the Act by the Finance Act 1955"}}, {"text": "s. 108", "label": "PROVISION", "start_char": 29540, "end_char": 29546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 29923, "end_char": 29929, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 30498, "end_char": 30504, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(6A)", "label": "PROVISION", "start_char": 31194, "end_char": 31202, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 31214, "end_char": 31220, "source": "regex", "metadata": {"statute": null}}, {"text": "Navnit Lat", "label": "OTHER_PERSON", "start_char": 31541, "end_char": 31551, "source": "ner", "metadata": {"in_sentence": "In Navnit Lat's case (supra), this Court, after an analysis of these provisions, listed these conditions, as follows :\n\n\" ... the combined effect of these two provisions is that D three kinds of payments made to the shareholder of a company to which the said provisions apply, are treated as taxable dividend to the extent of the accumulated profits held by the company."}}, {"text": "section 12(1B)", "label": "PROVISION", "start_char": 32150, "end_char": 32164, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 32344, "end_char": 32355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 33811, "end_char": 33817, "source": "regex", "metadata": {"statute": null}}, {"text": "11.1.1956", "label": "DATE", "start_char": 34235, "end_char": 34244, "source": "ner", "metadata": {"in_sentence": "6,83,005/- while from 11.1.1956 to 12.11.1956, th.e assessee received in cash from time to time from the Company payments aggregating Rs."}}, {"text": "12.11.1956", "label": "DATE", "start_char": 34248, "end_char": 34258, "source": "ner", "metadata": {"in_sentence": "6,83,005/- while from 11.1.1956 to 12.11.1956, th.e assessee received in cash from time to time from the Company payments aggregating Rs."}}, {"text": "ss.2(6A)", "label": "PROVISION", "start_char": 34857, "end_char": 34865, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108", "label": "PROVISION", "start_char": 35342, "end_char": 35348, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 35374, "end_char": 35388, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 108", "label": "PROVISION", "start_char": 35673, "end_char": 35679, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2(6A)", "label": "PROVISION", "start_char": 35804, "end_char": 35813, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 108(1)", "label": "PROVISION", "start_char": 35950, "end_char": 35959, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2(6A)", "label": "PROVISION", "start_char": 36000, "end_char": 36009, "source": "regex", "metadata": {"statute": null}}, {"text": "Sharma", "label": "LAWYER", "start_char": 36196, "end_char": 36202, "source": "ner", "metadata": {"in_sentence": "Such a view concludes Mr ..\n\nSharma, would also be in consonance with reason and justice.", "canonical_name": "Sharma"}}, {"text": "ss. 2(6A)", "label": "PROVISION", "start_char": 36503, "end_char": 36512, "source": "regex", "metadata": {"statute": null}}, {"text": "Rowlatt", "label": "JUDGE", "start_char": 37058, "end_char": 37065, "source": "ner", "metadata": {"in_sentence": "It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicase v. I. R. C.(1) at p. 71, that \"in a taxing Act one has to look merely at what is clearly said."}}, {"text": "ss. 2(6A)", "label": "PROVISION", "start_char": 37647, "end_char": 37656, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 2(6A)", "label": "PROVISION", "start_char": 37775, "end_char": 37789, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 37826, "end_char": 37843, "source": "regex", "metadata": {}}, {"text": "s. 108", "label": "PROVISION", "start_char": 37907, "end_char": 37913, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "s. 108", "label": "PROVISION", "start_char": 38103, "end_char": 38109, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 38254, "end_char": 38259, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1955", "statute": "the Finance Act, 1955"}}, {"text": "31-3-1956", "label": "DATE", "start_char": 38671, "end_char": 38680, "source": "ner", "metadata": {"in_sentence": "The word \"such\" prefixed to the \"previous year\" shows that the application of this clause is confined to the assessment year ending on 31-3-1956."}}, {"text": "31-3-56", "label": "DATE", "start_char": 38758, "end_char": 38765, "source": "ner", "metadata": {"in_sentence": "In the instant case we are not concerned with the assessment year ending on 31-3-56."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 39455, "end_char": 39459, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 39819, "end_char": 39823, "source": "regex", "metadata": {"statute": null}}, {"text": "Shanna", "label": "OTHER_PERSON", "start_char": 40103, "end_char": 40109, "source": "ner", "metadata": {"in_sentence": "A We do not propose to examine the soundness or otherwise of the • illustrations given by Mr. Shanna since they are founded on assumed facts which do not exist in the present case."}}]}
{"document_id": "1977_3_711_713_EN", "year": 1977, "text": "TARLOK SINGH\n\nSTATE OF PUNJAB\n\nApril 28, 1977\n\n[V. R. KRISHNA IYER AND P. S. KAILASAM, JJ.]\n\nCrinzinal Procedure Code (Act 2 of 1974), 1973-Section 235, object and .scope of.\n\nThe appellant was convicted along with t~'O other accused under s. 302 1.P.C. and sentenced to death while the other two \"'ere sentenced to life iniprisonment.\n\nIn appeal to this Court against the orders of the High Court confirming the death sentence imposed, the special leave was granted limited\n\nto sentence.\n\nAllowing the Criminal Appeal No. 337 of 1976 in part and modifying the death sentence to one of life imprisonmenti, the Court,\n\nHELD : (!) The object of s. 235 Cr.P.C. 1974 is to give a fresh opportunity to the convicted person to bring to the notice of the court such circun1stances as may help the court in awarding an appropriate sentence havregard to the personal, social and other circumstances of the case. (712 D]\n\n!2) Failure to give an opportunity under s. 235(2) Cr.P.C. will not affect the conviction under ainy circumstance. In a' murder case where the charge is made out the limited question is as beiween the two sentences pre.scribed under the Penal Code. If the minimum sentence is imposed, question of providing an opportunity under s. 235 would not arise. [712 F]\n\n(3) The hearing contemplated by s. 235(2) is not confined merely to hearing oral submissions but extend giving an opportunity to the prosecution and the accused to place before the court facts and materials of sentence1 and, if they are contested by either side, then to produce evidence for thb purpose of establishing the same.\n\n[712 G]\n\nSanta Singh v. State of Punjab A.I.R. l't76 S C 2386, reiterated.\n\n(4) To save time and expense and help produce prompt justice, it may be more appropriate for the appellate court to give an opportiunity to the parties in. terms of s. 235 (2) to produce the materials they wish to adduce F instead of going through the exercise of sending the case back to the trial court. [713 Al\n\nIn the instant case, the Court mcxlifi.ed the death sentence to one of life imprisonment in view of the facts : (i) The death sentence has been inflicted nearly two years ago and the agony of such a sentence has been an excruciating experience suffered by the convict for a long period; (ii) The appellant had two other assailants with hi1n who have been .. a\\varded life imprisonment; (iii) There was no motive for the appellant to kill the innocent child; and (iv) The other circumstances present indicate that the ends of justice would be met by awarding life imprisonment. [713 G-E]\n\nE. Annamma v. State of Andhra Pradesh A:1.R. 1974 S.C. 799, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Cr!. A. 337 & 367 /1976 ff\n\n(Appeals by Special Leave from the Judgment and Order dated 24.3.1976 of the Punjab and Haryana High Court in Sri. A No. 757\n\nSUPREME COURT REPORTS\n\n[1977) 3 S.C.R.\n\n75 and Murder Reference No. 27 /75 and in Cr!. Appeal No. 759 of 1975)\n\nA. K. Sen and Hariinder Singh, for the appellant.\n\nN. S. Das Behl, for the respondent. ·\n\nThe Judgment of the court was delivered by\n\nKRISHNA IYER, J. In Cr!. Appeal No. 337 /1976 by special leave Shri A. K. Sen has confined his challenge-indeed, leave itself was limited-to the question of sentence. The case of murder was proved and the conviction by the Sessions Court was confirmed by the High Court. The Sessions Judge awarded life imprisonment to two accused and death sentence to the appellant.\n\nThe High Court confirmed the . death sentence and hence this appeal.\n\nSection 235 Cr. P.C. 1974 makes a departure from the previous Code on account of humanist considerations to personalise the sentence to be awarded. The object of the provision is to give a fresh such circnmstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case. Of course, when it is a case of conviction under s. 302, I.P.C. if the minimum sentence is imposed the question of providing an opportunity under Sec. 235 would not arise.\n\nIn this case it is admitted that no opportunity was given under s. 235(2) Cr. P. C. to the appellant to show cause as to why the lesser sentence of life imprisonment should not be inflicted.\n\nWe may make it absolutely clear that such a failure will not affect the conviction under any circumstances.\n\nThe only point is relevant to sentence.\n\nEven there in a murder case where the charge of murder is made out, the limited question is as between the two sentences prescribed under the Penal Code.\n\nIn Santa Siligh v. State of Puniab(') this Court considering s. 235\n\n(2) Cr. P. C. held that the hearing contemplated by that sub-section is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the court facts and materials relating to the various factors bearing on the question of sentence and, if they are contested by either side, then to produce evidence for the purpose of establishing the same.\n\nOf course, in that particular case this Court sent the case back to the sessions court for complying withs. 235(2) Cr. P. C. It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. Jn such cases it may be , more appropriate for the appellai~ court to give an opportunity to the parties in terms elf s. 235(2) to produce th-e ----·----\n\n(I) A.1.R. 1976 S.C. 2386\n\n~. •\n\nTARLOK SINGH v. PUNJAB (Krishna Iyer, J.) 713\n\nmaterials they wish to adduce instead of going through the exercise of sending the case back to the trial court.\n\nThis may, m many cases, save time and help produce prompt justice.\n\nln the present case we propose to adopt that course and counsel for the parties agree that they will rely upon the materials available on record and they have nothing more to offer to the court bearing on the question of sentence.\n\nIt will be an idle formality in a situation like :that to remit the case to reconsider the question of sentence to the Sessions Court.\n\nComing, to the facts of the present case, having heard both sides we are impressed by Shri Seu's submission that the death sentence has been inflicted nearly two years ago and the a-gony of such a sentence\n\nhas been an excruciating experience suffered by the convict for a C long period.\n\nThis, by itself, may not be a circumstance to bring down the death sentence, if otherwise the act is too brutal, depraved or meriting the highest penalty.\n\nIt has been now established in many decisions of this Court that death sentence must be awarded where there are aggravating factors (vide E. Annamma v. State of Andhra Pradesh(').\n\nThe appellant had two other assailants with him who have been awarded life imprisonment.\n\nMoreover, it is evident from the D records that there was an exchange of abuse between the parties, viz., Shiv Singh and the accused party.\n\nIt is also apparent that there was no motive for the appellant to kill the innocent child who died, a circumstance which has influenced the courts below in awarding the capital sentence.\n\nThe other circumstances present also indicate that there is no particular reason why the appellant should have been given the severer sentence and we are satisfied that the ends of justice would E be met be awarding life imprisonment.\n\nWe accordingly direct that the sentence of life imprisonment should be substituted in place of death sentence awarded by the trial court and confirmed by the High Court.\n\nWe allow the appeal to this extent.\n\nCr!. Appeal No. 367 of 1976 is dismissed as not pressed.\n\nS.R.\n\n(l) A.LR. 1974 S.C. 799\n\nCr. A. 337 allowed in part and sentence modified. Cr. A. 367 /76 dismissed.", "total_entities": 31, "entities": [{"text": "TARLOK SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "TARLOK SINGH", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 14, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "April 28, 1977", "label": "DATE", "start_char": 31, "end_char": 45, "source": "ner", "metadata": {"in_sentence": "TARLOK SINGH\n\nSTATE OF PUNJAB\n\nApril 28, 1977\n\n[V. R. KRISHNA IYER AND P. S. KAILASAM, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 48, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 71, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Crinzinal Procedure Code", "label": "STATUTE", "start_char": 93, "end_char": 117, "source": "regex", "metadata": {}}, {"text": "Section 235", "label": "PROVISION", "start_char": 140, "end_char": 151, "source": "regex", "metadata": {"linked_statute_text": "Crinzinal Procedure Code", "statute": "Crinzinal Procedure Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 240, "end_char": 246, "source": "regex", "metadata": {"linked_statute_text": "Crinzinal Procedure Code", "statute": "Crinzinal Procedure Code"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 643, "end_char": 649, "source": "regex", "metadata": {"linked_statute_text": "Crinzinal Procedure Code", "statute": "Crinzinal Procedure Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 650, "end_char": 656, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 953, "end_char": 962, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 963, "end_char": 969, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 1149, "end_char": 1159, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 235", "label": "PROVISION", "start_char": 1240, "end_char": 1246, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 1305, "end_char": 1314, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 1845, "end_char": 1851, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "[1977) 3 S.C.R.\n\n75", "label": "CASE_CITATION", "start_char": 2868, "end_char": 2887, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 2957, "end_char": 2966, "source": "ner", "metadata": {"in_sentence": "759 of 1975)\n\nA. K. Sen and Hariinder Singh, for the appellant."}}, {"text": "Hariinder Singh", "label": "LAWYER", "start_char": 2971, "end_char": 2986, "source": "ner", "metadata": {"in_sentence": "759 of 1975)\n\nA. K. Sen and Hariinder Singh, for the appellant."}}, {"text": "N. S. Das Behl", "label": "LAWYER", "start_char": 3008, "end_char": 3022, "source": "ner", "metadata": {"in_sentence": "N. S. Das Behl, for the respondent. ·"}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 3091, "end_char": 3103, "source": "ner", "metadata": {"in_sentence": "The Judgment of the court was delivered by\n\nKRISHNA IYER, J. In Cr!."}}, {"text": "Section 235", "label": "PROVISION", "start_char": 3530, "end_char": 3541, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3926, "end_char": 3932, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3934, "end_char": 3939, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 235", "label": "PROVISION", "start_char": 4023, "end_char": 4031, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 4114, "end_char": 4123, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 4534, "end_char": 4544, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 235", "label": "PROVISION", "start_char": 4608, "end_char": 4614, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 235(2)", "label": "PROVISION", "start_char": 5425, "end_char": 5434, "source": "regex", "metadata": {"statute": null}}, {"text": "Seu", "label": "OTHER_PERSON", "start_char": 6183, "end_char": 6186, "source": "ner", "metadata": {"in_sentence": "Coming, to the facts of the present case, having heard both sides we are impressed by Shri Seu's submission that the death sentence has been inflicted nearly two years ago and the a-gony of such a sentence\n\nhas been an excruciating experience suffered by the convict for a C long period."}}, {"text": "Shiv Singh", "label": "OTHER_PERSON", "start_char": 6914, "end_char": 6924, "source": "ner", "metadata": {"in_sentence": "Shiv Singh and the accused party."}}]}
{"document_id": "1977_3_714_720_EN", "year": 1977, "text": "SUPREME COURT REPORTS\n\nMISRILAL JAIN ETC. ETC.\n\nv .\n\nSTATE OF ORISSA & ANOTHER\n\nMay 2, 1977\n\n(1977] 3 S.C.R.\n\n[M. H. BEG, C.J., Y. V. CHANDRACHUD, P. N. BHAGVATI, V. R.\n\nKRISHNA !YER, N.1 L. UNTWALLA, S. MURTAZA FAZAL ALI ANU P. S.\n\nKAILASAM, JJ.}\n\nOrissa 1axation (On goods carried by Roads or Inland Watenvays) Act 8 of 1968-Sections 3 and 27-Constitutlonaf validity of.\n\nThe Orissa Taxation (On goods carried by Roads or Inland Waterways) Act 7 of 1959 and the Orissa Taxation (On Goods carried by Road or Inland Waterways) Validation Act 18 of 1962 were struck down by this Court on 10-8~1967 as invalid and it was held that the respondents were not entitled tQ recover any tax from the appellants under the &foresaid Acts.\n\nOn March 26, 1968, the Orissa Taxation (On Goods carried by Roads or Inland Waterways) Act 8 of 1968 was passed after obtaining the previoussanction of the President under Art. 304 of the Constitution to the moving of the Bill, imposing the same levy which it had unsuccessfully ait:tempted to levy under D : the Act of 1959 and to validate under the Act of 1962.\n\nBy section 1(3) of the 1968 Act, the Act was to be deemed to have come into force on April 27, 1959 being the date on which the Act of 1959 had come into force.\n\nSection 27 ot the Act provides that notwithstanding the expiry of the Act of 1959 <M.ld notwithstanding anything contained in any judgment decree or order of any court, all assessments made, all taxes imposed or realised, any liability incurred or any action taken under the Act of 1959 shall be deemed to have been validly made, imposed, incurred or taken under the corresponding provisions of the Act 1968.\n\nThe claims of some of the appellants who had E asked for refund of the tax collected under the Act of 1962 which was held unconstitutiona.1, having been refused by the Government, they filed wTit petitions in the Orissa High Court challenging the validity of the 1968 Act. The Hieb Court dismissed the writ petitions.\n\nIn appeal to this <;; curt by special leave, the Court,\n\nHELD : (I) The impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Constitution.\n\nSince it is well established that the povver to legislate carries with it the power to legislate retrospectively as much as prospectively, the circumstance that an enactment operates entirely in the past and has no prospective life cannot affect the competence of the Legislature; to pass the enactment if it falls with.in the list on which that competence can operate.\n\nAs regards the power to pass a validating Act, that power is essentially subsidi:M)' to the legislative competence to pass a law under an appropriate entry of the relevant list. [718 B-E]\n\nKhyerbar! Tea Co. Ltd. v.· State of Assam [1964] 5 S.C.R. 975, applied.\n\n(2) In the instant case, the St:\"lte Legislature passed an independent enactmen~ in 1968. after complying with. the l.'Onstitutional requirements, but it gave , l to that enactment retrospective effect from the date. that! the 1959 Act had 1\\, come into force and it created a legal fiction which was permissible for it to do, that all attions taken under the Act of '1959 shall be deemed to have been taken under the Act of 1968. [717 F-G]\n\nJawaharmal v. State of Rajasthan [1966] I SCR 890, not applicable.\n\n(3) If the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirement, the Legislature has competence to validate the enactment and such validation does not constitute an en- A croachment on the functions of the judiciary. The validity of a validating; taxing law depends upon \\vhether. the legislature possesses the competence over the subject-matter of the law; whether in making the validation it has removed the • defect from which the earlier enactment suffered and whether it has made due and adequate provision in the validating law for a va•lid imposition of the tax.\n\n(718 GH]\n\nPrithvi Cotton Mills v. Broach Borough Mu11icipality [1970] 1 SCR 388; S Tirc.th Rani Rajindra Nath v. State of U.P. A.LR. 1973 SC 405 and Govern nient of Andhra Pradesh v. Hindustan Mac/line Tools Ltd. (1975) Supp. SCR 394, referred to.\n\n( 4) Jf any appeal challenging an order of1 assessment is filed beyond the period of lin1itation and the authority is satisfied that the apper.1 could not be filed \"Within limitation for the reason that the Acts of 1959 and 1962 were held to be unconstitutional, the delay in filing the appeal can be con~ cloned under the second proviso to section 12 of the Act of 1968. lf any C appeal fifed for challenging the order of <:-ssessment was withdrawn or not pursued for the reason that the t\"'O Acts were held unconstitutional, the authority concerned can pass appropriate orders reviving the appeal. [719 D-F]\n\nObservation : It is hoped that Ari.\n\n144A introduced by the 42nd Amendment wiJI engage the prompt attention of the Pz..rliament so that it may, by\n\nso that it may, by general consensus, be so amended as to general consensus, be so amended as to leave to the court itself ]) the duty to decide how large a Bench should decide any particular case.\n\nA court which has large arrears to contend with has now to undertake an unnecessary burden by 7 of its members assembling to decide all sorts of oonsri.tutional questions, no matter what their weight or worth.\n\nSince Art. 13(3) (a) of the Constitution defines \"law\" to inc[ude any Ordinance, Order, bye-law, rule, regulation, notification etc. having the force of law, seven Judges of this C.Ourt may have to sit for detennining any al)d every question as to the constitutional validity of even orders and\n\nE. notifications issued by the Government, which have the force of l<JJW.\n\nThis will inevitably cause great inconvenience and undue delay in disposal of cases. f720' C-Dl CIVIL APPELLATE JURISDICTION : c. A. No. 1810 of 1971.\n\n(Appeal by Special Leave from the Judgment and Order dated 1.3.1971 ef the Orissa High Court in O.J.C. No. 1597 of 1968)\n\nAND Ii' C. A. No. 1170 of 1972\n\n(Appeal by Special Leave from the Judgment and Order dated 8.3.1971 9f the Orissa High Court in 0. J.C. No. 316 of 1970)\n\nAND Civil Appeal No. 1981 of 1972 G SAppeal by Special. Leav~ from the Judgment and Order dated ,:08.3.1971 of the Onssa High Court in 0. J. C. No. 1885 of 1968)\n\nAND Civil Appeal No. 1982 of 1972.\n\n(Appeal by Special ~ve !rom the Judgment and Order dated 28.6.1971 of the Onssa High Court in 0. J. C. No. 153 of 1971)\n\nAND Civil Appeal No. 1603 & 1604 of 1972\n\n(Appeal by Special Leave from the Judgment and Order dated 2.3.1971 of the Orissa High Court in O J C Nos 202 rnd 203 of 1969.) . . . . '\n\nA. K. Se11, Bishamber Lal Khanna and Bishamber L\"l for the appellants in CA No: 1810/71.\n\nB A. K.Sen, (CA No. 40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos. 1170, 1981-1982, 1603-1604 of 1972 and CA No. 40172 and in the SLPs Nos. 305-310/72 and for the Interveners.\n\nC G. Rath, Adv. General Orissa and G. S. Chatterjee and R. K. Mehta\n\nfor respondents in CAs 1810, 1170, 1981 1982, 1603-1604 and 40)\n\nThe Judgment. of the court was delivered by\n\nCHANDRACHUD, J.-In 1959, the Orissa Legislature enacted the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Act, 7 of 1959,_ the constitutionality of which was challenged by the appellants on the ground that the Bill leading to the Act was moved without the previous sanction of the President of India, as required by the proviso to Art. 304 of the Constitution. During the pendency of the writ petitions filed by the appellants in the Orissa High Court, the Orissa Legislature passed the Orissa Taxation (on Goods carrieu by Roads or Inland Waterways) Validation Act, 18 of 1962, validating the Act of 1959.\n\nThe High Court accepted the appellants' contention that the Act of 1959 was unconstitutional but it dismissed the Writ petitions on the ground that the appellants were not entitled to any relief as they had not challenged the Act of 1962 which had validated the Act of 1959.\n\nAfter the decision of the High Court, respondent No. 2, the Tax Officer, assessed tax in varying amounts for different quarters on the goods carried by the appellants by road.\n\nThe appellants then filed fresh writ petitions under Art. 226 of the Constitution challenging the Act of 1962.\n\nThose petitions were dismissed by the High Court but in appeal, the judgment of the High Court was set aside by this Court On August 10, 1967.\n\nIt was held by this Court that the Validating Act of 1962 did not cure the defect from which the Act of 1959 suffered and therefore, respondents were not entitled to recover any tax from the appellants under the aforesaid Acts.\n\nOn March 25, 1968 the Orissa Legislature, having obtained the previous sanction of the President to the moving of the Bill, passed the Orissa Taxation (on_ Goods carried by Roads or Inland Waterways) Act, 8 of 1968, imposing the same levy which it had unsuccessfully attempted to levy under th~ Act of 1959 and to validate under the Act of 1962.\n\nSome of the appellants from whom the State Government had recovered taxes after the Act of 1962 was upheld by the High Court asked for refund thereof after tht Act was declared unconstitutional by this Court.\n\nThe refund havmg been refused by the Governments, the appellants filed writ petitions in the High Court\n\n' '\n\nchallenging the validity of the 1968 Act.\n\nThe dismissal of those writ petitions has given rise to these appeals by special leave.\n\nThere is no substance in any of the contentions raised on behalf of the appellants regarding the constitutionality of the Act of 1 %8.\n\nThe bill which matured into the impugned Act was introduced by the Orrrisa Legislature after. obtaining the previous sanction of the President under the Proviso to Art. 304 of the Coustituti(jn. As shown by the Preamble, the Act was passed in order to provide for the lev)1 of tax on certain goods carried by roads or inland waterways in the State of Orissa and to validate certain taxes imposed on such goods.\n\nBy s. ) ( 3), the Act was to be deemed to have come into force on Aprll 27, 1959 being the date on which the Act of 1959 had come into force.\n\nSection 3 of the Act which contains the charging provision provides that there shall be levied a tax on goods of the descriptio11 mentioned in the section and carried by means specified therein.\n\nSection 27 of the Act provides in so far as material that notwithstanding the expiry of the Act of 1959 and notwithstanding anything contained in any judgment, decree or order of any Court, all assessments made; all taxes imposed or realised, any liability incurred or any action taken under the Act of 1959 shall be deemed to have been validly mad~, imposed, realised, incurred or taken under the corresponding provisions of the Act of 1968.\n\nThese provisions of the Act of 1968 show that what the State Legislature did thereby was to enact, with retrospective effect, a fresh piece of taxing statute after complying with the constitutional mandate contained in the proviso to Art. 304 that no Bill tor the purposes of clause (b) of the Article sha 11 be introduced or moved in the Legislature of a State without the previous sanction of the President. ·\n\nThe reliance of the appellants on the judgment of this Court in Jawaharmal v. State of Rajasthan (') is wholly misconceived.\n\nIn that case, s. 4 of the impugned Act of 1964 in truth and substance provided that the failure to comply with the constitutiona I mandate of Presidential sanction shall not invalidate the Finance Acts of 1961 and\n\n1962. It wa1s held by this Court that it was not competent to the legislature to pass an Act providing that an earlier Act shal] be deemed to be valid even though it did not comp:y with the requirements of the Constitution.\n\nIn the instant case, the State Legislature passed an independent enactment in 1968 after complying with the constitutional requirement but it gave to that enactment retrospetive effect from the date that the 1959 Act had come into force and it created a legal fiction, which was permissible for it to do, that all actions taken under the Act of 1959 shall be deemed to have been taken under the Act ot 1968.\n\nMr. Gobind Das, appearing on behalf of some of the apocllants rnised P?int~ commonly associated with high constitutional concepts',\n\nbut lackmg m substance.\n\nHe urged that the Act of 1968 is a piece -of co'.ourable legislation, that it constitutes a flagrant encroachment on\n\n(I) [1966] l S.C.R. 890\n\nthe functions of the judiciary and that since the Act has no operation in futuro and operates only on the dead past, it is void as lacking in legislative competence.\n\nLeame~ counsel also employed the not unfamiliar phrase that the Act is a fraud on the Constitution.\n\nHappily all of these attacks, in so far as they at all require an .answer, -can be n:iet effectively in a brief compass.\n\nIn Khyerbari Tea Co. Ltd. v.\n\nState of Assam('), it was held by this Court that Art. 304(b) of the Constitution does not require that Jaws passed under it must always be prospective.\n\nNor was it correct to say that once the State Legislature passes an Act without recourse lo that Article and that Act is struck down, the Legislature cannot re-enact, that Act under that article and give it retrospective effect.\n\nThe Court further held in Khyerbari (supra) that the mere fact that a validating taking statute has retrospective operation does not change the character of the tax nor can it justify the Act being branded as a colourable piece of legislation in any sense.\n\nWe may only add that since it is well-settled that the power to legislate carries with it .the power to legislate retrospectively as much as prospectively, the circumstance that an enactment operates entirely in the past and has no prospective .Jife cannot effect the competence of the legislature to pass the enactment, if it falls within the list on which that competence can operate.\n\nAs regards the power to pass a validating Act, that power is essentially subsidiary to the legislative competence to pass a law under an appropriate entry of the relevant list.\n\nThus the impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Constitution.\n\nAs regards the alleged encroachment by the legislature on fields judicial, the argument overlooks that the Act of 1968 does not, like the Act under consideration in Jawaharmal( 2 ), declare that an invalid Act shall be deemed to be valid. It cures the constitutional vice from which the Act of 1959 suffered by obtaining the requisite sanction of -the President and thus armed, it imposes a new tax, though with retrospective effect. Imposition of taxes or validation of action ta1<en\n\nunder void laws is not the function of the judiciary and therefore, by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary.\n\nCourts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjuring up trespasses for invalidating laws.\n\nThere is a large volume of authority showing that if the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirements, the legislature has the competence to validate the enactment and such validati<Jn does not constitute an encroachment on the functions of the judiciary. The validity of a validating taxing law depends upon whether the legislature possesses the competence over the subject-matter of the law, whetl1er in making the validation it has removed the defect from which the earlier i; nactment suffered and whether it has made due and adequate provision in the validating .Jaw for a valid imposition of tlie tax. ( See, for example Prithvi Cotton Mills v._ Broach Borough Municipality('!;\n\n(1)\n\n[19641 5 S.C.R. 975 (3)\n\n\n(2) [196611 S.C.R. 890-\n\nTira th Ram Rajindra Nath v. State of U.P. ('); Government of Andhra Pradesh v. Hindustan Machine Tools Ltd.('). The passage from Cooley's Constitutional Limitations' (Ed. 1927, Vol. I, p. 183) that a legislative act is a \"pre--Oetermination of what the law shall be for the regulation of all future cases falling under its provisions\" does not bear upon the power of the legislature to pass laws which are exclusively retrospective. Mr. Gobind Das's reliance on that passage cannot therefore further his contention.\n\nMr. Gokhalc, who appears on. behalf of some of the appellant~, attempted to challenge the Act of 1968 on the ground of unreasonableness but he did not pursue that argument.\n\nBut he made another point which requires some attention.\n\nThe appellants, or some of them, did not challenge the orders of assessment passed against them as the Acts of 1959 and 1962 were held unconstitutional.\n\nCounsel's apprehension is that any appeal filed hereafter for'thallenging the assessment made under the earLer Acts would be barred by litnltation and the appellants would be deprived of their statutory right to question the correctness of the assessment.\n\nThis apprehension is unfounded because the 2nd proviso to s. 12 of the Act of 1968 empowers the appro- . priate authority to admit an appeal after the period of limitation is over if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the said period. Sub-section (3) confers on the Commissioner the power of revision and sub-section ( 4) of s. 12 confers the power of review subject to the rules made under the Act.\n\nWe have no doubt that if any appeal challenging an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limitation for the reason that the Acts of 1959 and 1962 were held to be unconstitutional, the delay in filing the appeal would be condoned.\n\nWe are eqnally confident that if any appeal filed for challenging an order of assessment was withdrawn or not pursued for the reason that the two Acts were held nnconstitutional, the authority concerned would pass appropriate orders reviving the appeal.\n\nWe are happy to note the assurance of the learned Advocate-General of the State of Orissa that the State wiU not oopose in such cases the condonation of delay or the revival of appeals. For these reasons we dismiss the appeals but there will be no order as to costs.\n\nThe Special Leave Petitions which were kept pending to await the decision of these appeals are hereby dismissed.\n\nWe may take this opportunity to dwell njlon the inconvenience G resulting from the enactment of art. 144A which was introduced by the 42nd Amendment to the Constitntion.\n\nThat article reads thus :\n\n\" \"Special provisions as to disposal of questions relating to Constitutional validity of laws.\n\n(I), A.I.R. (1973) S.C. 405.\n\n(2) (!975] S•ipp S.C.R. 394.\n\n\"144A (1) The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the Constitutional validity of auy central law or State law shall be seven.\n\n(2) A Central law or a State law shall not be declared to be coustitiltionally invalid by the Supreme Court unless. a majority of not less than two-thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid.\" \"\n\nThe points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr.\n\nGokhale who appear for the appellants could say nothing in support of their contentions beyond barely stating them. Were it not for the valiant, though vain, attempt of Mr. Gobind Das to pursue his points, the appeals would have taken lesser time to dispose of than for a Court of seven to assemble.\n\nArticle 13(3) (a) of the Constitution defines \"hw\" to include any Ordinance, Order, bye-law, rule, regulation, notification etc. having the force of law with the result that seven D judges of this Court may have to sit for determining any and every question is to. the constitutional validity of even orders and notifications issued by the Government, which have the force of Jaw.\n\nA Court which has large arrears to contend with has now to undertake an unnecessary burden by seven of its members assembling to decide all sorts of constitutional questions, no matter what their weight or worth. It is hoped that Art. 144A will engage he prompt attention E of the Parliament so that it may, be general consensus, be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case.\n\nS.R.\n\nAppeals dismissed.", "total_entities": 63, "entities": [{"text": "MISRILAL JAIN ETC. ETC", "label": "PETITIONER", "start_char": 23, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "MISRILAL JAIN ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF ORISSA & ANOTHER", "label": "RESPONDENT", "start_char": 53, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA & ANOTHER", "offset_not_found": false}}, {"text": "M. H. BEG, C.J.", "label": "JUDGE", "start_char": 111, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 128, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI", "label": "JUDGE", "start_char": 201, "end_char": 221, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "KAILASAM, JJ.", "label": "JUDGE", "start_char": 233, "end_char": 246, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Sections 3 and 27", "label": "PROVISION", "start_char": 327, "end_char": 344, "source": "regex", "metadata": {"statute": null}}, {"text": "10-8~1967 as", "label": "DATE", "start_char": 587, "end_char": 599, "source": "ner", "metadata": {"in_sentence": "The Orissa Taxation (On goods carried by Roads or Inland Waterways) Act 7 of 1959 and the Orissa Taxation (On Goods carried by Road or Inland Waterways) Validation Act 18 of 1962 were struck down by this Court on 10-8~1967 as invalid and it was held that the respondents were not entitled tQ recover any tax from the appellants under the &foresaid Acts."}}, {"text": "March 26, 1968", "label": "DATE", "start_char": 732, "end_char": 746, "source": "ner", "metadata": {"in_sentence": "On March 26, 1968, the Orissa Taxation (On Goods carried by Roads or Inland Waterways) Act 8 of 1968 was passed after obtaining the previoussanction of the President under Art."}}, {"text": "Art. 304", "label": "PROVISION", "start_char": 901, "end_char": 909, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1(3)", "label": "PROVISION", "start_char": 1097, "end_char": 1109, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 1256, "end_char": 1266, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 1879, "end_char": 1896, "source": "ner", "metadata": {"in_sentence": "The claims of some of the appellants who had E asked for refund of the tax collected under the Act of 1962 which was held unconstitutiona.1, having been refused by the Government, they filed wTit petitions in the Orissa High Court challenging the validity of the 1968 Act."}}, {"text": "[1964] 5 S.C.R. 975", "label": "CASE_CITATION", "start_char": 2768, "end_char": 2787, "source": "regex", "metadata": {}}, {"text": "[1970] 1 SCR 388", "label": "CASE_CITATION", "start_char": 3999, "end_char": 4015, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 4526, "end_char": 4536, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 13(3)", "label": "PROVISION", "start_char": 5360, "end_char": 5370, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K. Se11", "label": "LAWYER", "start_char": 6654, "end_char": 6664, "source": "ner", "metadata": {"in_sentence": "A. K. Se11, Bishamber Lal Khanna and Bishamber L\"l for the appellants in CA No: 1810/71."}}, {"text": "Bishamber Lal Khanna", "label": "LAWYER", "start_char": 6666, "end_char": 6686, "source": "ner", "metadata": {"in_sentence": "A. K. Se11, Bishamber Lal Khanna and Bishamber L\"l for the appellants in CA No: 1810/71.", "canonical_name": "Bishamber Lal Khanna"}}, {"text": "Bishamber L\"l", "label": "LAWYER", "start_char": 6691, "end_char": 6704, "source": "ner", "metadata": {"in_sentence": "A. K. Se11, Bishamber Lal Khanna and Bishamber L\"l for the appellants in CA No: 1810/71.", "canonical_name": "Bishamber Lal Khanna"}}, {"text": "B A. K.Sen", "label": "LAWYER", "start_char": 6744, "end_char": 6754, "source": "ner", "metadata": {"in_sentence": "B A. K.Sen, (CA No."}}, {"text": "H. R. Gokhale", "label": "LAWYER", "start_char": 6771, "end_char": 6784, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "B11oy Mohen", "label": "LAWYER", "start_char": 6864, "end_char": 6875, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "Sunanda Bhandare", "label": "LAWYER", "start_char": 6885, "end_char": 6901, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "M. S. Narsimlwn", "label": "LAWYER", "start_char": 6903, "end_char": 6918, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "A. K.\n\nMathur", "label": "LAWYER", "start_char": 6921, "end_char": 6934, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "A. K. Sharma", "label": "LAWYER", "start_char": 6936, "end_char": 6948, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "Malini Poduval", "label": "LAWYER", "start_char": 6958, "end_char": 6972, "source": "ner", "metadata": {"in_sentence": "40/72) H. R. Gokhale (CAs 1603-1604) G?_bmd Das (CAs 1170, 198, 1982, SLPs and for the interveners) B11oy Mohen(>', Mrs. Sunanda Bhandare, M. S. Narsimlwn,\n\nA. K.\n\nMathur, A. K. Sharma and Miss Malini Poduval for the appellants in CA Nos."}}, {"text": "C G. Rath", "label": "LAWYER", "start_char": 7113, "end_char": 7122, "source": "ner", "metadata": {"in_sentence": "C G. Rath, Adv."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 7148, "end_char": 7164, "source": "ner", "metadata": {"in_sentence": "General Orissa and G. S. Chatterjee and R. K. Mehta\n\nfor respondents in CAs 1810, 1170, 1981 1982, 1603-1604 and 40)\n\nThe Judgment."}}, {"text": "R. K. Mehta", "label": "LAWYER", "start_char": 7169, "end_char": 7180, "source": "ner", "metadata": {"in_sentence": "General Orissa and G. S. Chatterjee and R. K. Mehta\n\nfor respondents in CAs 1810, 1170, 1981 1982, 1603-1604 and 40)\n\nThe Judgment."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 7292, "end_char": 7303, "source": "ner", "metadata": {"in_sentence": "of the court was delivered by\n\nCHANDRACHUD, J.-In 1959, the Orissa Legislature enacted the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Act, 7 of 1959,_ the constitutionality of which was challenged by the appellants on the ground that the Bill leading to the Act was moved without the previous sanction of the President of India, as required by the proviso to Art."}}, {"text": "Orissa Legislature", "label": "PETITIONER", "start_char": 7321, "end_char": 7339, "source": "ner", "metadata": {"in_sentence": "of the court was delivered by\n\nCHANDRACHUD, J.-In 1959, the Orissa Legislature enacted the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Act, 7 of 1959,_ the constitutionality of which was challenged by the appellants on the ground that the Bill leading to the Act was moved without the previous sanction of the President of India, as required by the proviso to Art."}}, {"text": "Art. 304", "label": "PROVISION", "start_char": 7641, "end_char": 7649, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Legislature", "label": "ORG", "start_char": 7767, "end_char": 7785, "source": "ner", "metadata": {"in_sentence": "During the pendency of the writ petitions filed by the appellants in the Orissa High Court, the Orissa Legislature passed the Orissa Taxation (on Goods carrieu by Roads or Inland Waterways) Validation Act, 18 of 1962, validating the Act of 1959."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8424, "end_char": 8432, "source": "regex", "metadata": {"statute": null}}, {"text": "August 10, 1967", "label": "DATE", "start_char": 8609, "end_char": 8624, "source": "ner", "metadata": {"in_sentence": "Those petitions were dismissed by the High Court but in appeal, the judgment of the High Court was set aside by this Court On August 10, 1967."}}, {"text": "March 25, 1968", "label": "DATE", "start_char": 8859, "end_char": 8873, "source": "ner", "metadata": {"in_sentence": "On March 25, 1968 the Orissa Legislature, having obtained the previous sanction of the President to the moving of the Bill, passed the Orissa Taxation (on_ Goods carried by Roads or Inland Waterways) Act, 8 of 1968, imposing the same levy which it had unsuccessfully attempted to levy under th~ Act of 1959 and to validate under the Act of 1962."}}, {"text": "Some of the appellants from whom the State Government had recovered taxes after the Act", "label": "STATUTE", "start_char": 9203, "end_char": 9290, "source": "regex", "metadata": {}}, {"text": "Art. 304", "label": "PROVISION", "start_char": 9955, "end_char": 9963, "source": "regex", "metadata": {"linked_statute_text": "Some of the appellants from whom the State Government had recovered taxes after the Act", "statute": "Some of the appellants from whom the State Government had recovered taxes after the Act"}}, {"text": "Orissa", "label": "GPE", "start_char": 10142, "end_char": 10148, "source": "ner", "metadata": {"in_sentence": "As shown by the Preamble, the Act was passed in order to provide for the lev)1 of tax on certain goods carried by roads or inland waterways in the State of Orissa and to validate certain taxes imposed on such goods."}}, {"text": "Aprll 27, 1959", "label": "DATE", "start_char": 10269, "end_char": 10283, "source": "ner", "metadata": {"in_sentence": "By s. ) ( 3), the Act was to be deemed to have come into force on Aprll 27, 1959 being the date on which the Act of 1959 had come into force."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 10346, "end_char": 10355, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 27", "label": "PROVISION", "start_char": 10542, "end_char": 10552, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 304", "label": "PROVISION", "start_char": 11220, "end_char": 11228, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 11539, "end_char": 11543, "source": "regex", "metadata": {"statute": null}}, {"text": "Presidential sanction shall not invalidate the Finance Act", "label": "STATUTE", "start_char": 11667, "end_char": 11725, "source": "regex", "metadata": {}}, {"text": "Court that it was not competent to the legislature to pass an Act providing that an earlier Act", "label": "STATUTE", "start_char": 11767, "end_char": 11862, "source": "regex", "metadata": {}}, {"text": "Gobind Das", "label": "OTHER_PERSON", "start_char": 12378, "end_char": 12388, "source": "ner", "metadata": {"in_sentence": "Mr. Gobind Das, appearing on behalf of some of the apocllants rnised P?int~ commonly associated with high constitutional concepts',\n\nbut lackmg m substance."}}, {"text": "Art. 304(b)", "label": "PROVISION", "start_char": 13145, "end_char": 13156, "source": "regex", "metadata": {"statute": null}}, {"text": "Khyerbari", "label": "OTHER_PERSON", "start_char": 13505, "end_char": 13514, "source": "ner", "metadata": {"in_sentence": "The Court further held in Khyerbari (supra) that the mere fact that a validating taking statute has retrospective operation does not change the character of the tax nor can it justify the Act being branded as a colourable piece of legislation in any sense."}}, {"text": "Jawaharmal", "label": "OTHER_PERSON", "start_char": 14586, "end_char": 14596, "source": "ner", "metadata": {"in_sentence": "As regards the alleged encroachment by the legislature on fields judicial, the argument overlooks that the Act of 1968 does not, like the Act under consideration in Jawaharmal( 2 ), declare that an invalid Act shall be deemed to be valid."}}, {"text": "Gokhalc", "label": "OTHER_PERSON", "start_char": 16667, "end_char": 16674, "source": "ner", "metadata": {"in_sentence": "Mr. Gokhalc, who appears on.", "canonical_name": "Gokhalc"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 17364, "end_char": 17369, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 17686, "end_char": 17691, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Orissa", "label": "GPE", "start_char": 18418, "end_char": 18433, "source": "ner", "metadata": {"in_sentence": "We are happy to note the assurance of the learned Advocate-General of the State of Orissa that the State wiU not oopose in such cases the condonation of delay or the revival of appeals."}}, {"text": "art. 144A", "label": "PROVISION", "start_char": 18822, "end_char": 18831, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 19126, "end_char": 19139, "source": "ner", "metadata": {"in_sentence": "\"144A (1) The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the Constitutional validity of auy central law or State law shall be seven."}}, {"text": "Asoke Sen", "label": "OTHER_PERSON", "start_char": 19781, "end_char": 19790, "source": "ner", "metadata": {"in_sentence": "The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr.\n\nGokhale who appear for the appellants could say nothing in support of their contentions beyond barely stating them."}}, {"text": "Gokhale", "label": "OTHER_PERSON", "start_char": 19800, "end_char": 19807, "source": "ner", "metadata": {"in_sentence": "The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr.\n\nGokhale who appear for the appellants could say nothing in support of their contentions beyond barely stating them.", "canonical_name": "Gokhalc"}}, {"text": "Article 13(3)", "label": "PROVISION", "start_char": 20101, "end_char": 20114, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 144A", "label": "PROVISION", "start_char": 20713, "end_char": 20722, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 20764, "end_char": 20774, "source": "ner", "metadata": {"in_sentence": "144A will engage he prompt attention E of the Parliament so that it may, be general consensus, be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case."}}]}
{"document_id": "1977_3_721_734_EN", "year": 1977, "text": "t .\n\n!TZI\n\nCONTROLLER OF ESTATE DUTY MADRAS\n\nALLADI KUPPUSWAMY\n\nMay 3, 1977\n\n[P, N, BHAGWATI, N, L. UNTWALIA ANIJ S. MURTAZA FAZAL ALI, JJ.I\n\n£.state Duty Act, 1953-Sections 7(1) and (2) and 39-Scope of.\n\nHindu Joint Fan1ily-Death of coparcener-Nature of interest of widow--Widow not claiminK partition during the life time-Death of widow--\n\nWhether interc5t in joint fan1ily prop:erty passes-Liability to estate dutyfatate Duty Act, 1953, SS,, 5, 6, 7(1), 39, 40(a) and (b)-Hindu Women's\n\nSiglu.1 tc I'roperty Act, 1937, Section 3(2).\n\nConstruction of fiscal statutes-Duty of the court-Legislative intent reflected in the Acts must be given full effect to.\n\nSbri Anadi wa~ a member of the Hindu coparcenary consisting of hl1nself, his wife (Smt. Alladi) and three sons.\n\nShri Alladi who died before the Estate Duty Act 1953 came into force, during his life time had settled certain properties absolutely on his wife and had also declared certain other properties to form part of the joint family properties. Smt. Alladi died on January 5, 1956, a fev.' months before the passing of the Hindu Sucession Act, 1956.\n\nThe Assistant Controller of Estate Duty valued her estate at a total amount of Rs. 7,25,527 /- including a sum of Rs. 2,02,271 /- being the value of her I/4th share in the joint family properties, on the footing that as Smt. AUadi was a member of the Hindu coparcenary, her interest in the joint family properties passed on her death to the other three sons and the value of this interest being l I 4th, the heirs would be liable to pay estate duty on the value of the I /4th. share.\n\nThe respondent filed an appeal before the Central Board of Revenue OJ.nd <..:ontended that as Smt. Allacli died as a Hindu widow she possessed no coparcenary interest which could pass on her death; her interest merged without any benefit accruing or arising to the coparceners and hence section 7 subsection ( 1) had no application. This plea did not find favour with the Board which upheld the order of the Assistant Controller of Estate Duty as correct.\n\nThe Board further held that the Hindu widow's estate created by s. 3(2) of the ffindu WidO\\VS Rights to Property Act, 1937, wa-s an interest in property-- which cef<sed on the death of the widow attracting estate duty. Thereupon, the respondent moved the Board to make reference to he High Court of Madras for decision of the questions of law involved in the case.\n\nThe Board referred three questions to the High Court under section 64(1) of the Act, but at thei time of the hearing of the reference, the respondent confined his arguments only to the following issue, namely \"Whether on the facts and in the circurristances of the case 1/ 4th share of the deceased in the joint family properties to which she was entitled under s. 3 of the Hindu Womens Rights to Property Act, 1937, was correctly included in her estate as property deemed to pass on her death under s. 7 of the Estate Duty Act, 1953.\" The High Court relying on the decisions of the Privy Council in Attorney General of Cey/011 v. Arunachalani Chettiar (1957) AC 513 and Gartside v. Inland Revenue Comn1issio11ers 1968 AC 553 held that the interest of Smt. A11adi was not a coparcenary interest which could have passed under s. 7(1) of the Act and as the said interest was incapable of .valuation, it was not exigible to estate duty and thus held against the Revenue and in favour of the .accountable person.\n\nAllowing the appeal by certificate, the Court,\n\nHELD: (I) By virtue of the provisions of the Act of 1937 aHindu widow undoubtedly p-05sess a coparcenary jnterest as contemplated by s, 7 (I l of the Act and she is also a member of the Hindu coparenary as envisad by ,, 7 (2) of the Act f734 Bl\n\n(2) Prior to the passing of the Act of 1937 a Hindu Woman had no right A t>r interest at all in a Hindu coparcenary. The Act of 1937 bettered the rights of a Hindu widow and conferred on her by s. 3 th;: same interest as possessed hy her husband. [727 A]\n\n(3) The words \"the same interest as he himself had\" in sub-section (2) of s. 3 of the Act of 1937 clearly indicate that the statute gave effect to the well-settled doctrine of Hindu shastric law that the persona of the husband after his death continues through his wife who is a surviving half and the B husband continues to live through the widow so long as the widow is alive.\n\nWhen the Legislature used the expression \"the same interest as he himself had\",\n\nit would include all the rights possessed by the husband which could devolve Qn the wife. Thus, a Hindu widow was introduced for the first time into the Hindu coparcenary having the same rights as her husband and became as it were a member of the Hindu coparcenary with two qualifications, namely, (i) she had only a limited interest and (ii) that she could not be a coparcener because having regard to the nature of her entry into the family after marriage with her husband, there was no question of her getting interest in the Hindu C coparcenary bv birth which is one of the most important incidents of a Hindu <:Oparcenary. [727 D-EJ\n\n( 4) The essence of coparcenary property is the unity of ownership which is vested in the whole bcxly of coparceners and the two principal incidents of coparcenary are that the interest of coparceners devolve by survivorship and not by inheritance and that the male issue of a_ coparcenary acquires an interest in the coparcenary property by birth and not as representing his father. [729 D-El D\n\n(5) A Hindu coparcenary has six essential characteristics, namely, (i) that the lineal male descendants upto the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (ii) that the members of the coparcenary have the right to work out their rights by demanding partition; (iii) that until partition, each membe:r; has got ownership extending over the entire property jointly with the rest and so long as no parti\n\ntion takes p1ace it is difficu1t for any coparcener to predicate the share which he might receive; (iv) that as a result of such co-ownership the possession and E enjoyment of the property is common; (v) that there can be no alienation of the propertv without the concurrence of the other coparceners unless it be for legal necessity and (vi) that the interest of a deceased member lapses on his death and merges in the coparcenary property.\n\nApplying these tests to the interest of a Hindu widow who has been introduced into a cooarcenarv by virtue of the Act of 1937, it will be seen, that short of the first condition she possesses all the necessary indicia of a cooarcenary interest.\n\nThe fact that before the Act of 1956 she had the characteristic of a widow estate in her interest in the prooerty does not detract any the less from this -position. There F fore, though a Hindu widow cannot be a copa\"rcener she has cooarcenary interest and is also a member of the conarcenarv bv virtue of the rights con ferred on her under the Act of 1937.\n\n[731 F-H, 732 A-B-D)\n\nState Bank of India v. Ghan1andi Ram (dead) through Shri G1irbax Rai [1969] 3 SCR 681- 686. applied.\n\n(6) If the widow has not chosen to exercise her right of partition, there is no severence of the Hindu coparcenary and on her death the interest of the widow merges in the coparcenary property or lapse.s to the other co. parceners.\n\nParappagari Parappa alias Han1nuutthappa and Anr. v. Parappagari Naganzan and Ors. ILR 1954 Madras 183; S. T. Sabujpari and Anr. v. SatruRhan lsser and\n\nOrs. AIR 1958 Patna 405, 410 and Mst. Khatrani Kuer v .. S1nt. Tapeslnvari Kuer AIR 1964 Pat. 261, approved.\n\n(7) It was not the intent of the legislature which was fully aware of the statutory interest conferred on a H:ndu widow bv virtue of the Act of 1937 and the incidents thereof that though a Hindu widow has got the same interest as her husband in the Hindu coparcenary and has also the right to demand\n\n!!!\n\n.. • •\n\nOONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazill Ali, J.) 7 23\n\npartition and her interest is a fluctuating one would lapse to the other coparceners in case of her death without seeking partition in the same manner as that of other coparceners, yet it should be exempt from estate duty. In the instant case, Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death ap.d merged into the coparcenary, It was clearly capable of valuation, it being covered by s. 39 of the Act. Th;: High Court was in error in basin2 its decision on the Arunachalam Chettiar's case and also in Gartside's case ignoring the :decisions of this Court and also the peculiar and special provisions of tho Act. [732 F, 733 A-C]\n\nAttorney-General of Ceylon v. Arunchalam Chettiar (1957)\n\nAC 513= 34 ITR (E.D.) 20 and Gartside v. Inland Revenue Commissioners (1968) AC 553=70 ITR 663 (H.L.) held inapplicable.\n\n(8) It is wrong to contend that the widow could not be treated either a•\n\na member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the wido\\v is not coparcener in the C itrictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her bys. 3(3) of the Act of 1937, namely, that her interest would be limited interest, of a Hindu widow. In the instant case, Smt. Alla di possieiied a coparcenary interest which lapsed on her death and merged into the coparcenary and was clearly covered by the inclusive part of sub-s. (1) of s. 7 and under s. 39, the value of the benefit accruing or arising from the cesier of the coparcenary interest was to be determined by taking the principal value of the share and the joint family property which would have been allotted D tQ -~ had there been partition immediately before her death. The present\n\ncse squarely falls within the ambit of s. 7(1) latter part and sub-s. (2) of s. 7 of the Act which attracts s. 39. By reason of the inclusive part of su_b-s. (1) of s. 7 it must be taken to have passed on her death and was hence exigib!e to estate duty. [733 D-G] ·\n\n(9) When the phraseology of a particular section of the statute takes within itS sweep the transaction which is taxable, it is not for the court to strain and stteiS the language of the section so as to enable the tax-payer to escape the tax.\n\nThe .legislative intent reflected in the Act of 1937 and Estate Duty Act, 1953, must be given full effect to. [733 H, 734 Al\n\nClvIL APPELLATE JURISDICTION : Civil Appeal No. 2003/71\n\n(From the Judgment and Order dated 5-12-1969 of the Madras High Court in Tax-Case No. 40 of 1965)\n\nS. T. Desai, P. L. Juneja and R. N. Sachthey, for the appellant.\n\nG. Ve11katarama Sastry, K. R. Ramamani and J. Ramiimurthi for the respondent.\n\nThe Judgment of the Court was delivered by\n\nFA7-AL Au, J.-This appeal by certificate is directed against a Full Bench judgment of the Madras High Court dated December 5 1969- Alladi Kuppuswami v. Controller of Estate Duty, Madra~(')-by which the reference made to the High Court by the Central Board of Revenue was answered in favour of the accountable person and against the Revenue.\n\nThe case involves an interesting and important question of law in respect of ambit and scope of ss. 7(1) & (2) as also 39 of the\n\n(I) 76 !. T. R. 500\n\n7-707SCI/77\n\nA .Estnte Duty Act, 1953-hereinafter referred to as 'the Act'.\n\nI In order • to decide the question of law arising in the appeal, it may be necessary to set out briefly the facts of the case.\n\nSri Alladi Krishnaswami Iyer died some time before the passing of the Estate Duty Act, 1953, but ' during his life time he had settled certain properties absolutely on hfa I wife smt. Alladi Venkatakshmamma-to be referred in short as 'Sm!. • Alladi'-and be had also declared certain other properties to from part B of the joint family properties.\n\nSri Alladi Krishnaswami Iyer-hereafter to be referred to as \"Sbri Alladi\" was a member of the Hindu coparcenary consisting of himself, his wife and three sons.\n\nIn the instant case we are only concerned with the joint family properties left by Shri Alladi.\n\nSmt. Alladi died on January 5, 1956 a few months before the passing of the Hindu Succession Act,. 1956 and the Assisc tant Controller of Estate Duty valued her estate at a total amount of Rs. 7,25,527 including a sum of Rs. 2,02,271 being the value of her • Hh share in the joint family pr(\\]lerties. The dispute in the present case centres round the inclusion of the aforesaid sum of Rs. 2.02,2711-. 'Ibe Revenue assessed the estate duty on the footing that as Smt.\n\nAlladi was a member of the Hindu coparcenary her interest in the joint famil) properties passed on her death to the other three sons and the '1alue of this interest being ! 14th the heirs would be liable to pay estate D duty on the value of the !/4th share assessed at Rs. 2,02,271/-. Tile accountable persons raised several contentions before the Revenue ineluding the question as to whether or not the Act would apply to agricultural lands as also whether interest on certain fixed deposits in Government securities would be assessable under the Act.\n\nIt appears, however, that before the High Court the respondent pressed only the\n\nE question relating to the inclusion of the value of 1I4th share of Smt.\n\nAlladi valued at Rs. 2,02,2711-. The respondent filed an appeal before the Board and contended that as Smt. Alladi died as a Hindu widow .. she possessed no coparcenary interest which could pass on her death : her interest merged without any benefit accruing or arising to the coparceners and hence s. 1 sub-s. (1) had no aoplication.\n\nThe plea taken by the respondent did not find favour with the Central Board\n\nF of Revenue which upheld the order of the Assistant Controller of Estate Duty.\n\nThereupon the re;-pondent moved the Board of Revenue to make a ieference to the High Court of Madras for decision of the questions of Jaw involved in the case.\n\nThe Board accordingly referred the following questions to the High Court :\n\nG \"1. Whether on the facts and in the circumstances of the case one-foh share of the deceased in the joint family • propertis, to which she was entitled under section 3 of the Hindu Women's Rihts to Property Act, 1937, was correctly tii included in her estate as property deemed to pass on her dtath under section 7 of the &tate Duty Ac~ 1953?\n\n2. Whether the Estate Duty Act, 1953, in so far as it ,\n\nseeks to levy duty on agricultural lands, is ultra vires of the legislative powers of the Union Legislature ? '\n\n'-, ;·.<;\n\n.CONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazal Ali, J.)' 725\n\n 3. Whether, on the facts and in the circumstances of the case, the accrued interest on fixed deposits and Govermuent securities up to the date of death of the deceased was correctly included in her estate under section 34(2) of the Estate Duty Act, 1953 ?\n\nAlthough three questions had been referred to the High Court by the\n\nHuard, at the hearing of the appeal the respondent gave up questions Nos. 2 and 3 and confined his arguments only to question No. 1 whicb falls for determination in this case.\n\nThe High Court, relying mainly on lhe decisions of the Privy Council in Attorney-General of Cey/011\n\nv. Arw1achalam Chettiar;(') and Ganside v. Inland Revenue: Commissioners(') came to the conclusion that the interest of Smt. Alladi wa, not a coparcenary interest which could have passed under s. 7 ( l) of the Act and as the said interest was incapable of valuation wns\n\nnnf exigible to estate duty.\n\nThereafter the appe:Jant applied to the High Court for granting a certificate of fitness for leave to appeal to this Court and the same having been granted the appeal has now been placed before us for hearing.\n\nThe respondent reiterated his contentions before us and submitted that s. 7 ( 1) of the Act had no applicat'on to the facts of the present case, and therefore, the share of Smt. Alladi was not exigible to estate ducy.\n\nThe appellant, however, submitted that a Hindu widow had a coparcenary interest in the joint family properties which could be valued on the basis of the factors enumerated in s. 39 of the Act, the High Court was in error in holding that the interest of Smt. Alladi was not capable of any valuation.\n\nThe appellant, therefore, submitted that the High Court had not correctly appreciated the legal nature and character of the interest of the Hindu widow conferred on her by virtue of the Hindu Women's Rights to Property Act, 1937.\n\nIn our opinion the answer to the problem would naturally lie in a correct interpretation of ss. 7(1) & (2) of the Act as also on a true construction of s. 3 (2) of the Hindu Women's Rights to Property Act, 1937 as amended by Act 11 of 1938. It is true that while this Court has had occasions to interpret the provisions of the Hindu Women's Rights to Property Act, 1937-hereafter referred to as 'the Act of 1937'-on several occasions, yet the exact point which arises in this case has not yet been determined by this Court. In ordeic to understand the implications of the arguments advanced by counsel for the parties before us. it may be necessary to extract the relevant provisions of the Act as also of the Act of 1937. Section 7 sub-ss. (I) &\n\n(2) of the Act run thus :\n\n\"7. Interests ceasing on death,-\n\n(!) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasin!! on the death of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues H\n\n(1) (1957) A. C. 513-34 I. T. R. (E.D.) 20\n\n{2) (1968) A.C5·53-70 I.T.R. 663 (H. L.)\n\nA or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara Marumakkattayam or Aliyasantana Jaw. '\n\n(2) If a member of a Hindu coparcenary governed by the Mitakshara school of law dies, then the provisions of B su!Hection ( 1) shall apply with respect to the interest of the deceased in the coparcenary property only :-\n\n(a) if the deceased had completed his eighteenth year at the time of his death, or\n\n(b) where he had not completed his eighteenth year at the time of his death, if his father or other male ascendant in the male line was not a coparcener of the same family at the time of his death.\"\n\nIt would be seen that s. 7 ( 1) consist of two parts-the first part refers to the interest of the deceased which ceases on his death and accord- . iil~ to this part two conditions are necessary before there is a passing of the interest-(!) that there mnst be a cesser of the interest by virtue of the death of the deceased; and (2) that as a result of such cesser a benefit accrues or arises.\n\nThe second part of sub-s. ( 1 ) contains an inclusive category which brings within the fold of sub-s. ( 1) a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara. Marumakkattayam or Aliyasantana Jaw.\n\nIn the instant case, we are mainly concerned with the Mitakshara Jaw.\n\nWe might dispose of a short argument advanced by Mr.\n\nS. T. Desai in support of the appeal on this question.\n\nIt was submitted that the words \"governed by the Matakshara, Marumakkattayam or A/iyasantana law\" clearly show that the coparcenary interest . has been used in a wide sense and cannot be restricted to the strict coparcenary interest known to the M itakshara law alone. In the view which we take in this case, however, it is not at all necessary to go into this point.\n\nThe main question for determination is as to whether the interest acquired by a Hindu widow under the Act of 1937 can be said to be a coparcenary interest in the legal sense of the term.\n\nOnce a Hindu widow is held to have a coparcenary interest, then there would be no difficulty in treating her as a member of the Hindu coparcenary, in which case her interest could be easily valued according to the relevant provision of s. 39 of the Act which runs thus:\n\n\"39. (!) The value of the benefit accruing or arising from the cesser of a coparcenary interest in any joint family property governed by the Mitakshara school of a Hindu law which ceases on the death of a member thereof shall be the principal value of the share in the joint family property which would have been allotted to the deceased had there H been a partition immediately before his death.\"\n\nIn order to understand the content and character of the interest which a Hindu widow gets by virtue of the statutory provisions contained in\n\nCONTROLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Faziil Ali,!.) 72 7\n\nthe Act of 1937 there can be no doubt that prior to the passing of the Act of 1937 a Hindu woman had no right or interest at all in a Hindu coparcenary.\n\nShe was neither a coparcener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance.\n\nShe also had no right to demand partition of the coparcenary property after the death of her husband.\n\nThe Act of 1937 introduced broad and important changes by bettering the rights of a Hindu widow and conferring on her the same interest as possessed by her husband.\n\nSub-sections (2) and (3) of s. 3 of the Act of 1937 run thus :\n\n\"(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provi- C sions of sub-section (3), have in the property the same interest as he himself had.\" ,\n\n\"(3)Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male D owner.\n\nThe words \"the same interest as he himself had\" in sub s, (2) of s, 3 of the Act of 1937 clearly indicate that the statute gave effect to the well settled doctrine of Hindu Shastric Law that the persona of the husband after his death continues through his wife who is the surviving half of the husband and the husband continues to live through the widow so long as the widow is alive. It was this concept of the Hindu E Law which was sought to be recognised and given effect to by the Act of 193 7. In these circumstances, therefore, when the Legislature used the expression \"the same interest as he himself had\" it would include all the bundle of rights possessed by the husband which would devolve on the wife and if there were to be any !imitations on thooc rights they were spelt out by sub-s. (3) itself, namely, that while the Hindu widow would have the same right and interest as her husband, F her interest would only be the limited interest known as a Hindu Woman's estate. Sub-section (2) of s. 3 of the Act of 1937 further conferred on the widow the right to demand partition and on partition she was entitled to get the same share as her husband. Thus the position appears to be that a Hindu widow was introduced for the first time into the Hindu coparcenary having the same rights as her husband and became as it were a member of the Hindu coparcenary with two G qualifications, viz., ( 1) that she had only a limited interest; and (2) that she could not be a coparcener because having regard to the nature of her entry into the family after marriage with her husband there was no question of her getting interest in the Hindu coparcenary by birth which is -me of the most important incidents of a Hindu coparcenary.\n\nAll the other rights of a coparcener were duly conferred on her by the Act of 1937. , .\n\nDwelling on the conten{ and import of the nature of the interest <lf a Hindu widow this Court pointed out in laisri Sahu v. Rajdewan\n\nDubey & Others(') that on the death of her husband the. properties vested in the widow and she fully represented the estate.\n\nIn this connection, this Court made the following observations :\n\n\"When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her.\n\nShe fully represents the estate, the interest of the reversioners therein being only spes succession's. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for _the benefit of revers_ioners but is an incident of the estate as known to Hindu law.\"\n\nSimilarly in a later case in Potti Lakshmi Perumallu v.\n\nPatti KrisJ, navenamma(2 ) this Court reiterated that a Hindu widow was the surviving half of her husband and so long as she was alive the husband continued to live in her. This Court observed as follows :\n\n''The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right.\n\nThat is to say, according to these decisions her interest is a fluctuating one and is liable to incre.ase or decrease according as there are accretions to or diminutions of the property. In our opinion these decisions\n\nly down the law correctJy.\"\n\nlt may be pertinent to note that in the aforesaid case the Court was wnsidering tb.e nature of the interest which a widow derived by virtue Qf the statutory substitution contained in s.3(2) of the Act of 1937.\n\nIt was ;), lsp {lOinted out that like other coparceners of a Hindu copar- lhe W.tcr\"!lt of a widow until separated by a partition continud lo 1:icl a fiui; iuating o~ which was liable to increase or decrease with\n\nth~ .dea(}js pr ; idditions in the family.\n\n1\\1 $Ptmn lsser v. Smt. Subujpari & others(') this Court pointed .O!ll fP#t lhti intere~ col)ferred on a Hindu widow arose by statutory\n\n:stitutiPn '\"1<! t)ie Al; t of 1937 introduced changes which were so\n\nalien w thl.> stmctun: of a Hindu coparcenary. In this connection Cp\\lft omerved llS f.olJows :\n\n\"Tlu: Act in invting the widow of a member of a coparc.enary with (l)e interest which the member had at the time pf his de11th has int; oduced changes which are alien to the\n\n(1) [1962] 2 S.C.R. 558, 564-565.\n\n(2) [19~5] I S.C.R. 26, 33.\n\n(3) [196711 s.~.R. 7.\n\nCONTROLLER ESTATE DUTY v. ALLADI KUPrUSWAMY (Fa.<al Ali, J.) 729\n\nstructure of a coparcenary. The interest of a widow arises not by inheritance nor by survivorship, but by statutory substitution :\n\n• • • *\n\nA Hindu coparcenary under the M itakshara school consisbs of males alone : it includes only those members who acquire by birth or adoption interest in the coparcenary property. The essence of CDparcenary property is unity ot ownership which is vested in the whole body of coparceners.\n\nWhile it remains joint, no individual member can predicate of the undivided property that he has a definite share therein.\n\nThe jnterest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners : it is only on partition that the coparcener can claim that he has become entitled to a definite share. The two principal incidents of coparcenary property are : that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a coparcener acquires an interest in the coparcenary property by birth, not as representing his father but in his own independent right acquired by birth.\"\n\nAs pointed out above the essence of coparcenary property is the unity of ownership which is vested in the whole body of coparceners and the two principal incidents of coparcenary property are that the interest\n\nof coparceners devolves by survivorship and not by inheritance and E that the male issue of a coparcener acquires an interest in the coparcenary property by birth and not as representing his father.\n\nAfter having described the incidents of a Hindu coparcenary, the Court proceeded to observe as follows :\n\n\"By the Act (Act of 1937) certain antithetical concepts are sought to be reconciled.\n\nA widow of a coparcener is F invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary.\n\nShe is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener : though invested with the same interest G which her husband had in the property she does not acquire the right which her husband could have exercised over .the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place Qf her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so H long as that estate enures. • • * She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow\n\nafter being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property .. \"\n\nAgain this Court did not approve of the assumption made by some Courts that the right vested in the widow was liable to revert to the coparcenary, even where, on demand for partition, it became separated from the coparcenary property, and in this connection this Court observed as follows :\n\n\"The assumption that though the right vested in the widow by the Act is a right of property which may on demand for partition become separated from the coparcenary property, it is still liable to revert to the coparcenary on the determination of the widow's estate, does not give full effect to the statutory conferment upon the widow of the same right of claiming partition as a male owner\".\n\nFinally this Court approved of certain observarons made by the Madras High Court in Parappagari Parappa alias Hammanthappa and Another v. Parappagari Nagamma and others(') where Subba Rao J., as he then was, made the following observations :\n\n\"She could ask for partition and separate possession of her husband's share.\n\nIn case she asked for partition, her husband's interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property. If there was no severance, it . would devolve by survivorship to the other members of the joint Hindu family : \"\n\nIt is, therefqre, manifest from the aforesaid decision that if the widow had not chosen to .exercise her right of partition, 'there is no severance of the Hindu coparcenary and on her death the interest of the widow merges in the coparcenary property or lapses to the other coparceners.\n\nAs already indicated above, this Court in Satrughan v. Smt. Sabujpari & others (supra) had taken the same view and had confirmed .the u; vision Bench decision of the Patna High Court in Smt. Sabujpari and another v. Satrughan Isser and others(2), where the Patna High Court after considering the entire law on the subject, observed thus :\n\n\"After having considered the various authorities and the various aspects of the case, my conclusions are that, under the Provisions of the Act a widow orf a deceased coparcenef is placed in same p9sition as the deceased coparcener was, for the reason of the fictiol). that half .the body of the deceased husband survived in the widow; that, like her husband; the widow also is entitled to effect severance of the joint status\n\n(I) I.L.R. (1954) Mad. 183.\n\n(2) A.T.R. 1958 Pat. 405, 410.\n\n:CIJJif'FRoLLER ESTATE DUTY v. ALLADI KUPPUSWAMY (Fazal Ali, J.) 731\n\nof the family by an nneqnivocal expression of intention to separate; * * • * that in case the widow does not exercise her right of partition and dies without expressing any intention to separate, the interest of the husband, which she enjoyed, goes by survivorship to the other members of the joint family.\"\n\nWe find ourselves in complete agreement with the observations made by the Patna High Court to which one of ns (Untwalia, J., as he then was) was a party. The view taken by the Patna High Court in the aforesaid case was later on approved by a Fnll Bench of the Patna High Court in Mst. Khatrani Kuer v. Smt. Tapeshwari Kuer(').\n\n' In State Bank of India v. Ghamandi Ram (dead) through Shri\n\nGurbux Rai(2 ), this Court, while dealing with the incidents of Hindu C coparcenary, observed as follows :\n\n\"According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. * • * The incidents of coparcenership under the Mitakshara law are : first, the lineal D male descendants of a person np to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that no alienation of the property any time work ant their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of snch co-ownership the possession and E enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the\n\nsnrvivon;. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in\n\no far that on adoption the adopted son becomes a copar- F cener with his adoptive father as regards the ancestral pr°\" perties of the latter.\"\n\nThus analysing the ratio of a aforesaid case regarding the incidents of a .. Hindu coparcenary it would appear that a Hindu coparcenary has s~ -eiisential characteristics, namely, (1) that the lineal male descendant& np to the third generation acquire an independent right of owner- G ship by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work ont their rights l!Y demanding partition; (3) that until partition, each member has gO, t ownership extending over the entire property conjointly with the res( and so long as no partition takes place, it is difficult for any coperce.iit . to predicate the share which he might receive; ( 4) that as a\n\nr.es\\ilt of snch co-ownership the possession and enjoyment of the property H\n\ni~ c.on'unon; (5) that there can be no alienation of the property without .....!..·, ' '\n\n<: i) (1). AI.R. 1964 Pat 261.\n\n: '(2} .. (1969] 3 S.C.R. 681, 686.\n\n732 SUPREME COURT REPQltfS (1977] 3 S.<;.ll..\n\nthe concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.\n\nApplying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting condition No. ( 1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husband's death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition iJS made, her dominion extends to the entire property conjointly with the other members of the coparcenary. her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be mcreased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widowestate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she. has coparc.enary interest and she is\n\nalso a member of a coparcenary by virtue of the rights conferred -On her under the Act of 1937.\n\nThere is yet another important aspect of the matter which has to be considered. At the time when the Estate Duty Act was passed in 1953, the Legislature was fully aware of the statutory interest conferred on a widow by virtue of the Act of 1937 and the incidents thereof.\n\nIn these circumstances it is not reasonable to infer that the Legislature could have intended that though a Hindu widow has got the same interest as her husband in the Hindu coparcenary and has also the right to demand partition and her interest which is a fluctuating one would lapse to the other coparceners in case of her death without seeking partition in the same manner as that of other coparceners, yet it should be exempt from estate duty.\n\nThe sheet-anchor of the argument of the respondent was the Prizy Council decision in Arunachalam Chettiar's case (supra). In the firsf place, the facts of that case are clearly distinguishable from the facts of the present case. In that case, the Hindu undivided family consisted of father, son and some female members.\n\nAccording to the Privy\n\nCounci~, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937.\n\nMoreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision\n\nlike the inclusive part of sub-s. ( 1) and sub-s. (2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiar'.< case\n\nCONTROLLER ESTATE DUTY v. ALLAl>I KUPPUSWAMI (Fazal Ali,].) 733\n\n(supra) can be called in aid to support the contention of the respon- A dent. In the instant cooe, once it is held, as it must be, that Smt. Alladi wail a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged in:o the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiar's case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s.\n\nB 39 of the Act. A fortiori the same observations apply to the case of Gartside v. Inland Revenue Commissioners (supra). That case has no application here where we are concerned with the concept of a Hinda coparcenary which is totally alien to the estates contemplated under the English Acts.\n\nFor these rerusons, therefore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the C present appeal, and the High Court was in error in basing its decision on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the Act.\n\nFinally, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 193 7 was merely a statutory substitution of a new status by her introduction into the D copercenary and she could not be treated either as a coparcener or a member of the copercenary or to possess any kind of coparcenary interest. While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under E the Shastric Law chose to improve her statUIS by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener's interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property.\n\nEven though the widow is not a coparcener in the strictly legal sense of the term, the interest which F she has is the same interest as her husband and that is the coparcenary interest with the only limitation p; aced on her by s. 3(3) of the Act of 1937, namely, that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sulH;. (I) of s. 7 and under s. 39 the value of the G benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her, had there been a partition immediately before her death.\n\nThe last plank of the argument of the respondent was that the Estate Duty Act being a fiscal statute should be construed strictly so H as to give every benefit of doubt to the subject.\n\nThere can be no quarrel With this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is\n\ntaxable, it is not for the Court to strain and stress the language of '!he section so as to enable the tax-payer to escape the tax. In the view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effect.\n\nSummarising, therefore, the position that emerges is as follows :\n\nBy virtue od' the provisions of the Act of 1937 a Hindu widow undoubtedly prn; sesses a coparcenary interest as contemplated by s. 7 ( 1) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7 (2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub-s. (I) of s. 7, it must be taken to have passed on her death and was hence cxigible to estate duty. Since Smt. Alladi was a member of the copercenary, this interest of her's which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the Act.\n\nThe interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter part and sub-s. (2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ampit of s. 40 of the Act in this case.\n\nThe result is that the appeal is allowed, the judgment of the Hig!J Court is set asiqe and the question referred to the High Court is answered in the affirmative.\n\nThere will be no order as to costs ..\n\nS.R.\n\nAppeal allowed.", "total_entities": 104, "entities": [{"text": "TZI\n\nCONTROLLER OF ESTATE DUTY MADRAS", "label": "PETITIONER", "start_char": 6, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "CONTROLLER OF ESTATE DUTY MADRAS", "offset_not_found": false}}, {"text": "ALLADI KUPPUSWAMY", "label": "RESPONDENT", "start_char": 45, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "ALLADI KUPPUSWAMY", "offset_not_found": false}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 84, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "L. UNTWALIA ANIJ S. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 97, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Duty Act, 1953", "label": "STATUTE", "start_char": 150, "end_char": 164, "source": "regex", "metadata": {}}, {"text": "Sections 7(1)", "label": "PROVISION", "start_char": 165, "end_char": 178, "source": "regex", "metadata": {"linked_statute_text": "Duty Act, 1953", "statute": "Duty Act, 1953"}}, {"text": "Liability to estate dutyfatate Duty Act, 1953", "label": "STATUTE", "start_char": 393, "end_char": 438, "source": "regex", "metadata": {}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 522, "end_char": 534, "source": "regex", "metadata": {"linked_statute_text": "Liability to estate dutyfatate Duty Act, 1953", "statute": "Liability to estate dutyfatate Duty Act, 1953"}}, {"text": "Shri Alladi who died before the Estate Duty Act 1953", "label": "STATUTE", "start_char": 772, "end_char": 824, "source": "regex", "metadata": {}}, {"text": "January 5, 1956", "label": "DATE", "start_char": 1029, "end_char": 1044, "source": "ner", "metadata": {"in_sentence": "Alladi died on January 5, 1956, a fev.'"}}, {"text": "Hindu Sucession Act, 1956", "label": "STATUTE", "start_char": 1087, "end_char": 1112, "source": "regex", "metadata": {}}, {"text": "AUadi", "label": "OTHER_PERSON", "start_char": 1340, "end_char": 1345, "source": "ner", "metadata": {"in_sentence": "AUadi was a member of the Hindu coparcenary, her interest in the joint family properties passed on her death to the other three sons and the value of this interest being l I 4th, the heirs would be liable to pay estate duty on the value of the I /4th."}}, {"text": "Central Board of Revenue", "label": "ORG", "start_char": 1642, "end_char": 1666, "source": "ner", "metadata": {"in_sentence": "The respondent filed an appeal before the Central Board of Revenue OJ.nd <..:ontended that as Smt."}}, {"text": "Allacli", "label": "OTHER_PERSON", "start_char": 1699, "end_char": 1706, "source": "ner", "metadata": {"in_sentence": "Allacli died as a Hindu widow she possessed no coparcenary interest which could pass on her death; her interest merged without any benefit accruing or arising to the coparceners and hence section 7 subsection ( 1) had no application."}}, {"text": "section 7", "label": "PROVISION", "start_char": 1887, "end_char": 1896, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Sucession Act, 1956", "statute": "the Hindu Sucession Act, 1956"}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 2121, "end_char": 2128, "source": "regex", "metadata": {"statute": null}}, {"text": "VS Rights to Property Act, 1937", "label": "STATUTE", "start_char": 2148, "end_char": 2179, "source": "regex", "metadata": {}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 2342, "end_char": 2362, "source": "ner", "metadata": {"in_sentence": "Thereupon, the respondent moved the Board to make reference to he High Court of Madras for decision of the questions of law involved in the case."}}, {"text": "section 64(1)", "label": "PROVISION", "start_char": 2482, "end_char": 2495, "source": "regex", "metadata": {"linked_statute_text": "VS Rights to Property Act, 1937", "statute": "VS Rights to Property Act, 1937"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2785, "end_char": 2789, "source": "regex", "metadata": {"linked_statute_text": "VS Rights to Property Act, 1937", "statute": "VS Rights to Property Act, 1937"}}, {"text": "Hindu Womens Rights to Property Act, 1937", "label": "STATUTE", "start_char": 2797, "end_char": 2838, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2923, "end_char": 2927, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Womens Rights to Property Act, 1937", "statute": "the Hindu Womens Rights to Property Act, 1937"}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 2935, "end_char": 2956, "source": "regex", "metadata": {}}, {"text": "A11adi", "label": "OTHER_PERSON", "start_char": 3180, "end_char": 3186, "source": "ner", "metadata": {"in_sentence": "A11adi was not a coparcenary interest which could have passed under s. 7(1) of the Act and as the said interest was incapable of .valuation, it was not exigible to estate duty and thus held against the Revenue and in favour of the .accountable person."}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 3248, "end_char": 3255, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3921, "end_char": 3925, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4057, "end_char": 4061, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 3 SCR 681", "label": "CASE_CITATION", "start_char": 7088, "end_char": 7104, "source": "regex", "metadata": {}}, {"text": "S1", "label": "PROVISION", "start_char": 7564, "end_char": 7566, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 8462, "end_char": 8467, "source": "regex", "metadata": {"statute": null}}, {"text": "Arunachalam Chettiar", "label": "OTHER_PERSON", "start_char": 8539, "end_char": 8559, "source": "ner", "metadata": {"in_sentence": "Th;: High Court was in error in basin2 its decision on the Arunachalam Chettiar's case and also in Gartside's case ignoring the :decisions of this Court and also the peculiar and special provisions of tho Act. [", "canonical_name": "Arunachalam Chettiar"}}, {"text": "Gartside", "label": "OTHER_PERSON", "start_char": 8579, "end_char": 8587, "source": "ner", "metadata": {"in_sentence": "Th;: High Court was in error in basin2 its decision on the Arunachalam Chettiar's case and also in Gartside's case ignoring the :decisions of this Court and also the peculiar and special provisions of tho Act. ["}}, {"text": "Alla di possieiied", "label": "PETITIONER", "start_char": 9412, "end_char": 9430, "source": "ner", "metadata": {"in_sentence": "Alla di possieiied a coparcenary interest which lapsed on her death and merged into the coparcenary and was clearly covered by the inclusive part of sub-s. (1) of s. 7 and under s. 39, the value of the benefit accruing or arising from the cesier of the coparcenary interest was to be determined by taking the principal value of the share and the joint family property which would have been allotted D tQ -~ had there been partition immediately before her death."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9575, "end_char": 9579, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 9590, "end_char": 9595, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 9926, "end_char": 9933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9964, "end_char": 9968, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 9995, "end_char": 10000, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10052, "end_char": 10056, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 10455, "end_char": 10476, "source": "regex", "metadata": {}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 10680, "end_char": 10691, "source": "ner", "metadata": {"in_sentence": "40 of 1965)\n\nS. T. Desai, P. L. Juneja and R. N. Sachthey, for the appellant.", "canonical_name": "S. T. Desai"}}, {"text": "P. L. Juneja", "label": "LAWYER", "start_char": 10693, "end_char": 10705, "source": "ner", "metadata": {"in_sentence": "40 of 1965)\n\nS. T. Desai, P. L. Juneja and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 10710, "end_char": 10724, "source": "ner", "metadata": {"in_sentence": "40 of 1965)\n\nS. T. Desai, P. L. Juneja and R. N. Sachthey, for the appellant."}}, {"text": "G. Ve11katarama Sastry", "label": "LAWYER", "start_char": 10746, "end_char": 10768, "source": "ner", "metadata": {"in_sentence": "G. Ve11katarama Sastry, K. R. Ramamani and J. Ramiimurthi for the respondent."}}, {"text": "K. R. Ramamani", "label": "LAWYER", "start_char": 10770, "end_char": 10784, "source": "ner", "metadata": {"in_sentence": "G. Ve11katarama Sastry, K. R. Ramamani and J. Ramiimurthi for the respondent."}}, {"text": "J. Ramiimurthi", "label": "LAWYER", "start_char": 10789, "end_char": 10803, "source": "ner", "metadata": {"in_sentence": "G. Ve11katarama Sastry, K. R. Ramamani and J. Ramiimurthi for the respondent."}}, {"text": "FA7-AL Au", "label": "JUDGE", "start_char": 10869, "end_char": 10878, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFA7-AL Au, J.-This appeal by certificate is directed against a Full Bench judgment of the Madras High Court dated December 5 1969- Alladi Kuppuswami v. Controller of Estate Duty, Madra~(')-by which the reference made to the High Court by the Central Board of Revenue was answered in favour of the accountable person and against the Revenue."}}, {"text": "ss. 7(1)", "label": "PROVISION", "start_char": 11307, "end_char": 11315, "source": "regex", "metadata": {"linked_statute_text": "Estate Duty Act, 1953", "statute": "Estate Duty Act, 1953"}}, {"text": "Estnte Duty Act, 1953", "label": "STATUTE", "start_char": 11378, "end_char": 11399, "source": "regex", "metadata": {}}, {"text": "Sri Alladi Krishnaswami Iyer died some time before the passing of the Estate Duty Act, 1953", "label": "STATUTE", "start_char": 11568, "end_char": 11659, "source": "regex", "metadata": {}}, {"text": "Alladi Venkatakshmamma", "label": "OTHER_PERSON", "start_char": 11752, "end_char": 11774, "source": "ner", "metadata": {"in_sentence": "Alladi Venkatakshmamma-to be referred in short as 'Sm!. •"}}, {"text": "Alladi Krishnaswami Iyer", "label": "OTHER_PERSON", "start_char": 11920, "end_char": 11944, "source": "ner", "metadata": {"in_sentence": "Sri Alladi Krishnaswami Iyer-hereafter to be referred to as \"Sbri Alladi\" was a member of the Hindu coparcenary consisting of himself, his wife and three sons."}}, {"text": "Hindu Succession Act", "label": "STATUTE", "start_char": 12249, "end_char": 12269, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 1", "label": "PROVISION", "start_char": 13650, "end_char": 13654, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14241, "end_char": 14250, "source": "regex", "metadata": {"statute": null}}, {"text": "Rihts to Property Act, 1937", "label": "STATUTE", "start_char": 14272, "end_char": 14299, "source": "regex", "metadata": {}}, {"text": "section 7", "label": "PROVISION", "start_char": 14388, "end_char": 14397, "source": "regex", "metadata": {"linked_statute_text": "Rihts to Property Act, 1937", "statute": "Rihts to Property Act, 1937"}}, {"text": "Whether the Estate Duty Act, 1953", "label": "STATUTE", "start_char": 14430, "end_char": 14463, "source": "regex", "metadata": {}}, {"text": "section 34(2)", "label": "PROVISION", "start_char": 14887, "end_char": 14900, "source": "regex", "metadata": {"linked_statute_text": "Whether the Estate Duty Act, 1953", "statute": "Whether the Estate Duty Act, 1953"}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 14908, "end_char": 14929, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15473, "end_char": 15477, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15863, "end_char": 15867, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 16186, "end_char": 16191, "source": "regex", "metadata": {"statute": null}}, {"text": "Rights to Property Act, 1937", "label": "STATUTE", "start_char": 16511, "end_char": 16539, "source": "regex", "metadata": {}}, {"text": "ss. 7(1)", "label": "PROVISION", "start_char": 16634, "end_char": 16642, "source": "regex", "metadata": {"linked_statute_text": "Rights to Property Act, 1937", "statute": "Rights to Property Act, 1937"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16694, "end_char": 16698, "source": "regex", "metadata": {"linked_statute_text": "Rights to Property Act, 1937", "statute": "Rights to Property Act, 1937"}}, {"text": "Rights to Property Act, 1937", "label": "STATUTE", "start_char": 16724, "end_char": 16752, "source": "regex", "metadata": {}}, {"text": "Rights to Property Act, 1937", "label": "STATUTE", "start_char": 16883, "end_char": 16911, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 17265, "end_char": 17274, "source": "regex", "metadata": {"linked_statute_text": "Rights to Property Act, 1937", "statute": "Rights to Property Act, 1937"}}, {"text": "Aliyasantana Jaw", "label": "OTHER_PERSON", "start_char": 17867, "end_char": 17883, "source": "ner", "metadata": {"in_sentence": "on the death of the deceased shall be deemed to pass on the deceased's death to the extent to which a benefit accrues H\n\n(1) (1957) A. C. 513-34 I. T. R. (E.D.) 20\n\n{2) (1968) A.C5·53-70 I.T.R. 663 (H. L.)\n\nA or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara Marumakkattayam or Aliyasantana Jaw. '"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 18415, "end_char": 18419, "source": "regex", "metadata": {"statute": null}}, {"text": "Mitakshara. Marumakkattayam", "label": "OTHER_PERSON", "start_char": 18980, "end_char": 19007, "source": "ner", "metadata": {"in_sentence": "The second part of sub-s. ( 1 ) contains an inclusive category which brings within the fold of sub-s. ( 1) a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 19155, "end_char": 19166, "source": "ner", "metadata": {"in_sentence": "We might dispose of a short argument advanced by Mr.\n\nS. T. Desai in support of the appeal on this question.", "canonical_name": "S. T. Desai"}}, {"text": "Marumakkattayam", "label": "OTHER_PERSON", "start_char": 19272, "end_char": 19287, "source": "ner", "metadata": {"in_sentence": "It was submitted that the words \"governed by the Matakshara, Marumakkattayam or A/iyasantana law\" clearly show that the coparcenary interest ."}}, {"text": "s. 39", "label": "PROVISION", "start_char": 20004, "end_char": 20009, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 21233, "end_char": 21237, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 22827, "end_char": 22831, "source": "regex", "metadata": {"statute": null}}, {"text": "s.3(2)", "label": "PROVISION", "start_char": 25566, "end_char": 25572, "source": "regex", "metadata": {"statute": null}}, {"text": "Subujpari", "label": "RESPONDENT", "start_char": 25876, "end_char": 25885, "source": "ner", "metadata": {"in_sentence": "Subujpari & others(') this Court pointed .O!ll fPt lhti intere~ col)ferred on a Hindu widow arose by statutory\n\n:stitutiPn '\"1<!"}}, {"text": "[1962] 2 S.C.R. 558", "label": "CASE_CITATION", "start_char": 26335, "end_char": 26354, "source": "regex", "metadata": {}}, {"text": "Madras High Court", "label": "COURT", "start_char": 30167, "end_char": 30184, "source": "ner", "metadata": {"in_sentence": "Finally this Court approved of certain observarons made by the Madras High Court in Parappagari Parappa alias Hammanthappa and Another v. Parappagari Nagamma and others(') where Subba Rao J., as he then was, made the following observations :\n\n\"She could ask for partition and separate possession of her husband's share."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 30282, "end_char": 30291, "source": "ner", "metadata": {"in_sentence": "Finally this Court approved of certain observarons made by the Madras High Court in Parappagari Parappa alias Hammanthappa and Another v. Parappagari Nagamma and others(') where Subba Rao J., as he then was, made the following observations :\n\n\"She could ask for partition and separate possession of her husband's share."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 31354, "end_char": 31370, "source": "ner", "metadata": {"in_sentence": "Sabujpari & others (supra) had taken the same view and had confirmed .the u; vision Bench decision of the Patna High Court in Smt."}}, {"text": "Untwalia", "label": "JUDGE", "start_char": 32506, "end_char": 32514, "source": "ner", "metadata": {"in_sentence": "We find ourselves in complete agreement with the observations made by the Patna High Court to which one of ns (Untwalia, J., as he then was) was a party.", "canonical_name": "L. UNTWALIA"}}, {"text": "(1969] 3 S.C.R. 681", "label": "CASE_CITATION", "start_char": 34998, "end_char": 35017, "source": "regex", "metadata": {}}, {"text": "At the time when the Estate Duty Act", "label": "STATUTE", "start_char": 36936, "end_char": 36972, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 38320, "end_char": 38324, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 38354, "end_char": 38359, "source": "regex", "metadata": {"statute": null}}, {"text": "Arunachalam Chattiar", "label": "OTHER_PERSON", "start_char": 38444, "end_char": 38464, "source": "ner", "metadata": {"in_sentence": "In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiar'.", "canonical_name": "Arunachalam Chettiar"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 38993, "end_char": 38998, "source": "regex", "metadata": {"statute": null}}, {"text": "Sastri for the respondent that the right of a Hindu widow under the Act", "label": "STATUTE", "start_char": 39813, "end_char": 39884, "source": "regex", "metadata": {}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 41066, "end_char": 41073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 41390, "end_char": 41394, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 41405, "end_char": 41410, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duy Act, 1953", "label": "STATUTE", "start_char": 42288, "end_char": 42308, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 42533, "end_char": 42537, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 42618, "end_char": 42622, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 42827, "end_char": 42831, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 43083, "end_char": 43088, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 43124, "end_char": 43129, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 43229, "end_char": 43233, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 43268, "end_char": 43272, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 43299, "end_char": 43304, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duy Act, 1953", "statute": "the Estate Duy Act, 1953"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 43399, "end_char": 43404, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_735_757_EN", "year": 1977, "text": "COMMISSIONER OF WEALTII TAX, ANDHRA PRADESH,\n\nHYDERABAD\n\nTRUSTEES OF H.E.H. NIZAM'S FAMILY\n\n(REMAINDER WEALTH TRUST),\n\nHYDERABAD\n\nMay 3, 1977\n\n[P. N. BHAGWATI, N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]\n\nWealth Tax Act 1957-Ss. 3, 21(1) and 21(4)-Scope of.\n\nSection 21(1) of the Wealth Tax Act provides that in case of assets chargeable to tax under the Act which are held by . . . . . . . . any trustee appointed under a Trust, wealth tax shall be levied upon and recoverable from the ........ trustee in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf the assets are held. Sub-section ( 4) provides that notwithstanding anything contained in this section, where the shares of the persons on whose behalf or for whose benefit a:ny such assets are held are indeterminate or unknown, wealth tax shall be levied upon and recovered_ from the trustee as if the prsons on whose behalf or for whose benefit the assets are held were an individual for the purposes of this Act.\n\nThe corpus of a family trust created by the Nizam of Hyderabad was notionally divided into 175 equal units, out of which 16lt units were allocated amongst relatives mentioned in the Second Schedule to the Deed in the manner specified therein. The essence of the Trust was that none of the beneficiaries was entitled. to the corpus of the units allocated to him or her but was only entitled to be paid the income from the units allocated to him or her. The trust deed made detailed and elaborate provisions as to the disposition of the different\n\nunits allocated to the various beneficiaries and also provided for every other contingency in such a manner that at any particular point of time one could say, if the owner of the life interest were to die at that point of time, who the beneficiaries entitled to the corpus would be.\n\nThe Wealth Tax Officer assessed wealth tax on the value of the respective units allocated to each of the several beneficiaries.\n\n- In appeal the Appellate Assistant Commissioner upheld the assessees' contention that since each of them was entitled only to a life interest in the corpus of the units allocated, they could not be assessed in respect of the entire value of the corpus. When assessments were made on this basis, the value of the remainder wealth escaped tax. The \\Vealth Tax Officer, therefore, assessed the remainder wealth under s. 21(4) taking the view that the beneficiaries in respect of the several remainder estates after the lives of the immediate beneficiaries were unknown and their shares were indeterminate.\n\nOn appeal the appellate Assistant Commissioner, without deciding the contention as to the applicability of s. 21(4), annulled the assessments on the ground that though the trust deed was one, it created several distinct and separate trusts, one in favour of each beneficiary with its own indeoendent and complete provision in regard to devolution after the death of each beneficiary and the Wealth Tax Officer was not justified in clubbing the entire remainder wealth in a single assessment.\n\nBefore the Appellate Tribunal the Revenue contended that the assessees H were liable to be assessed as an individual under s. 3 in respect of the entire corpus of the trust fund and s. 21 ( 4) being merely a machinery provision did not have the effect of overriding the charge imposed under s. 3.\n\n, The Tribunal he_ld (i) that s. 3 was subject to s. 21 and the assessees could not be assessed to wealth tax under that section in respect of the entire corpus, jgnoring the provisions of s. 21; (ii) thats. 21(1) was nQt applicable in this case and (iii) that s. 21(4) was applicable because the beneficiaries in respect of the remainder estate were unknowil. .\n\nThe following questions, among others. were referr-ed by the Tribunal to the High Court :\n\n1. Whether the trustees were liable to be taxed under s. 3 in the status of an \"individual\" ? ·\n\n2. Whether the Tribunal was right in holding _that the provisions of s. 3 should be considered as subject to the provisions of s. 21 ?\n\n3. Whether the Tribunal was correct in holding that under s. 21(4) the remainder wealth could be assessed in respect of each of the several units or groups of units allocated in favour of the beneficiaries 1\n\n4. Whether the Tribunal was right in holdinJ? that the provisions of s. 21(4) are applicable? -\n\nThe High Court held that (i) since the terms \"individual\" occurring in s. 3 is wide enough to include a group of persons forming a unit, the trustees were liable to be assessed under s. 3 but, s. 3 being subject to the provisions of s. 21, it was not permissible to tax the trustees under s. 3 ignoring the provisions of s. 21; (ii) it was not possible to say, on the valuation date, that the beneficiaries of the remainder estate in respect of each unit were unknown or their\n\nshar~ were indeterminate so as to attract the applicability of s. 21(4); and\n\n(iii) s. 21 (1) was applicable because it could be predicated with certainty and definiteness on the relevant valuation date as to who would succeed to the corpus of each set of unit and in what shares, if the conditions for the vesting of the corpus who fulfilled on that date.\n\nDismissing the appeals in part,.\n\nHELD : The trustees constituted an assessable unit and were liable to be assessed to wealth tax as \"individual\" tmder s. 3. [747 E]\n\n(1) (a) Section 3 imposes the charge of wealth tax subject to other provisions of the Act and these other provisions inc1ude s. 21. Section 3 is, therefore, made expressly subj'!ct to s. 21 and it must yield to that section in so far as the latter makes special provision for assessment of a trustee. [748 D-E]\n\n(b) Section 21 is mandatory.\n\nOn a combined reading of ss. 3 and 21, it is clear that an assessment on a trustee must be made in accordance with the provisions of s. 21.\n\nEvery ca,, e of assessment on a trustee must necessarily fall under s. 21 and he cannot be assessed apart from and without reference to that section. To hold otherwise would be to refuse to give effect to the words \"subject to the other provisions Of this Act\" in s. 3 and to deny mandatory force and effect to the provisions of s. 21. [749 E..0]\n\nC. R. Nagappa v. Commissioner of Income-tax 73 I.T.R. 187, Commissioner of Income Tax v. Nandlal Agar\"\"\"•al 59 I.T.R. 756 at 762 and Commissioner of Wealth Tax, Bihar & Orissa v. Kripashankar Dayashanker Worah 81 I.T.R. 763 followed.\n\nCommissioMr of lnco1ne-Tax, Ahmedabad v. Balwantrai Jethalal Vaidya 34 I.T.R. 187 approved.\n\n( c) The assessment which is contemplated to be made on the trustee under s. 21(1) ors. 21(4) is assessment in a representate capacity. It is really the beneficiaries who are sought to be assessed in respect of their interest in the trust properties through the trustee .. Section 21(1) can apply only where the trust properties are held by the tmstee for the benefit of a single beneficlaiy .\n\nC.W.T. v. TRUSTEES OF NIZAM 'l 37\n\n1 or Where. there are more beneficiaries than one, the individual shares of the A ben'ehciaries in the trust properties are determinate and known. Where such , is the case wealth tax can be levied on the trustee in respect of the interest , of any particular beneficiary in ihe trust properties in the same manner and ·::<to the same extent as it would be lcviable upon the beneficiary and in respect of such interest in the trust properties, the trustees would be assessed in a .rt;:presentative capacity as representing the beneficiary. The beneficiary would always be assessable in respect of his interest in the trust properties since such. interest belongs to him and the right of the Revenue to make direct asesss~ B ment on him in respect of such interest stands unimpaired by the provisions enabling assessment to be made on the trustees in a representative capacity.\n\n[750 G-H, 751 A-B, CJ\n\n(d) The Revenue has thus two modes of assessn1ent : (a) it may eiher assess such interest in the hands of the trustee in a rep:r:esentative capacity under sub s. (1); or (b) assess it directly in the hands of the beneficiary by including it in the net wealth of the beneficiary. In either case what is taxed is the interest of the beneficiary in the trust properties and not the corpus of C the trust properties.\n\nSo also where beneficiaries are more than one and their sllares are indeterminate or unknown, the trustee would be assessable in respect of their total beneficial interest in the trust propertie11.\n\nIn the instant case it is the beneficial interest which is assessed to \\Vealth tax in the hands of the trustee and not the corpus of the trust properties. Since under subss. ( 1) and ( 4) of s. 21 it is the beneficial interest. which is taxable in the hands of the trustee in a representative capacity and the Jiab'.lity of the trustee cannot be greater than the aggregate liability of the beneficiaries, no D part of the corpus of the trust properties can be assessed in tlie hands of the trustee under s. 3 and any such assessment would be contrary to the plain mandatory provisions of s. 21. [751 D-E, G-H]\n\n(e) The consequences that flow from the proposition laid down ins. 21(1) tltat the trustee is assessable \"in the like manner and to the same extent\" a~ the beneficiary, are : (i) There would have to be as many assessments on the trustee as there are beneficiaries with determinate and known shares, thoi.;..!l:h for the sake of convenience, there may be only one assessment order specifying E separately the tax due in respect of the wealth of each beneficiary; (ii) The .assessment of the tnlStee would have to be made in the same status as that df the beneficiary whose interest is sought to be taxed in the hand of the\n\nt:nlltne; and (iii) The amount of tax payable by the trustee would be the same as that payable by each beneficiary in respect of his beneficial interest, if he were a.sessed directly. f752 B-Dl\n\nN. V. Sl1anmugham & Co., v. Commissioner of Tncome-Tax, Madras, 81 J.T.R. 310, Padmavati Jaykrishna Trust v.\n\nCommissioner of Wealth-Tax, F Gujarat 61 l.T.R. 66, at 73-4, Trustees of Putliba1' R. F. Mulla Trusr v. Com- 1niJwioner of Wealth-Tax 66 I.T.R. 653, at 657-8 and Chintamani Ghosh v.\n\nCommissioner of Wealth-Tax 80 I.T.R. 331 at 341 referred to.\n\n(f) Once it is established that a trustee can be assessed only in accordance with the provisions of s. 21 and under these provisions, it is only the beneficial interests which are taxed in the hands of the trustee, it must follow that no part of the value of the corpus in excess of the aggregate value of the beneficial interests can be brought to tax in the assessment of the trustee.\n\nTo do so. would be contrary to the scheme and provisions of s. 21. It would be clearly erroneous to assess the trustee to wealth tax on the excess of the vatue of the corpus over the acturial valuations of the life interest and the reversionary interest of the beneficiaries. [753 C-D]\n\nCommissioner of Wealth-Tax, Gujarat v. Smt. Arundhati Balkrishna Trust IOI J.T.R. 626 approved.\n\n(g) No part of the corpus of the trust funds could be assessed in the H hands of the trustees but the assessment could be made on them only in resoect of the beneficial interests of the beneficiaries in the trust funds under ss. 21 (I) and (4). [754 Al\n\nA •\n\n(2)(a) Even if the beneficiaries were indeterminate or unknown, s. 21(4) wouhl apply and the trustees would be liable to be assessed in respect of the totality of the beneficial interest in the remainder as if it belonged to one singlo beneficiary. The expression 'where the shares of the beneficiaries are indeter..- minatc or unknown' carries with it by necessary implication a situation whero the beneficiaries themselves are indeterminate or unknown. (754 F-G]\n\n(b) The correct interpretation of s. 21(4) must be that even where the beneficiaries of the remainder are indeterminate or unknown, the trustees can be assessed to wealth tax in respect of the totality of the beneficial interest in the remainder, treating the beneficiaries fictionally as an individual. [755-B] ( c) The Wealth Tax Officer has to determine as to who tho beneficiaries are in respect Of the remainder on the relevant date and whether their shares are determinate and known.\n\nSo long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, the possibility that the beneficiaries may change by reason -of subsequent events such as birth or death would not take the case out of the ambit of s. 21(1), [755 D-E]\n\nKhan Bahadur M. Habibur Rehman v. Cpmmissioner of Income-Tax, Bjhar & Orissa 13 I.T.R. 189.\n\nSubashini Karuri v. Wealth-Tax Officer, Calcutta '46 1.T.R. 527, Commissioner of Wealth Tax, Bombay v. Trustees of Mrs.\n\nHansabai Tribhuwandas Trust 69 I.T.R. 527 and Padmawati Jaykrishna Trust\n\nv. Commissioner of Wealth-Tax, Gujarat 61 I.T.R. 66, at 73-4 approved.\n\n(d) In order to determine the applicability of s. 21(1) on the relevant valuation date~ it bas to be seen whether it is possible tosay with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happe_ning of which the distribution is to take place occurred on that date. If it is, s. 21(1) would apply, if not, the case will be governed by s. 21(4).\n\nIn the instant case the trust deed provided for every contingency and whenever a relative specified in Second Schedule, who is the owner of the life interest in the set of unit or units allocated to him or her dies, there would always be beneficiaries capable of being easily ascertained and identified who would be entitled to the corpus of such unit or units in determinate and specific shares, either immediately on the death of such life tenant . or after another life interest. The remainder in respect each set of unit or units allocated to the respective relative specified in the Second Schedule was; therefore, liable to be assessed in the hands of the trustees under s. 21 (1) \"in the same manner and to the same extent\" as each beneficiary in respect of. his determinate and known share in such remainder. That excluded the applicability of s.21(4) in the assessment of the remainder. (756 D-E, F, H, 757 A-CJ\n\nCIVIL APPELLATE JURISDICTION : 470A of 1971.\n\nCivil Appeal Nos. 467-470 &\n\n(Appeals by Special Leave from the Judgment and Order dated 3-3-l970 of the Andhra Pradesh High Court in case Ref. No. 8 of 1967.) G. C. Sharma, P. L. Juneja and R. N. Sachthey, for the appellant in all the appeals.\n\nN. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B . .Dadachanji, and 0. C. Mathur, for the respondents in all the appeals.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J. These appeals by speciail leave are directed against a judgment of the High Court o, f Andhra Pradesh answering certain ques, tions referred to it by the Tribunal in favour of the assessee. The ques, tions are of some importance and complexity and they turn on thetwe\n\n• •\n\n' i' '•\n\n\" ).\n\nC.W.T. v. 'TRUSTEES OF NIZAM (Bllizgwati, J.) 7 39\n\ninterpretation of sections 3 and 21 Of the Wealth Tax Act, 1957 but since they can be answered only by applying the correct interpretation to the facts of the case, it is necessary to briefly recapitulate the facts giving rise to these appeals.\n\nIn the year 1950 the late Nawab Sir Mir Osman A.Ii Khan Bahadur, The Nizam of Hyderabad and Berar created seve.ral trusts out of which we are concerned in these appeals with the trust knowu as the Family Trust. The Nizam, by a Deed of Trust dated 16th May, 1950, created the Family Trust by transferring a corpus of Rs. nine crores in Government securities to the trustees constituted by him.\n\nThe corpus wasnotionally divided into 175 equal units, of out of which five units consti(uted a Fund called the 'Reserve Fund', 3t units constituted a 'Family Trust Expenses Fund' and the remaining 166t units were allocated amongst the relatives mentioned in the first column of the Second Schedule in the manuer specified in that Schedule, the number of units allocated to each individual relative being that mentioned in the second column. The Second Schedule was divided into two parts.\n\nPart I specified the names of the Nizam's wife Laila Begum, her five sons and two daughters and his another wife Jani Begum and her minor son as beneficiaries and in Part II were mentioned the names of the other wives, sons, daughters, daughters-Jn-law, sons-in-law, would-be sons-in• law and certain other ladies of the Palace. None of the beneficiaries mentioned in the Second Schedule, whether in Part I or Part IT, was to be entitled to the corpus of the units allocated to him or her. Each was entitled to be paid the income from the units allocated to him or her and detailed provisions were made for the manner in which the units were to devolve after his or her death.\n\nClause ( 4). of the Trust Deed pro>Jided that 30 out of 1661 units shall be allocated amongst the relatives mentioned in Part I of the Second Schedule in such manner that one unit each shall be allocated to Laila Begum and Jani Begum, two units each shall be allocated to the daughters of Laila Begum and four units each shall be allocated to the five sons of Laila Begum and the mi.nor son of Jani Begum. So far as one unit allocated to Laila Begum was concerned, the trustees were directed by sub-clause (a) of clause ( 4) to pay the income of this one unit to Laila Begum during her life time and after her death, it was to be divided into 12 equal parts and 2 equal parts each were to be added to the four units allocated to each of her five sons and one equal part each was to be added to the two units allocated to each of her two daughters to be held upon the same trusts as those declared in respect of the original units a!loc .. ted to each son or daughter as the case may be.\n\nEach of the five sons of Laila Begum was allocated four units and under sub-clause (b) of clause ( 4) it was pr9vided tht the income !rom these four units, supplemented by parts out of Laila Begum's mnt on her death, shall be paid to the respective son during his llie time and on and after his death, the corpus of the four units allocated to him together with the parts out of Laila Begum's unit added to it, shall be divided alll.Ol1gst his children or remoter issues per stirpes in the pmportion of two shares forevery male child to one share for every female child standing in the same degree\n\nof relationship. If such son died without leaving any child or remoter issue him surviving, sub-clause (b) of clause (4) provided that the trustees shall divide the four units allocated to him together with the 1!,-707SCl/77\n\nA •\n\nA •\n\nsubsequellJly added parts out of Laila Begum's unit into such sub-parts and in such manner tht they shall allocate two equal sub-parts each to each of the then surviving sons of Laila Begum by the settlor an<l the issue then surviving of any pre-deceased son and one equal sub-part each to each of the then surviving daughters of Laila Begum by the settlor and the issue then surviving of any pre-deceased daughter. The parts of such surviving sons and daughter of Laila Begum as are specified in the Second Schedule were to be added to and amaJgamated with the basic units, four or two as the case may be, allocated to them .and they were to be held on the same trusts as those declared in respect of such basic units. So far as concerns the sub-parts allocated to the sur~ viving sons and daugl1ters of Laila Begum who were born after the cfate of the Trust Deed, it was directed that such sub-parts would be taken by them absolutely and so also the sub-parts allocated to the issue of any pre-deceased son or daughter of Laila Begum were to be divided between them absolutely per stirpes in the proportion of two shares for every male child to one share for every fema.Je child standing_in same degree of relationship. Suh-clause (c) of clause (4) made similat provisions with regard to the two units allocated to each of the two daughters of Laila Begum. The income of the two units together with the subsequently added parts out of Laila Begum's unit was to be given to the respective daughter for her life time and on her death, the corpus. was to be divided amongst her children and remoter issue per stirpes in the proportion of two shares for every male child to one share for every female child standing in the same degree of relationship and.if she died without leaving any issue her surviving, the corpus ws to he divided into such sub-parts and in such manner that one equal sub-part was to go to each of the then surviving chi.idren of Laila Begum by the settlor and the issue then surviving of any pre-deceased son or daughter. The other provisions in regard to the interest taken by these beneficiaries in the corpus were the same as in sub-clause (b) of clause (4). Subclause (a) of clause (4) dealt with the unit allocated to Jani Begum and provided that the income of this un.it would go to Jani Begum du.ring her life time and on her death, the corpus of this unit wonld be added to and amalgamated with the four units allocated to her minor son Imdad Ali Khan to be held upon the same trusts as those declared in respect of those four units and if neither Imdad Ali Khan nor any child or remoter issne of his was living at the date of the death of Tani Begum, then this one unit of Jani Begum was to be held upon the same trusts as the one unjt allocated to Laila Begum on he.r death. Similarly, sub-clause (e) of clause (4) provided that the income of the four units allocated to Imdad Ali Khan shall be paid to him during his life time ahd on his death, the corpus shall be divided amongst his children and remoter issue per stirpes in the proportion of two shares for every male child to one share for every female chHd standing in the same degree of relationship and if he docs without leaving any child or remoter issue him surviving, the corpus shall be held on the same trusts as those upon which the four units allocated to any of the five sons of Laila Begum are held on the death of such son without leaving any child or remoter issue him surviving. It will thus be seen that detailed and elaborate provisions were made in the Trust Deed regarding the disposition of the different units allocated to the various beneficiaries specified in Part\n\nI ohhe Second Schedule and every contingency was taken care of in\n\nA • laying down the mode of devolution, so that at any particular point of tini.e, one could always say who would be the beneficiaries entitled to the corpus, if the owner of the life interest were to die at that point of time.\n\nThe remaining 136! units left after the allocation of 30 units as set out in clause (4) were dealt with in clause (5) of the Trust Deed.\n\nB These 136± units were allocated to the respective relatives of the scttlor specified in Part II of the Second Schedule in the respective proportions set out against their names. Sub-clause (a) of clause (5) provided that the.income of the respective unit or units or fraction thereof allocated to the respective relative shall be paid to them respectively for life. But so far as the 15 daughters of the settlor were concerned, to each of whom three units were allocated, it was provided that out of the income c of such three units, each daughter was to be paid only 2/3rd part ot the income and the remaining 1 /3rd part was to be set apart by way of a 'f\"eserve fund. Such reserve fund was to be utilised for any special, unusual, unforeseen or emergency expenses relating to the particular danghter from whose income the reserve fund was created and on her death, the reserve fund or the unutilised portion thereof was to be amalgamated with the three units of the corpus allocated to her, to be D held on the same trusts as those declared in respect of such three units.\n\nThere was also a special provision made regarding • Nawab Rashid Nawaz Jung, the son-in-law of the settlor, that, though allocated one unit, he was not to receive the income of that unit so long as he received the allowance as Amir of the Vikar-al-Mulk-Paigah and till then, the income of this unit was to be added to the five uni!s allocated to the Reserve Fund created under clause ( 6) to be held upon the same trust's E as those declared in respect of such Reserve Fund.\n\nThe other son-inlaw and the future husbands of the 13 other daughters of the settlor were also allocated t unit each and it was provided that until the marriage of each of these 13 daughters, the income of t unit allocated to her future husband should be set apart as a reserve fund and utilised in the same manner as the Reserve Fund of such daughter created out of o.ne-third part of the income of the three units allocated to her and after F her marriage, the income of such t unit should be paid to her husband.\n\nSo far as Fauzia Begum, the daughter of the second son of the sett1or was concerned, a special provision was made that the income of two units aMocated to her should be set apart and credited in her account called 'Fauzia Begum Reserve Fuud' and on the death of the second son of the settlor during the minority of Fauzia Begum, the income of these two units should be paid to a committee of management for the G maintenance, education, welfare, advancement in life and benefit of Fa\\Jzia Begum until she attained the age of majority and during the minority of Fauzia Begum, the trustees were also authorised to spend out of the Reserve Fund such sums as may be necessary for any special. unusual, unforeseen or emergency expenses for her benefit and on Fauzia Begum attaining the age of majority, the trustees were to hand over the reserve fund or the unutilised portion thereof H to her absolutely and also to pay to her the income of the two units during her life time.\n\nSub-clause (b) of clause (5) provided for the devillulion of the respective u0it or units or fraction thereof allocated\n\nA to the respective relatives on the; r death. It was directed that on the death of any of these relatives, the corpus of the unit or units or fraction thereof allocated to him or her should be divided and dil>tributed, subject to some. restrictions, amongst the children . .i\\Dd i\\ remoter issue per stirpes in the ratio of 2 : 1 as between male lµld female children standing in the same degree of relationship.\n\nThe\n\nB contingency of any of these relatives dying without leaving any child\n\nor remoter. issue him or her snrviving was dealt with in sub-clause\n\n(c) of clause (5) .which provided that in the event the unit or units or the fraction thereof allocated to such relative should be divided amongst' the other relatives of the settlor but in accordance with cenhln\n\nspecified rules. Sub-clause (d) of Clause (5) made a special provision in regard to Dulhan Pasha Bem, namely, that on her death, the five c units allocated to her should e added to and amalgamated with the four units allocated to her daughter. Sbahzadi Begum, to be held upo.n the same trusts as those declared in respect of such four unifs. It wm thus be seen that according to the scheme envisaged in clause (5), each of the settlors specified in Part II of the Second Schedule was given life interest in the unit or units or fraction thereof allocated to him or her and on his or her death, subject to certain special provisions in regard\n\nD to some of the relatives, the corpus of such unit or units or fraction thereof was to be divided and distributed amongst the children or. rerooter issue and if any of the relatives died without leaving any child or remoter issue him or her surviving, the corpus allocated to him or her was to go to the other relatives in accordance with certain specified rules.\n\nClause ( 6) of the Trust Deed directed the trustees to hold 5 units E out of the corpus of the trust fund as and by way of a Reserve Fund, This Reserve Fund was primarily intended to meet special, unusual, unforeseen or emergency expenses of or for the benefit of the relatives of the settlor specified in the Second Schedule and it was also provided that if there was any deficit in the Family Trust Expenses Account in • meeting the charges of collection, the remuneration of the trustees and\n\nF the members of the committee of management and other costs, charges, expenses and outgoing in connection with the trust, such deficit should be made good out of the income or the corpus of the Reserve Fuiid.\n\nThere was also a provision made that on and after the death of any of the. relatives of the sett!or specified in the Second Schedule, a corresponding proportion of the Reserve Fund should be added to and amalgamated with the unit or. units or fraction thereof allocated to uch relative and held on trusts similar to the original trust.·\n\n1 \\ The remaining 3t units were allocated under clause (7) of the Trust Deed to a fund called !Tue Family Trust Expenses Account'. This fund .. was.intended to meet all the charges for the collection of the income of .. the trust fund and Che remuneration of the trustee• and the members of the committee of management and all the costs, charges and expenses and outgoings relating to the trust and its administration. It was .also H directed that after all the aforesaid trusts relating to the 30 units, l 36t\n\nuni~ '!nd 5 units out ?f the corpus of the trust fund had been . fully. adrmmstered and carried out and the corpus of all such units .had been . handed over and transferred absolutely to the ultimate beneficiaries, the\n\ntrustees should transfer and hand over 3! units comprising this fund to A the Then successor-in-title of the settlor or to the eldest male descendant in the. direct male line of succession of the settlor according to the rule of primogenature.\n\nDuring the course of assessment of the trustees (hereinafter referred to asthe assessees) to wealth tax for the assessment year 1957-58, a question arose as to how the assessment to wealth tax should be made.\n\nB The Wealth Tax Officer assessed the assessees to wealth tax on the value of 13± units of the trust fund comprising 5 units allocated to the Reserve Fund, 3± units allocated to the Family Trust Expenses Account and 5 units representing the units allocated to the future husbands of the•'then unmarried daughters of the settlor. The wealth corresponding to the remaining 161! units was assessed in the hands of the several beneficiaries specified in the Second Schedule, who were assessed to C wealth tax on the value of the respective units allocated to them under the Trust Deed.\n\nSimilar assessments were also made for the assess• ment year 1958-59 with this difference that by the time these assessment$ came to be made, one other daughter was also married and the\n\nWealth Tax Officer, therefore, assessed the assessees to wealth tax only in respect of the value of 13 units of the Trust Fund and the values of the other units were assessed in the hands of the respective beneficiaries D to whom they were allocated as specified in the Second Schedule.\n\nThere were appeals to the Appellate Assistant Commissioner against the assessments for the assessment years 1957-58 and 1958-59 and in these appeals, the Appellate Assistant Commissioner held !hat the inclusion of 5 units constituting the Reserve Fund, 3J units constituting the Family Trust Expenses Account and the units allocated to the future E husbands of the unmarried daughters in one single assessment was unjustified, since the clauses constituting the Reserve Fund and the Family .\n\nTrust Expenses Account and creating a trust in favour of the future song.in-law constituted three distinct trusts and hence separate assessments must be made in respect of the several units forming the subject matter of these olauses. The Wealth Tax Officer accordingly made separate assessments on the assessees in respect of 5 units constituting F the Research Fund and 3t units constituting the. Family Trust Expenses Accoont for the assessment years 1957-58 and 1958-59 and similar assessments were also made on the assessees in respect of the assessment years 1960-61 and 1961-62.\n\nWe are not concerned in these appeals with the assessments made on the assessees in respect of 5 units constituting the Reserve Fund and 3t units constituting the Family Trust Expenses Account since these assessments have become final.\n\nThe several beneficiaries specified in the Second Schedule also appealed against their assessments to wealth tax on the ground that each of them was entitled only to a life interesf in the corpus of the units .allocated to him or her and he or she could not, therefore, be assessed in respect of the entire value of the corpus. This contention :vas accepted byhthe Appellate Assistant Commissioner who held ththat H masmuch as eac beneficiary was entitled ortly to the income of. e\n\nurul!llocated to him or her during his or her life time, he or she could be assessed to wealth tax only on the value of his or her life interest\n\n744 SUPRfuVIE COURT REPORTS\n\n. [1977] 3 S.C.R.\n\nin the respective units and not on the value of the corpus and in this view, the .Appellate Assistant Commissioner set aside the assessments made on the beneficiaries and directed the Wealth Tax Officer to make fres b assessments by including only the value of the life interest of each of the beneficiaries in his or her assessment. The Wealth Tax Officer accordingly valued the life interest of each of the beneficiaries in the respective unit or units allocated to him or her and made assessment to wealth tax by including the value of such life interest But the result of making assessments on this basis on the several beneficiaries was . that the value of the 'remainder wealth' in respect of l 66t units escaped tax. The Wealth Tax Officer was of the view that -the beneficiaries in respect of the several remainder estates after the lives of the immediate beneficiaries mentioned in the Second Schedule were unknown and their shares undeterminate and the assessees were, therefore, liable to be assessed in respect of the remainder wealth under section 21, sulr section (4) of the Wealth Tax Act. The Wealth Tax Officer accordingly reopened the assessments made on the assessees for the assessment years 1957-58 to 1960-61 and made fresh assessments on the assessees in respect of the 'remainder wealth' by applying the provisions of section 21, sub-section ( 4). He arrived at \\he value of the remainder wealth by taking the value of the entire original corpus and deducting therefrom the value of 5 units allocated to the Reserve Fund, the value of 3! units allocated to the Family Trust Expenses Account and the aggregate of the values of the life interests assessed in the hands of the several beneficiaries. Similar assessment was also made on the assesses in respect of the remainder wealth for the assessment year 1961-62.\n\nThe assessees appealed to the Appellate Assistant Commissioner against the assessments made on them in respect of the remainder wealth and in the appeals, they contended that the Trust Deed created distinct and separate trusts for the benefit of the several beneficiaries mentioned in the Second Schedule and the Wealth Tax Officer was, therefore, not justified in_ clubbing the entire remainder wealth relating to these distinct and separate trusts in a single assessment on the assessees and a further contention was also urged by them that, in any event, the assessments were bad in law inasmuch as the provisions of section 21, sub-section (4) were not applicable to the facts and circumstances of the case. The Appellate Assistant Commissioner agreed with the -first contention of the assessees and held that though there was only one single Deed of Trust, it created several distinct and separate trusts, one in favour of each beneficiary mentioned in the Second Schedule with its own independent and complete provision in regard to devolu- ( tion after the death of such beneficiary and on this view, the Appellate Assistant Commissioner annulled the assessments made on: the assessees in respect of the remainder wealth, leaving it open to the Wealth Tax Officer \"to take such steps as he may consider necessary to assess the remainder wealth pertaining to each distinct trust separately\"_ This view taken by the Appellate Assistant Commissioner rendered it unnecessary to decide the second contention as to the applicability of section 21, sub-section ( 4).\n\n The Revenue being aggrieved by the order passed by the Appellate Assistant Commissioner preferred appeals before the Tribunal on the\n\n' I\n\nmain ground that there was only one single trust created by the Trust Deed and not several distinct and separate tru.sts. Two further contentions were also sought to be urged on behalf of the Revenue at the hearing of the appeals and one of them was, and that is the only contention material for our purpose, that the Appellate Assistant Commissioner should have \"given a definite finding regarding the applicability of section 21, sub-section (4) or section 3 to the facts of the case\".\n\nThe argument of the Revenue in regard to this contention was that the assessees were liable to be assessed as an 'individual' under section 3 in respect of the entire corpus of the trust fund and section 21, sub-section ( 4) being merely a machinery section did not have the effect of over- ; iding the charge imposed on the assessees under section 3. The Tribunal allowed the Revenue to raise this new contention, but made it clear that it would be only \"for the purpose of supporting the assessments .already made and not for the purpose of enhancing the assessments\".\n\nThe answer given by the asscssees to this contention was that section 3 had no application at all, because the assessees as trustees would be an . 'association of persons' and under the Wealth Tax Act an 'association of persons' is not an assessable entity and they went on further to say that they could not be assessed even under sub-section (1) or subsection ( 4) of section 21, since in respect of the remainder estate after the death of each relative, the beneficiaries were unknown. The asses- sces also contended that, in any event, even if section 3 were applicable, the assessment on the assessee could be made only in accordance with the provisions of section 21, since section 3 was subject to the other provisions of the Act including section 21. It was also urged on behalf of the assessees that the Trust Deed created distinct and separate trusts in respecl of lhe several units allocated to the beneficiaries mentioned in the Second Schedule and in any event, even if the trust was a single indivisible trust, the remainder estate in respect of the several units was required to be assessed separately in the hands of the assessees and to the assessment of such remainder, it was sub-section (1) of section 21 which applied and not sub-section (4) of section 21.\n\nThe Tribunal, on a proper construction of section 3 and 21, came to the conclusion that these two sections have to be read together and so read it was clear that section 3 was subject to section 21 and the assessees could not, therefore, be assessed to wealth tax under section 3 in respect of the entire corpus, ignoring the provisions of section 21. Sub-section (1) of section 21 was, in the view of the Tribunal, not applicable and the only question, therefore, was whether assessment could be mape on the assessees under sub-section (4) of section 21. The Tribunal held that it was not correct to say that sub-section (4) of section 21 was not applicable in the present case on the ground that the beneficiaries in respect of the remainder estate were unknown and proceeded to apply the provisions of section 21, sub-section ( 4) in the assessment of the assessees. The Tribunal accepted the contention of the Revenue that there was only one single trust created by the Trust Deed and not as many trust as there were beneficiaries, but all the same it held, on the application of section 21, sub-section (4) that \"even if the Trust Deed be viewed as a single trust, separate assessments should be made on the trustees in respect of the several units allocated to the groups of the several beneficiaries mentioned in the Second Schedule\".\n\nThe result was that the appeals filed by the Revenue were dismissed.\n\nThe Revenue thereupon applied to the Tribunal for referring to the High Court certain questions of law said to arise out of the order of the Tribunal and on the application of the Revenue, the Tribunal referred the following questions for the decision of the High Court :\n\n\"(i) Whether the Trustees are liable to be assessed under section 3 of the Wealth-tax Act in the status of an 'individual' ?\n\n(ii) Whether, on the acts and in the circumstances of the\n\nc~e, the Appellate Tribunal was right in holding that the provisions of section 3 of the Wealth Tax Act should not be considered as subject to the provisions of section 21 of the above Act?\n\n(iii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in refusing to admit the additional ground filed on behalf of the Department (in W.T.A. No. 690 to 694 of 1963-64) except to the extent of supporting the assessment as made ?\n\n(iv) Whether, on a proper construction of the trust deed in question, the Tribunal was correct in holding that the settlor had created only one trust in favour of several beneficiaries and not separate and independent trust in favour of several beneficiaries or groups of beneficiaries?\n\n(v) Whether, having held that a single trust , was created by the trust deeds, the Tribunal was correct in Jaw in holiling that under section 21 ( 4) of the Act the remainder wealth could be assessed in respect of each of the several units or groups of units allocated in favour of the beneficiaries specified under the relevant trust deeds ?\n\n(vi) Whether, on the facts and in the circumstances of the case and on a proper construction of the provisions of section 21 of the Act, the Tribunal was right in holding that the provisions of section 21 ( 4) are_ applicable in the circumstances of this case ?\"\n\n' So far as the first question is concerned, the High Court answered it in favour of the Revenue by holding that the trustees are liable to be assessed as an 'individual' under section 3, because the word 'individual' in section 3 is wide enough to include a group of persons forming a unit.\n\nBut section 3 being subject to the provisions of section 21, the High Court held, in answer to the second question, that it was not permissible to_ the Revenue to tax the trustees under section 3 ignoring the provisions of section 21. The High Court held that the assessm-ent on the trustees could be made only in accordance with the provisions of section 21. The question then was as to which sub-section of section 21 applied in the present case: sub-section (1) or sub-section (4).\n\nThe High Court took the view that on the relevant valuation date, it was not possible to say that the beneficiaries of the remainder estate in respect of each set of unit or units allocated to the respective relatives:\n\n,_ '\n\nSp&(lified in the Second Schedule were unknown or their shares were\n\nierminate so as to attract the applicability of sub-section ( 4) of s~n 21. The High Court observed that it could be predicated with\n\nctainty and definiteness on the relevant valuation date as to who would succeed to the corp1'1s of each set of unit or units and in what shares, ii the conditions for the vesting of the corpus were fulfilled on that date.\n\nThe High Court accordingly held that sub-section ( l) of section 21 was applicable to the facts of the case and the assessment on the assessees was liable to be made in conformity with that provision. The High Court then addressed itself to the fourth question and held that the Tribunal was not right in holding that the Trust Deed created one single indivisible trust but there. were really several distinct and separate trusts created by the Trust Deed in favour of each of the rel; ltives mentioned in the Second Schedule. This view taken by the High Court necessarily resulted in questions Nos. ( v) and (vi) being answered in favour oJ the assessees. That left the third question, but so f; ar as that is concerned, the High Court took the view that it was not necessary to consider it in view of the answers given to the other questions_ It is this decision of the High Court on the various questions referred by the Tribunal which is impugned in the present appea'.s preferred by special leave.\n\n. Before we take up the questions of law that arise for consideration in these appeals, we may clear the ground at the outset by pointing out thllt though before the High Court, it was contended on behalf of the assessees that they were not liable to be assessed to wealth under section 3 since, unlike the charging section in the Income-tax Act, section\n\n3 .did not provide for levy of wealth tax on 'association of persons', his contention was not pressed before us and it was conceded, and in our E: opinion rightly, that the assessees constituted an assessable unit and were liable to be assessed to wealth tax as 'individual' under section 3.\n\nThis position indeed cou.Jd not be disputed after the decision of this Court in Trustees of Gordhandas Govindram Family Charity Trust v.\n\nCommissioner of Income-Tax, Bombay.(') But the question is whether assessment could be made on the assessees under section 3 apart from and without reference to section 21. That depends on the true meaning F and effect of sections 3 and 21 and the inter-relation between these two sections. Section 3 is the charging section and it levies the charge of wealth tax on the net wealth of the assessee on the relevant valuation date. 'Net wealth' is defined in section 2 (m) to mean \"the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date is in excess of the aggregate value of all G the tlebts owed by the assessee on the valuation dat \". It is ?lear from this definition that any property, wherever .located, 'belongmg to' the assessee on the relevant valuation date would be includible in the net wealth of the assessee assessable to wealth tax.\n\nOne argument based on semanlics advanced on behalf of the assessees was that assets held by a trustee in trust for others cannot be said to be assets belonging to the trustee so as to be includible in his net wealth. The H assets so held \"are not trustee's property in any real sense\" : they are\n\n(I) 88 l.T.R. 47\n\nthe property of the beneficiaries and, to use the words of Lord Mac Naughton in Heritable Reversionary Co. Ltd. v. Millar,('!) the benefici• aries are the true owners all along. The trustee of a trust cannot, therefore, be assessed to wealth tax in respect of the trust properties under section 3. It was for this reason, contended the assessees, that special provision had to be made in section 21 for assessing the trustee and hence assessment on the trustee could be made only in accordance w1m such special provision. This was precisely the argument which fmmd favour with the Gujarat High Court in Commissioner of Wealth-Tax, Gujarat v. Kum. Manna G. Sarabhai(') which was a case decided by a Division Bench presided over by one of us (Bhagwati, J. as the Chief Justice). On this argument, the trustee of a trust would not be liable to be assessed to wealth tax in respect of the trust properties under' section 3. It is only by reason of section 21 that he would be q.ssessable and hence assessment cannot be made on him except in accordance with the provisions of section 21. Prima facie, there seems to be force in this argument, bnt we do not think it necessary to express any final opinion upon it; since there is an alternative argument advanced on behalf of the assessees which is quite substantial and leave no room for judicial doubt or hesitation.\n\nD Let us assume that the trustee of a trust would be assessable in respect o! the trust properties under section 3, even in the absence of section 21. But section 3 imposes the charge of wealth tax 'subject to the other provisions' of the Act and these other provisions include section\n\n21. Section 3 is, therefore, made expressly subject to section 21 and it most yield to that section in so far as the latter makes special provision for assessment of a trustee of a trust. Section 21 is mandatory in its 'E terms and as it stood at the material time it provided as follows :\n\n\"21 (1) In the case of assets chargeable to tax under this Act which are held by a court of wards or an administratorgeneral or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise (including a trustee under a valid deed of wakf), the wealth-tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upou and recoverable from the person on whose behalf the assets are held, and the provisions of the Act shall apply accordingly.\n\n(2) Nothing contained in sub-section (1) shall prevent either the direct assessment of the person on whose behalf the assets above referred to are held, or the recmery from H such person of the tax payable in respect of such assets.\n\n(I) (1892) A.C. 59~,\n\n(2) 86 l.T.R. 153\n\n(3) Where the guardian or trustee of any person being a minor, lunatic or idiot (all of which persons are hereinafter in this sub-section included in the term \"beneficiary\") holds any assets on behalf of such beneficiary, the tax under this Act shall be levied upon and recoverable from such guardian or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from any such beneficiary if of full age or sound mind and in direct ownership of such assets.\n\n( 4) Notwithstanding anything contained in this section, where the shares of the persons on whose behalf or for whose benefit any such assets are held are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official C trustee, receiver, manager, or other person aforesaid as if the persons on whose behalf or for whose benefit the assets are held were an individual for the purposes of this Act.\"\n\nSub-section (5) was not a part of section 21 at the material time since\n\njt was introduced only with effect from 1st April, 1965 but it throws some light on the interpretation of the other sub-sections of section D 21 and hence it may be reproduced here :\n\n\"21 (5) Any person who pays any sum by virtue of the provisions of this section in respect of the net wealth of any beneficiary, shall be entitled to recover the sum so paid from such beneficiary, and may hold on behalf or for the benefit of such beneficiary, an amount equal to the sum so paid.\" E\n\nIt would, therefore, be clear on a combined reading of sections 3 and 21 that whenever assessment is made on a trustee, it must be made in accordance with the provisions of section 21.\n\nEvery case of assessment on a trustee must necessarily fall under section 21 and he cannot be assessed apart from and without reference to the provisions of that section.\n\nTo take a contrary view giving option to the Revenue F to assess the trustee under section 3 without following the provisions Df section 21 would he to refuse to give effect to the words \"subject to the other provisions of this Act' in section 3, to ignore the maxim ge11ralia specialibu~ non derogent and to deny mandatory force and effect to the provisions enacted in section 21.\n\nIt may be noted that, while interpreting the corresponding provisions in section 41 of the Indian Income-Tax Act, 1922 and section 161 of the Income-Tax G Act. 1961, this Court in C. R. Nagappa v. Co111111issioner of lncome- Tax(1) approved the following observations made by Chagla, C.J. in regard to the scheme of section 41 of the Indian Income Tax Act, 1922 in Commlsioner of Income-tax, Ahmedabad v. Balwantrai lethalal Vaidya(2) :\n\n\"If the assessment is upon a trustee, the tax as to be .levied and recovered in the manner provided in section 41.\n\n{l) 73 I.T.R. 187.\n\n(2) 341.T.R. 187.\n\nThe only option that the Legislature gives i& the option embodied in su!J..section (2) of section 41, and that option is that the department may assess, the beneficiaries instead of the trustees, or having assessed the trustees it may proceed to recover the tax from the beneficiaries. But on principle the. contention of the department cannot be accepted that. when a trustee is being assessed to tax, his burden which will ultimately fall upon the beneficiaries should be increased and whether that burden should be increased or not should be left to the option of the department. The basic idea underlying section 41, and which is in conformity with principle, is that the liability of the trustees should be co-extensive with that of the beneficiaries and in no sense a wider or a larger liability. Therefore, it is clear that every case of an asessment against a trustee must fall under section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III.\n\nSection 41 only comes into play after the income has been computed in accordance with Chapter III.\n\nThen the question of payment of tax arises and it is at that stage that section 41 issues a mandate to the taxing department that, when they are dealing with the income of a trustee, they must levy the tax and recover it in the manner laid down in section 41.\" (Emphasis supplied by us).\n\nThis Court also observed that \"the some considerations must apply in the interpretation of section 161 (2) of the Income Tax Act, 1961 \".\n\nThe same view, it may be pointed out, was taken by this Court in an earlier decision in Commissioner of Income Tax v. Nandlal Agarwal.(') These decisions given under the Income Tax law must apply equally in the interpretation of section 21, since the relevant provisions of both the statutes are almost identical.\n\nThat was pointed out by this Court in Commissioner of Wealth Tax, Bihar & Orissa v.\n\nKripashankar Dayashanker Worah( 2 ) where it was said : \"Section 21 (1) of the Act is analogous to section 41 of the Income-Tax Act,\n\n1922. The only difference between the two sections is that whereas the former deals with assets, the latter deals with income.\n\nSubject to this difference, the two provisions are identically worded. Hence, the decisions rendered under section 41 (1) of the Indian Income-tax Act, 1922, have a bearing on the question arising for decision in this case\".\n\nIt must, therefore, be held to be incontrovertible that whenever a trustee is sought to be assessed, the assessment mnst be made in accor- . dance with the provisions of section 21.\n\nIt must also be noted that the assessment which is contemplated to be made on the trustee under sub-section (1) or sub-section (4) of section 21 is assessment in a representative capacity. It is really the beneficiaries who are sought to be assessed in respect of their interest in the trust properties through the trustee.\n\nSub-section (l) provides that in respect of trust properties held by a trustee, wealth tax\n\n(I) 59 l.T.R. 756 at 762.\n\n(2) 811.T.R. 763.\n\n8.ball be levied upon him 'in the like manner and to the same extent' as • A jt WQuld be leviable on the beneficiary for whose benefit the trust properties are held.\n\nThis provision obviously can apply only where the trust properties are held by the trustee for the benefit of a single benefu; iary or where there are more benficiaries than one, the individual shares of the beneficiaries in the trust properties are determinate and kQOwn.. Where such is the case, wealth tax can be levied on the\n\ntrustee in respect of the interest of any particular beneficiary in the B trust properties 'in the same manner and to the same extent' as it would be leviable upon the beneficiary and in respect of such interest in the trust properties, the trustee would be assessed in a representative capacity as representing the beneficiary.\n\nThis, of course, does not mean that the Revenue cannot proceed to make direct assessment on the beneficiary in respect of the interest in the trust properties which 'belongs to' him.\n\nThe beneficiary would always be assessable C in respect of his interest in the trust properties, since such interest 'belongs to' him and the right of the Revenue to make direct assessment on him in respect of such interest stands unimpaired by the provision enabling .assessment to be made on the trustee in a representative capacity.\n\nSub-section (2) makes this clear provided that nothing contained in sub-section ( l) shall prevent either the direct assessment of the beneficiary for whose benefit the trust properties 13 are held or the recovery from the beneficiary of the wealth tax in respect of his interest in the trust properties which is assessed in the hands of the trustee.\n\nThe Revenue has thus two modes of assess- 11lCl'lt available for assessing the interest of a beneficiary in the trust\n\nproperties : it may either assess such interest in the hands of the trustee , in a representative capacity under sub-section ( 1) or assess it directly in the hands of the beneficiary by including it in the net E wealth of the beneficiary.\n\nWhat is important to note is that in either case what is taxed is the interest of the beneficiary in the trust properties and not the corpus of the trust properties.\n\nSo also where beneficiaries are more than one, and their shares are indcterminates or unknown, the trustees would be assessable in respect of their total beneficial interest in the trust properties.\n\nObviously in such a case, it is not possible to make direct assessment on the beneficiaries in F respect of their interest in the trust properties, because their shares are indeterminate or unknown ru1d tl1at is why it is provided that the assesstnent may be made on the trustee as if the beneficiaries for whose benefit the trust properties are. held were on individual.\n\nThe beneficiai interest is treated as if it belonged to one individual beneficiary and assessment is made on the trustees in the same manner and tc the san:ie extent as it would be on such fictional beneficiary.\n\nIt will, G therefore, be seen that in this case too, it is the beneficial interest which is assessed to wealth tax in the hands of the trustee and not the corpus of the trust properties.\n\nThis position becomes abundantly deer if we look at sub-section (5) which dearly postulates that where a trustee is assessed nuder sub-section ( 1) or sub-section ( 4) , the assessment is made on him 'in respect of the net wealth' of the beneficiary, that is, the beneficial interest belonging to h'm.\n\nNow where- H ever there is a trust, it is obvious there must be beneficiaries under the lrllst because the very concept of a trust connotes that though the\n\n1ega'l title vests in the trustee, he does not own or hold the trust properties for his personal benefit but he holds the same for the benefit of others, whether individuals or purposes. It must follow inevitably from this premise that since under sub-section (1) and ( 4) of section 21 it is the beneficial interests which are taxable in the hands of the trustee in a representative capacity and the liability of the trustee cannot be greater than the aggregate liability of the beneficiaries no part of the corpus of the trust properties can be assessed in the hands of the trustee under section 3 and any such assessment would be contrary to the plain mandatory provisions of section 21.\n\nIt is also necessary to notice the consequences that seem to flow from the preposition laid down in section 21, sub-section ( 1) that the trustee is assessable 'in the like manner and to the same extent' as the beneficiary.\n\nThe consequences are three fold. In the first place it follows inevitably from this proposition that there would have to be as many assessments on the trustee as there are beneficiaries with determinate and known shares, though for the sake of convenience, there may be only one assessment order specifying separately the lax due. in respect of the wealth of each beneficiary. Secondly, the assess- )Ilent of the trustee would have to be made in the same status as that of the beneficiary whose interest is sought to be taxed in the hands of the trustee. This was recognised and laid down by this Court in N. V. Shanmugham & Co. v. Commissioner of Income-Tax Madras (') And lastly, the amount of tax payable by the trustee would be the same as that payable by each beneficiary in respect of his beneficiaf interest, if he were assessed directly.\n\nVide Padmavati Jayakrishna: Trust v. Commissioner of Wealth-Tax, Gujarat( 2 ) Trustees of Putlibai R. F. Mulla Trmt v. Commissioner of Wealth-Tax.(') and' Chi11ta111a11i Ghosh v. Commissioner of Wealth-Tax.(') Let us, by way of illustration, take a case where property of the value of Rs. ten lacs is held in trust under which the income of the property is given to A for life and on his death, the property is to be divided equally between B and C.\n\nThe beneficiaries in this case are clearly A, B and C, A having life interest in the trust property and B and C having equal shares in the remainder. The Revenue has option to assess the beneficial interests of A, B and C in the trust property in the hands of the trustee or to make direct assessment on each of the three beneficiaries. If the trustee is assessed under sub-section (1) of section 21, three separate assessments would have to be made on him, one in respect of the acturial valuation of the life interest of A, which may be, to take an ad hoc figure, say, RB. 5 lacs and the other two in respect of the acturial valuations of the remaindermen's interests of B and C, which may be, to take again an ad hoc figure, say, Rs. 2 lacs each.\n\nBut, as pointed out above, the Revenue may, instead of assessing the trustee, proceed to make direct assessment on each of the three beneficiaries A, B and C and in that case, Rs. 5 lacs, Rs. 2 lacs and Rs. 2 lacs would be included in the net wealth of A,.\n\n(I) 81 I.T.R. 310\n\n(2) 61 I.T.R. 66; at 73-4.\n\n(3) 66 I.T.R. 653, at 657-8\n\n(4) 80 I.T.R. 331 at 341.\n\nB and C respectively.\n\nThe result would be that though the value of A the corpus of the trust property is Rs. 10 lacs, the assessments, whether made on the trustee or on each of the three beneficiaries, would be only in respect of Rs. 5 lacs, Rs. 2 lacs and Rs. 2 lacs and the balance of Rs. 1 Jae would not be subject to taxation. In fact in most cases, if not all, the aggregate of the values of the life interest and the remaindermen's interest would be less than the value of the total\n\ncorpus of the trust property, since the value of the remaindermen's B interest would be the present value of his right to receive the corpus of the trust property at an uncertain future date and this would almost\n\ninvariably be Jess than the value of the corpus of the trust property after deducting the value of the preceding life interest. _The balance of the value of the corpus of the trust property would not, in the result, be subjected to assessment to wealth tax.\n\nBut that is the logical and inevitable effect of the schemes of section 21.\n\nOnce il C is: )lStablishcd that a trustee of a trust can be assessed only in accordU!lCe with the provisions of section 21 and under these provisions, it. is only the beneficial interests which are taxed in the hands of th~ trn$tee, it must follow as a necessary corollary that no part of the value of the corpus in excess of the aggregate value of the beneficial interests can be brought to tax in the assessment of the trustee.\n\nTo do 'so would be contrary to the scheme and provisions of section 21.\n\nD It would be clearly erroneous to assess the trustee to wealth 1ax on the excess of the value of the corpus over the acturial valuations of the life interest and the revcrsionary interest of the beneficiaries.\n\nWe find that the same view has been taken by the Gujarat High Court in Commissioner of Wealth Tax, Gujarat v. Smt. Arundhali Bc.lkrishna Trust(1 ) and this view, in our opinion, represents the correct law on\n\nthe subject.\n\nWe have given in the preceding paragraph illustration of a case falling within section 21, sub-section (1), but the illustration can be slightly modified by taking a case where property is held in trust for giving income for life to A and on his death, to such of the children of A as the trustee might think fit.\n\nSection 21, sub-section ( 4) would F be. clearly attracted in such a case so far as the reversionary interest is concerned, because, on the relevant valuation date, the remaind.ermen and their shares would be indeterminate and unknown. But here also two assessments would have to be made on the trustee : one in respect of the acturial valuation of the life interest of A under sub-section (1) of section 21 and the other in respect of the acturial valuation of the totality of the beneficial interest in the remainder G as if it belonged to one individual under sub-section ( 4) of section 21.\n\nThe difference between the value of the corpus of the trust property and the aggregate of the acturial valuations of the life interest of .A and the remaindermen's interest would not be assessable in th~ hands of the trustee because, as pointed out above, the trustee can be taxed only ii; t respect of the beneficial interests and there being no other beneficiary apart from A and such of the children of A as the tmstee might think fit, the balance of the value of the corpus cannot H\n\n(l) 101 l.T.R. 626\n\nA be brought to tax in the hands of the trustee under sub-section,\\i.l or (4) of section 21.\n\nIt is, therefore, obvious that no part of the corpus of the wst funds could be assessed in the bands of the assessees, but the asses!iment could be made on the assessees only in respect of the beneficilil interests of the beneficiaries in the trust funds under sub-sction tO and (4) of section 21. Now so far as the beneficiaries specified iD the Second Schedule are concerned, each of them had a lite mtmest in the unit or units allocated to him or her and the assessees w.ere liable under sub-section (1) of secti9n 21 to be assessed in respect of such life interest 'in the same manner and to the same extent' as the respective beneficiaries.\n\nBut the questiom i;; as lo how the beneficial interest in the remainder in respect of each set of unit or units was liable to be taxed in the bandi of the assessees.\n\nThe argument of the Revenue was that it ooUld not be said on the relevant valuation date as to who wGlfcl bii the beneficiaries entitled to the remainder on the deafu of the concerned relative and hence the beneficiaries were indetermin!lle and .unknown on the relevant valuation date and in the circumstancet1, sub-secton (1) of section 21 bad no application. Sub-sectioll (4) of .section 21 was also not attracted, said the Revenue, because that Slilb-section could apply only where the shares of the beneficiaries were indeterminate or unknown a.ud not where the beneficiaries tem selves were indeterminate and unknown.\n\nThe Revenue contended, 'on the basis of this argument, that since the beneficial interest in the ~1) mainder in respect of each set of unit or units was not taxable eit'hcr under sub-section (1) or sub-section (4) or section 21, the assessees\n\nwere liable to be assessed in respect of the value of the corpus '-of such unit or units minus the valuation of the life interest under section 3.\n\nBut this contention is plainly erroneous, because, on the lfiew we have taken as regards the interpretation of section 3 and 21, a trustee can be assessed to wealth tax ouly in respect of the beneficial interests of the beneficiaries and no assessment can be lllll.de on him in respect of any part of the corpus of the trust funds apart from and without reference to section 21.\n\nWe shall presenUy show that under the Trust Deed on each relevant valuation date the shares of the beneficiaries in the remainder in respect of each set of nnit or units were determinate and known and the case was, therefore, governed by sub-section ( 1) of section 21, but we may point ot.it that even if the beneficiaries were indeterminate or unknown, sub-section ( 4) of section 21 would apply and the assessee would be liable to fhe assessed in respect of the totality of the beneficial interest in the remainder as if it belonged to one single beneficiary.\n\nWhen the beneficiaries are indeterminate or unknown, then obviously their shares would also be indeterminate and unknown.\n\nWe cannot co.nccive , Qf a case where the shares would be determinate or known while the beneficiaries are indeterminate and unknown.\n\nThe expression 'where the shares of the beneficiaries are indeterminate or unknown' carried with it by necessary implication, a s; tuation where the bcneficiarie& themselves are indeterminate or unknown.\n\nSuch, for example, would be the case in the' modified illustration given above.\n\nThere. the beneficiaries are such of the children of A as the trustee might think fit\n\nI I\n\n-I,\n\n...\n\nand the beneficiaries themselves would, therefore, be indeterminate and unknown and yet sub-section ( 4) of section 21 would apply to their 'Case.\n\nTo take any other vtiew would be to deny full meaning and effect to the words \"where the shares of the beneficiaries are indeterminate or unknown\" and to create a lacuna where, even though the. beneficial interest in the remainder is disposed of under the Trust Deed, such beneficial interest would escape assessment. The correct interpretation of sub-section ( 4) of section 21 must, therefore, be that even where the beneficiaries of the remainder are indeterminate or unknown, the trustee can. be assessed to wealth tax in respect of the totality of the beneficial interest in the remainder, !treating the beneficiaries fictionally as an individual.\n\nThis immediately takes us to the question as to which of the two sub-sections, (1) or (4) of section 21 applies for the purpose of asses- C sing the assessees to wealth tax in respect of the beneficial interest in the remainder qua each set of unit or units allocated to the relatives specified in the Second Schedule.\n\nNow it is clear from the language of section 3 that the charge of wealth tax ns in respect of the net wealth on the relevant valuation date, and, there.fore, the question in regard to the applicability of sub-section (1) or (4) of section 21 has to be determined with reference to the relevant valuation date.\n\nD The Wealth Tax Officer has to determine who are the 'beneficiaries in respect of the remainder on the relevant date and whether their shares are mdeterminate or unknown.\n\nIt is not at all relevant whether the beneficiaries may change in subsequent years before the date of distribution, depending upon contingencies which may come to pass in future.\n\nSo long as it is possible to say on the relevant valuation date that the beneficiaries are known and their shares are determinate, E the possibility that the beneficiaries may change by reason of subsequent events such as birth or death would not take the case out of the ambit of sub-section (1) of section 21.\n\nIt is no answer to the applicability of sub-section ( 1) of section 21 to say that the beneficiaries are indeterminate and unknown because it cannot be predicated who would be the beneficiaries in respect of the remainder on the death of the owner of the life interest.\n\nThe position has to be seen on the F relevant valuation date as if the preceding life interest had come to an end on that date and if, on that hypothesis, it is possible to determine who precisely would be the beneficiaries and on what determinate shares, sub-section ( 1) of section 21 must apply and it would be a ITiatter of no consequence that the number !of beneficiaries may vary m the future either by reason of some beneficiaries ceasing to exist or some new beneficiaries coming into being.\n\nNot only does this G appear to us to be the correct approach in the application of subsection (1) of.sec.ti?n 21,_ ut w_e fin~ that this h_as also been the general\n\nconensus of 1ud1cial opmon m this country m various High Courts durmg the last about thlfty years.\n\nThe first decision in which this v.iew w_as taken \\vas rendered as far back as 1945 by the Patna High Court m Khan Bahadur M. Hab1bur Rahman v.\n\nCommissioner of Income-Tax, Bihar & Orissa(') and since then, this view has been H followed by the Calcutta High Court in Subhashini Karuri v. Wealth-\n\n(l) 13 l.T.R. 189.\n\n9-707SCI/77\n\nG •\n\nSUPRE11E COURT REPORTS\n\n[1977] 3 S.C.R\n\nTax Officer Calcutta(') the Bombay High Court in Trustees of Putl1bai R.F. Mui/a Trust v. Commissioner of Wealth-Tax (supra) and Commissioner of Wealth Tax, Bombay v. Trustees of Mrs. Hansabai Tribhuwandas Trust(2) and the Gujarat High Court in Padmavati Jaykrishna Trust v. Commissioner of Income Tax, Guiarat (supra).\n\nThe Calcutta High Court pointed out in Subhashini Karuri' s case :\n\n\"The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined bur merely because the number of beneficiaries vary from time to time, one cannot say that it is ideterminate\".\n\nThe same proposition Was formulated in slightly different language by the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust's case : 'The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation.\n\nTherefore, whatever may be the position as to any future date, so far as the relevant date in each year is concerned, it is upon 'the terms of the tiust deed always possible to determine who are the shares and what their shares respectively are.\" The Gujarat High Court also observed in\n\nPadmavati Jaykrishna Trust's case : \" ...... in order to ascertain whether the shares of bene.ficiaries and their numbers were determinate or not, the Wealth-Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of section 21 applicable.\" These observations represent correct statement of the law and we have no doubt that in order to determine the applicability of sub-section (1) of section 21, what has to be seen is whether on the relevant valuation date, it is possible to say with certainty and definiteness as to who would be the beneficiaries and whether their shares would be determinate and specific, if the event on the happening of which the distribution is to take place occurred on that date.\n\nIf it is, sub-section (1) of section 21 would apply : if not, the case will be governed by sub-section ( 4) of section 21.\n\nNow, in the present case it is clear from the provisions of the Trust Deed that, in the case of each set of unit or units, it is possible to my with certainty and definiteness on each relevant valuation date as to who would be the beneficiaries and in what specific shares, if the respective relative mentioned in the Second Schedule to whom such set of, unit or units is allocated under the Trust Deed were to die on that date.\n\nThat is the view taken •by the High Court in the judgment impugned in these appeals and we.think it is a correct view on the interpretation of the provisions of the Trust Deed.\n\nWe may point out in fairness to the learned counsel appearing on behalf of the Revenue that he did not seriously contest this position.\n\nThere is not a single contingency unprovided for in the Trust Deed and whenever a relative specified in the Second Schedule, who is the owner of life interest in the set of unit or µnits allocated to him or her dies, there would always be beneficiaries capable of being easily ascertained and identified who would be entitled to the corpus of such unit or units in determinate and specific shares, either immediately on the.\n\n(I) 46 I.T.R. 527\n\n(2) 69 I.T.R. 527.\n\nc.w.T. v. TRUSTEf.S OF NIZAM (Bhagwati, J.) 7 57\n\ndeath of such life tenant or after another life interest.\n\nThe. remainder A in respect of each set of unit or units allocated to the respective relative specified in the Second Schedule was, therefore, liable to be assessed in the hands of the assessees under section 21, sub-section (1) 'in the same manner and to the same extent' as each beneficiary in respect of his determinate and known share in such remainder. That plainly excluded the applicability of sub-section ( 4) of section 21 in the assessment of the remainder.\n\nThe High Court also examined B the question whether the Trust Deed created one single indivisible trust or several distinct and separate trusts and, disagreeing with the view taken by the Tribunal, came to the conclusion that \"the Deed of Trust created several trusts in favour of the relatives specified in the Second Schedule and their issues.\" But on the view taken by us that it is sub-section (1) of section 21 and not sub-section (4) of that section which applies in the assessment of the remainder in respect of each c set of unit or units in the hands of the assessees, it is unnecessary to pursue this question and decide whether the Trust Deed created one single indivisible trust-or as many trusts as the number of beneficiaries specified in the Second Schedule.\n\nWe accordingly agree with the High Court that question No. (i) should be answered in favour of the Revenue and Question Nos. (ii),\n\n(v) and (vi) should be answered in favour of the assessees.\n\nWe do not propose to answer Questions Nos. (iii) and (iv), since in view\n\nof the answers given by us to the other questions, it is unnecessary to decide them.\n\nThe appeals are accordingly dismissed.\n\nThe Commissioner will pay the costs of these appeals to the assessees in one\n\nset.\n\nP.B.R.\n\nAppeals dismissed.", "total_entities": 259, "entities": [{"text": "COMMISSIONER OF WEALTII TAX, ANDHRA PRADESH,\n\nHYDERABAD", "label": "PETITIONER", "start_char": 0, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX, ANDHRA PRADESH, HYDERABAD", "offset_not_found": false}}, {"text": "TRUSTEES OF H.E.H. NIZAM'S FAMILY\n\n(REMAINDER WEALTH TRUST),\n\nHYDERABAD", "label": "RESPONDENT", "start_char": 57, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "TRUSTEES OF H.E.H. NIZAMS FAMILY (REMAINDER WEALTH TRUST), HYDERABAD", "offset_not_found": false}}, {"text": "May 3, 1977", "label": "DATE", "start_char": 130, "end_char": 141, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF WEALTII TAX, ANDHRA PRADESH,\n\nHYDERABAD\n\nTRUSTEES OF H.E.H. NIZAM'S FAMILY\n\n(REMAINDER WEALTH TRUST),\n\nHYDERABAD\n\nMay 3, 1977\n\n[P. N. BHAGWATI, N. L. UNTWALIA AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 144, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 160, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 179, "end_char": 204, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Wealth Tax Act 1957", "label": "STATUTE", "start_char": 207, "end_char": 226, "source": "regex", "metadata": {}}, {"text": "Ss. 3, 21(1) and 21(4)", "label": "PROVISION", "start_char": 227, "end_char": 249, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act 1957", "statute": "Wealth Tax Act 1957"}}, {"text": "Section 21(1)", "label": "PROVISION", "start_char": 261, "end_char": 274, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act 1957", "statute": "Wealth Tax Act 1957"}}, {"text": "Hyderabad", "label": "GPE", "start_char": 1095, "end_char": 1104, "source": "ner", "metadata": {"in_sentence": "The corpus of a family trust created by the Nizam of Hyderabad was notionally divided into 175 equal units, out of which 16lt units were allocated amongst relatives mentioned in the Second Schedule to the Deed in the manner specified therein."}}, {"text": "Second Schedule", "label": "PROVISION", 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"467-470 &\n\n(Appeals by Special Leave from the Judgment and Order dated 3-3-l970 of the Andhra Pradesh High Court in case Ref."}}, {"text": "G. C. Sharma", "label": "OTHER_PERSON", "start_char": 14499, "end_char": 14511, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, P. L. Juneja and R. N. Sachthey, for the appellant in all the appeals."}}, {"text": "P. L. Juneja", "label": "LAWYER", "start_char": 14513, "end_char": 14525, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, P. L. Juneja and R. N. Sachthey, for the appellant in all the appeals."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 14530, "end_char": 14544, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma, P. L. Juneja and R. N. Sachthey, for the appellant in all the appeals."}}, {"text": "N. A. Palkhivala", "label": "OTHER_PERSON", "start_char": 14585, "end_char": 14601, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "Y. V. Anjaneyulu", "label": "OTHER_PERSON", "start_char": 14603, "end_char": 14619, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "A. K. Ver11111", "label": "LAWYER", "start_char": 14626, "end_char": 14640, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "A. Subba Rao", "label": "LAWYER", "start_char": 14642, "end_char": 14654, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "Ravinder Narain", "label": "JUDGE", "start_char": 14656, "end_char": 14671, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "B . .Dadachanji", "label": "LAWYER", "start_char": 14676, "end_char": 14691, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, Y. V. Anjaneyulu, Mrs. A. K. Ver11111, A. Subba Rao, Ravinder Narain, J. B ."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 14697, "end_char": 14709, "source": "ner", "metadata": {"in_sentence": ".Dadachanji, and 0."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 14796, "end_char": 14804, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J. These appeals by speciail leave are directed against a judgment of the High Court o, f Andhra Pradesh answering certain ques, tions referred to it by the Tribunal in favour of the assessee.", "canonical_name": "BHAGWATI"}}, {"text": "sections 3 and 21", "label": "PROVISION", "start_char": 15168, "end_char": 15185, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 15193, "end_char": 15213, "source": "regex", "metadata": {}}, {"text": "Berar", "label": "OTHER_PERSON", "start_char": 15488, "end_char": 15493, "source": "ner", "metadata": {"in_sentence": "In the year 1950 the late Nawab Sir Mir Osman A.Ii Khan Bahadur, The Nizam of Hyderabad and Berar created seve.ral trusts out of which we are concerned in these appeals with the trust knowu as the Family Trust."}}, {"text": "16th May, 1950", "label": "DATE", "start_char": 15643, "end_char": 15657, "source": "ner", "metadata": {"in_sentence": "The Nizam, by a Deed of Trust 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"source": "ner", "metadata": {"in_sentence": "Part I specified the names of the Nizam's wife Laila Begum, her five sons and two daughters and his another wife Jani Begum and her minor son as beneficiaries and in Part II were mentioned the names of the other wives, sons, daughters, daughters-Jn-law, sons-in-law, would-be sons-in• law and certain other ladies of the Palace."}}, {"text": "Jani Begum", "label": "OTHER_PERSON", "start_char": 16394, "end_char": 16404, "source": "ner", "metadata": {"in_sentence": "Part I specified the names of the Nizam's wife Laila Begum, her five sons and two daughters and his another wife Jani Begum and her minor son as beneficiaries and in Part II were mentioned the names of the other wives, sons, daughters, daughters-Jn-law, sons-in-law, would-be sons-in• law and certain other ladies of the Palace.", "canonical_name": "Jani Begum"}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 16653, "end_char": 16668, "source": "regex", "metadata": 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settlor, that, though allocated one unit, he was not to receive the income of that unit so long as he received the allowance as Amir of the Vikar-al-Mulk-Paigah and till then, the income of this unit was to be added to the five uni!s allocated to the Reserve Fund created under clause ( 6) to be held upon the same trust's E as those declared in respect of such Reserve Fund."}}, {"text": "Fauzia Begum", "label": "OTHER_PERSON", "start_char": 24974, "end_char": 24986, "source": "ner", "metadata": {"in_sentence": "So far as Fauzia Begum, the daughter of the second son of the sett1or was concerned, a special provision was made that the income of two units aMocated to her should be set apart and credited in her account called 'Fauzia Begum Reserve Fuud' and on the death of the second son of the settlor during the minority of Fauzia Begum, the income of these two units should be paid to a committee of management for the G maintenance, education, welfare, advancement in life and benefit of Fa\\Jzia Begum until she attained the age of majority and during the minority of Fauzia Begum, the trustees were also authorised to spend out of the Reserve Fund such sums as may be necessary for any special.", "canonical_name": "Fa\\Jzia Begum"}}, {"text": "Fa\\Jzia Begum", "label": "OTHER_PERSON", "start_char": 25445, "end_char": 25458, "source": "ner", "metadata": {"in_sentence": "So far as Fauzia Begum, the daughter of the second son of the sett1or was concerned, a special provision was made that the income of two units aMocated to her should be set apart and credited in her account called 'Fauzia Begum Reserve Fuud' and on the death of the second son of the settlor during the minority of Fauzia Begum, the income of these two units should be paid to a committee of management for the G maintenance, education, welfare, advancement in life and benefit of Fa\\Jzia Begum until she attained the age of majority and during the minority of Fauzia Begum, the trustees were also authorised to 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"PROVISION", "start_char": 45762, "end_char": 45771, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 45928, "end_char": 45937, "source": "regex", "metadata": {"statute": null}}, {"text": "Mac Naughton", "label": "OTHER_PERSON", "start_char": 46821, "end_char": 46833, "source": "ner", "metadata": {"in_sentence": "The H assets so held \"are not trustee's property in any real sense\" : they are\n\n(I) 88 l.T.R. 47\n\nthe property of the beneficiaries and, to use the words of Lord Mac Naughton in Heritable Reversionary Co. Ltd. v. Millar,('!)"}}, {"text": "section 3", "label": "PROVISION", "start_char": 47044, "end_char": 47053, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 47145, "end_char": 47155, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 47338, "end_char": 47356, "source": "ner", "metadata": {"in_sentence": "This was precisely the argument which fmmd favour with the Gujarat High Court in Commissioner of Wealth-Tax, Gujarat v. Kum."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 47498, "end_char": 47506, "source": "ner", "metadata": {"in_sentence": "Manna G. Sarabhai(') which was a case decided by a Division Bench presided over by one of us (Bhagwati, J. as the Chief Justice).", "canonical_name": "BHAGWATI"}}, {"text": "section 3", "label": "PROVISION", "start_char": 47666, "end_char": 47675, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 47701, "end_char": 47711, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 47828, "end_char": 47838, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 48226, "end_char": 48235, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 48260, "end_char": 48270, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 48276, "end_char": 48285, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n21", "label": "PROVISION", "start_char": 48399, "end_char": 48410, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 48412, "end_char": 48421, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 48463, "end_char": 48473, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 48596, "end_char": 48606, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 50831, "end_char": 50841, "source": "regex", "metadata": {"statute": null}}, {"text": "1st April, 1965", "label": "DATE", "start_char": 50910, "end_char": 50925, "source": "ner", "metadata": {"in_sentence": "Sub-section (5) was not a part of section 21 at the material time since\n\njt was introduced only with effect from 1st April, 1965 but it throws some light on the interpretation of the other sub-sections of section D 21 and hence it may be reproduced here :\n\n\"21 (5) Any person who pays any sum by virtue of the provisions of this section in respect of the net wealth of any beneficiary, shall be entitled to recover the sum so paid from such beneficiary, and may hold on behalf or for the benefit of such beneficiary, an amount equal to the sum so paid.\""}}, {"text": "sections 3 and 21", "label": "PROVISION", "start_char": 51409, "end_char": 51426, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 51527, "end_char": 51537, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 51606, "end_char": 51616, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 51795, "end_char": 51804, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 51841, "end_char": 51851, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 51948, "end_char": 51957, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 52082, "end_char": 52092, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 52168, "end_char": 52178, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-Tax Act, 1922", "label": "STATUTE", "start_char": 52186, "end_char": 52213, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 161", "label": "PROVISION", "start_char": 52218, "end_char": 52229, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-Tax Act, 1922", "statute": "the Indian Income-Tax Act, 1922"}}, {"text": "Chagla", "label": "JUDGE", "start_char": 52371, "end_char": 52377, "source": "ner", "metadata": {"in_sentence": "1961, this Court in C. R. Nagappa v. Co111111issioner of lncome- Tax(1) approved the following observations made by Chagla, C.J. in regard to the scheme of section 41 of the Indian Income Tax Act, 1922 in Commlsioner of Income-tax, Ahmedabad v. Balwantrai lethalal Vaidya(2) :\n\n\"If the assessment is upon a trustee, the tax as to be .levied and recovered in the manner provided in section 41."}}, {"text": "section 41", "label": "PROVISION", "start_char": 52411, "end_char": 52421, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-Tax Act, 1922", "statute": "the Indian Income-Tax Act, 1922"}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 52429, "end_char": 52456, "source": "regex", "metadata": {}}, {"text": "section 41", "label": "PROVISION", "start_char": 52636, "end_char": 52646, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "section 41", "label": "PROVISION", "start_char": 52778, "end_char": 52788, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "section 41", "label": "PROVISION", "start_char": 53297, "end_char": 53307, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "section 41", "label": "PROVISION", "start_char": 53580, "end_char": 53590, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 41", "label": "PROVISION", "start_char": 53732, "end_char": 53742, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 53904, "end_char": 53914, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 54080, "end_char": 54090, "source": "regex", "metadata": {"statute": null}}, {"text": "section 161", "label": "PROVISION", "start_char": 54212, "end_char": 54223, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1961", "label": "STATUTE", "start_char": 54235, "end_char": 54255, "source": "regex", "metadata": {}}, {"text": "section 21", "label": "PROVISION", "start_char": 54489, "end_char": 54499, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1961", "statute": "the Income Tax Act, 1961"}}, {"text": "Section 21", "label": "PROVISION", "start_char": 54717, "end_char": 54727, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1961", "statute": "the Income Tax Act, 1961"}}, {"text": "section 41", "label": "PROVISION", "start_char": 54759, "end_char": 54769, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1961", "statute": "the Income Tax Act, 1961"}}, {"text": "Income-Tax Act", "label": "STATUTE", "start_char": 54777, "end_char": 54791, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 41", "label": "PROVISION", "start_char": 55029, "end_char": 55039, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act,\n\n1922", "statute": "the Income-Tax Act,\n\n1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 55051, "end_char": 55078, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 21", "label": "PROVISION", "start_char": 55318, "end_char": 55328, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 21", "label": "PROVISION", "start_char": 55465, "end_char": 55475, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 21", "label": "PROVISION", "start_char": 59732, "end_char": 59742, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 60046, "end_char": 60055, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 60135, "end_char": 60145, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 60248, "end_char": 60258, "source": "regex", "metadata": {"statute": null}}, {"text": "Vide Padmavati Jayakrishna", "label": "OTHER_PERSON", "start_char": 61220, "end_char": 61246, "source": "ner", "metadata": {"in_sentence": "Vide Padmavati Jayakrishna: Trust v. Commissioner of Wealth-Tax, Gujarat( 2 ) Trustees of Putlibai R. F. Mulla Trmt v. Commissioner of Wealth-Tax.(')"}}, {"text": "section 21", "label": "PROVISION", "start_char": 62060, "end_char": 62070, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 63811, "end_char": 63821, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 63936, "end_char": 63946, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 64315, "end_char": 64325, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 64842, "end_char": 64852, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 65078, "end_char": 65088, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 65475, "end_char": 65485, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 65661, "end_char": 65671, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 66263, "end_char": 66273, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 66562, "end_char": 66572, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 66623, "end_char": 66638, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 67420, "end_char": 67430, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 67472, "end_char": 67482, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 67931, "end_char": 67941, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 68094, "end_char": 68103, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3 and 21", "label": "PROVISION", "start_char": 68217, "end_char": 68233, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 68473, "end_char": 68483, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 68744, "end_char": 68754, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 68861, "end_char": 68871, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 69804, "end_char": 69814, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 70212, "end_char": 70222, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 70591, "end_char": 70601, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 70800, "end_char": 70815, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 70855, "end_char": 70864, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 71049, "end_char": 71059, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 71782, "end_char": 71792, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 71855, "end_char": 71865, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 72342, "end_char": 72352, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 73532, "end_char": 73551, "source": "ner", "metadata": {"in_sentence": "The Calcutta High Court pointed out in Subhashini Karuri' s case :\n\n\"The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined bur merely because the number of beneficiaries vary from time to time, one cannot say that it is ideterminate\"."}}, {"text": "Subhashini Karuri", "label": "OTHER_PERSON", "start_char": 73567, "end_char": 73584, "source": "ner", "metadata": {"in_sentence": "The Calcutta High Court pointed out in Subhashini Karuri' s case :\n\n\"The share of a beneficiary can be said to be indeterminate if at the relevant time the share cannot be determined bur merely because the number of beneficiaries vary from time to time, one cannot say that it is ideterminate\"."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 73898, "end_char": 73915, "source": "ner", "metadata": {"in_sentence": "The same proposition Was formulated in slightly different language by the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust's case : 'The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation."}}, {"text": "Putlibai R.F. Mulla Trust", "label": "ORG", "start_char": 73931, "end_char": 73956, "source": "ner", "metadata": {"in_sentence": "The same proposition Was formulated in slightly different language by the Bombay High Court in Trustees of Putlibai R.F. Mulla Trust's case : 'The question whether the shares of the beneficiaries are determinate or known has to be judged as on the relevant date in each respective year of taxation."}}, {"text": "Padmavati Jaykrishna Trust", "label": "ORG", "start_char": 74412, "end_char": 74438, "source": "ner", "metadata": {"in_sentence": "The Gujarat High Court also observed in\n\nPadmavati Jaykrishna Trust's case : \" ...... in order to ascertain whether the shares of bene.ficiaries and their numbers were determinate or not, the Wealth-Tax Officer has to ascertain the facts as they prevailed on the relevant date and therefore any variation in the number of beneficiaries in future would not matter and would not make sub-section (4) of section 21 applicable.\""}}, {"text": "section 21", "label": "PROVISION", "start_char": 74772, "end_char": 74782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 74942, "end_char": 74952, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 75294, "end_char": 75304, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 75376, "end_char": 75386, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 75707, "end_char": 75722, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 76242, "end_char": 76257, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 76819, "end_char": 76834, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 76909, "end_char": 76919, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 77129, "end_char": 77139, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 77489, "end_char": 77504, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 77582, "end_char": 77592, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 77934, "end_char": 77949, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_758_766_EN", "year": 1977, "text": "t758\n\nSTATE OF WEST BENGAL ETC.\n\nMANMAL BHUTORIA & ORS. ETC.\n\nMay 3, 1977\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]\n\nPrevention of Corruption Act, 1941-S. 5(2)-Scope of a Retired Army Officer and an outsider prosecuted under s. 5 (2 )-ProsecuJion, if valid-If i.\n\nSpecial Court under the West Bengal Criminal Law A1nendment (Special Courts) Act, 1949 could try the case.\n\nIn May 1967. a case was lodged against the respondent and a Major of the Indian Army who was retired in 1966, alleging that the Major, along with the respondent, had -committed offences of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant, under s. 5(2) of the Prevention of Corruption Act, 1947. When the case, which was allotted to the Fourth Additional Special Court under s. 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, came up for hearing the respondent filed a writ petition challenging its jurisdiction to try\n\nth~ case. The order of allotment to the Special Court was held illegal by the High Court on the ground that the Special Court had no jurisdiction to try a person who had ceased to be a public servant on the date the Court was required to take cognisance of the offence since it could not be said that in certain respects he was a public servant and in certain others he was not.\n\nIt \\Vas contended on behalf of the respondent that (1) since the case invol-ved interpretation of Art. 14 of the Constitution it should be referred to a larger Bench in view of Art. 144(A) of the Constitution; (2) in view of the definition of public servant contained in s. 21 IPC, a public servant is one who is in office and not one who has ceased to be in office; (3) in view of s. 10 of the Bengal A.ct the Special Court had no jurisdiction to try the offence; and ( 4) the respondent, not being a public servant, is outside the provisions of the B'2ngal Act and the Prevention of Corruption Act.\n\nAllowing the appeal.\n\nHELD : (1) There is no substance in the contention that the appeal should be referred to a larger Bench. The plea of applicability of Art. 14 on the basis of the JUdgment in S. A. Venkataraman v. The State [1958] S.C.R. 1037 is wholly misconceived. r764 Gl\n\n(a) In view of the decision in Venkataraman's case there is no warrant for including in one category public servants in office and public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in C. R. Bansi v. State of Maharashtra [1971] 3 S.C.R. 236. (764 El\n\n(b) It cannot be argued that the decision in Venkatararian'5 case is violative of Art. 14 of the Constitution. That decision only says that s. 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the Court he ceases to be so.\n\nBecause a particular sectiQTI is not applicable to a public servant after he has ceased to be in office, the question of the Act being violative of Art. 14 will not arise..\n\nThis Court has clearly placed a public servant, who has ceased to be in office, in. a separate caegory al!d the clMsification has held the field all these years without demur. [764 F-G]\n\n( c) The proviso to s. 4( 1) of the Bngal Act cannot attract Art. 14.\n\nBy this proviso the Special Court, when trying a schedule offence finds that some other offence has also been committed, and the trial of the same in one trial is permissible under the Cr.P.C., it may try such a charge. Under s. 4(1) of the Bengal Act a scheduled offence which includes an offence under s. 5 (2) of\n\nthe Prevention of Corruption Act as also conspiracy to commit that offence A shall be triable by Special Courts only.\n\nNo other court can try those offences.\n\n[764 H, 765 B-C]\n\nThe State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 held inapplicable.\n\n(2) Section 21 JPC does not afford a true test in determining the present controversy. The crucial date for the purpose of attracting the provisions of the Act as well as those of the Bengal Act is whether the offence had been committed by a public servant within the definition of s. 21 !PC. The date for determining the offence is the date of the commission of the offence when the person arraigned must be a public servant. Section 6 makes a clear dis tinction between cognizance of an offence and alleged commission of an offence. The date of sanction is necess; nily subsequent to the date of commis sion of the offence and some times far remote from that date. Retirement, resignation, dismissal or removal of a public servant would not wipe out the offence \\1.'hich he had committed while in service.\n\nUnder s. 6 ( 1), as in the case of s. 190(1) Cr.P.C., the Court takes cognizance of an offence and not an offender. [765 E-GJ\n\n\n\\3) Section 10 of the Bengal Act which provides that the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act are clearly attracted.\n\nSection 6 is interpreted by this Court not to apply to a public servant who has ceased to be in office. That would not affect the interpretation of s. 10 of the Bengal Act. [766 A-Bl\n\n( 4) There is no merit in the sublnission that the special Court cannot try the offence under s. 5(2) of the Act read withs. 120B IPC against the respon dent.\n\nEven under the Prevention of Corruption Act, an outsider can be prose cuted under s. 5(3) of the Act when a person habitually commits an offence punishable under s. 165A, IPC. Section 165A which provides that \"whoever, abets an offence punishable under s. 161 ors. 165, whether or not that offence\n\nis committed in consequence of the abetment, shall punished .... \" is clearly E\n\npplicabie to an outsider who may abet a public servant. Item 8 of the Schedule to the Bengal Act mentions any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1, 2. 3 and\n\n7. It is clear that under item 8 of the Schedule an outsider can be tried along wiih a pubhc srvant if the former abets or commits an offence of conspiracy 10 commit an offence under s. 5 of the Prevention of Corn1ption Act which is mentioned in item 7 to the Schedule. [766 C-E]\n\nCIVIL APPELLATE Ju1USDICTION: Civil Appeal No. 1134 of 1973.\n\n(From the judgment and Order dated 14-7-1972 of the Calcutta High Court in Appeal from Original Order No. 253 of 1969).\n\nCRIMINAL APPELLATE JURISDICTION.: Criminal Appeal No. 319 of 1974. (Appeal by special leave petition from the .iudgment and order G dated 4-10-1973 of the Delhi High Court in Criminal Revision No. 264 of 1973).\n\nCRIMINAL APPEAL No. 358 of 1976. (Appeal by Special Leave from the Judgment and Order dated 30-7-1976 of the Special Judge Delhi in criminal C.C. No. 16 of 1975).\n\nH V. P. Raman, D. N. Mukherjee and G. S. Chatterjee, for the appellant in C.A. No. 1134173.\n\nA Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No. l, in CA 1134/73.\n\nR. N. Sachthey, for the respondent No. 3 in CA No. 1134/73.\n\nPraveen Kumar, for the appellant in Cr!. A. No. 319 /7 4.\n\nB R. N. Sachthey, for respondent No. 1 in Crl. A No. 319174.\n\nR. H. Dhebar and B. V. Desai for the appellant in Cr!. A. No. 358 of 1976.\n\nV. P. Raman and R. N. Sacl; they, for the respondents in Cr!. A.\n\nNo. 385/76.\n\nC The Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nIn these appeals a common question of law arises for osideration., We will therefore refer to the. facts as appearing m C!Vll Appeal No. 1134 of 1973 to decide the issue and our decision will govern these appeals.\n\nWe are informed that the sole appellant in Criminal Appeal No. 319 of 1974 died. The said appeal, therefore, abates and is dismissed.\n\nCivil Appeal No. 1134 of 1973 is directed against the judgment o± the Division Bench of the Calcutta High Court whereby the earlier judgment of the single Judge was reversed. The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman. It was alleged that R. C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from a fictitious nominee of the said respondent for supply F of certain stores to the military authorities at a price exceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India.\n\nIt was further alleged that the said Bhattacharjee along with the respondent had committed offence of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage which amounted to an offence G under section 5(2) of the Prevention of Corruption Act, 1947.\n\nAccused Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any form of military service.\n\n A case under the Prevention of Corruption Act, 194 7 (hereinafter, briefly the Act) can be tried only by a special court constituted under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949) (briefly the Bengal Act). By a notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth\n\nAdditional Special Conrt in Calcutta under sub-section (2) of Section 4 of the Bengal Act. When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that-\n\n(!) at the point of time when the case was distributed to the Special Court the co-accused, ex-Major Bhattacharjee, had ceased to be a public servant and as such the Bengal Act had no applica\\ion and the said Court had no jnrisdiction to entertain the case;\n\n(2) a public officer having ceased to be such an officer at the date of allotment of the case the order of allotment by the State Government was without jurisdiction and void; C and\n\n(3) the Special Court had no jurisdiction to try cases in which two private persons were involved and the allotment of the case to the Special Court was thus illegal.\n\nA point regarding absence of sanction was also taken up but was D not pressed before us in view of the decision of this Court in S. A.\n\nVenkataraman v. The State(').\n\nThe single Judge of the High Court dismissed the writ application but the Division Bench by two concurring judgments set aside the said judgment and order of the single Judge. That is how this matter has come before us on certificate under Article 133(1) (c) of the Constitu- E ti on.\n\nP. B. Mukherjee, J. held-\n\n\" ...... the only solution is to hold that these two acts, namely, the Special Courts Act and the Prevention of Corruption Act do not apply-to a pnblic servant who had ceased to be a public servant on the date the co)lrt takes cognizance.\n\nF This solution seems all the more proper because it seems to steer clear of Article 14 of the Constitution \"\n\nThe learped Judge further observed-\n\n\"Therefore a person who has ceased to be in office, that is, who has ceased to be a public servant, does not come within the ambit of the expression 'public servant' and consequently is not governed by the Prevention of Corruption Act and, as such, cannot commit an offence under section 5 (2) of the said Act\".\n\nThe learned Judge again observed-\n\n\"lt will appear that though Major Bhattacharjee had ceased to be a public servant, the state Government by dis- H tributing the present case to the Special Court violated the\n\n(l) [1958] S.C.R. 1037.\n\nprinciple of equal protection clause by denying the advantages associated with the office of a public servant but imposing on him the disadvantages and/or disabilities associated with the office of a public servant.\n\nHence the Act is not discriminatory but the action, allotment and distribution of this case to the Special Court of the State Government is discriminatory.\n\nTherefore it is to be struck down and the order of the distribution quaBhed''.\n\nThe learned Judge also observed-\n\n\" .... but a public servant who has ceased to be a public servant, can neither be prosecuted in respect of any scheduled offence nor of an offence under section 5 (2) of the c Prevention of Corruption Act and as such, the trial of such a person cannot be in accordance with the provisions of those two statutes\".\n\n* • • *\n\n\" so far as the appellant Manmal Bhutoria is concerned, he never being 'a public servant' is clearly not triable by the Special Court under the Prevention of Corruption Act and West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and suffer all the handicaps of being presumed to be guilty\".\n\nB. C. Mitra, J. in his concurring judgment observed as follows :-\n\n\"On a careful consideration of the various clauses under s. 21 of the Penal Code, I have no doubt that a person who was previously a public servant, but who has ceased to be such, do not come within the ambit of that section.\n\n• • * * Both s. 5 (1) and s. 5 (2) deal with public servants only.\n\nThere is no provision in this Act whereby a person who was previously a public servant, but has ceased to be a public servant at the relevant time, can be charged with an offence under s. 5(1) (d) or s. 5(2) of the Prevention Act''.\n\nBefore we proceed further we may immediately set out what this Court has held in Venkataraman's case (supra) since what was held therein has largely influenced the decision of the Division Bench. At page 1044 of the report in that decision this Court observed as follows:-\n\n\"'These provisions of the Act (namely Act 2 of 1947) indicate that it was the intention of the legislature to treat more severely than hitherto corruption on the part of a public servant and not to condone it in any manner whatsoever. If s. 6 had not found a place in the Act it is clear that cognizance of an offence under s. 161, 164 ors. 165 of the Indian Penal Code or under s. 5 (2) of the Act committed by a\n\npublic servant could be taken by a court even if he had ceased to be a public servant. The mere fact that he had ceased to be a public servant after the commission. of the offence would not absolve him from his crime.\n\nSection 6 certainly does prohibit the taking of cognizance of his offence, without a previous sanction, while he is still a public servant but dos\n\nthat prohibition continue after he h_as ceased to be a pubhc servant\"?\n\nAgain at page 1048/1049 this Court observed as follows :-\n\n\"In our opinion, in giving effect to the ordinary meaning of the words used in s. 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of s. 6 can apply. In the present appeals, admitedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of s. 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority\".\n\nA, similar view was affirmed by the Court in C. R. Bansi v. State of Maharashtra.(') This Court held therein as follows :-\n\n\"The policy underlying s. 6, and similar sections, is that E there should not be unnecessary harassment of public servants.\n\nBut if a person ceased to be a public servant the question of harassment does not arise.\n\nThe fact that an appeal is pending does not make him a public servant. The appellant ceased to be a public servant when the order of dismissal was passed.\n\nThere is no force in the contention F of the learned connsel and the trial cannot be held to be bad for Jack of sanction nnder s. 6 of the Act\".\n\nAccepting the position that sanction under section 6 of the Act is not necessary if th~ public servant ceased to be a public servant on the date the court takes cognizance of the offence, the High Court arrived at the conclusion that there would be discrimination between one class of public servants and another similarly situated when those in G office will be protected from harassment on account of the requirement of sanction for prosecution whereas the public servants fter they ceased to be in office will be prosecuted and harassed in absence of the requirement of the sanction. It is in that view of the matter the High Court bas helcl that the Special Court has no jurisdiction to try a public servant who has ceased to be a public servant on the date the Court was required to take cognizance of the offence, since, accord- H ing to the High Court, \"it cannot be said that in certain respects he\n\n\ni~ a public servant for. the offences under the Prevention of Conupt1on Act and for certam other respects, he is not a public servant\".\n\nIt is .in taking this view that P. B. Mukherjee, J. observed that \"this\n\nsolution seems all the more proper because it seems to steer clear of\n\nAricle 14 of the Constitution\".\n\nThe High Court, however, did not slnke down the Act or any provisions of the Act as unconstitutional.\n\nIt has only held the order of .allotment of the case to the Special Court as illegal as the case of a public servant who has ceased to be a pnblic servant cannot be allotted to the Special Court since, according to the High Court, to hold otherwise would be violative of Article 14 of the Constitution.\n\nIt is in the background of such a conclusion that Mr. Niren De, counsel for the respondent, submits that this appeal involves the determination of a question as to the constitutional validity, on the basis of Article 14 of the Constitution, of the provisions of the Bengal Acl, particularly the proviso to section 4 (1) of that Act.\n\nHe further sub- . mils that a person who ceased to be a public servant cannot be treated differently from a person who is a public servant in office for the purpose of the Bengal Act.\n\nHe, therefore, submits that in view of Article 144(A), as inserted by the 42nd Amendment, this appeal should be heard by a minimum number of seven Judges of this Court and we should therefore, refer the same to a larger Bench. This submission is supported by Mr. Dhebar who is appearing in an identical matter in Criminal Appeal No. 358 of 1976 and he has submitted an ppli\n\ncation to urge additional grounds on the basis of Article 14 of the Constitution.\n\nThere is. some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point.\n\nIn view of the decision in Venkataraman's case (supra) there is no warrant for including in one category public servants in office and\n\npublic servants who have ceased to be so.\n\nThese two classes of public servants are not similarly situated as has been clearly pointed out in Bansi's case (supra).\n\nThe plea of applicability of Article 14 on the basis of the judgment in Venkataraman's case (supra) is, therefore, wholly misconceived. It cannot be argued that the decision in V enkataraman's case (supra) is violative of Article 14 of the Constitution.\n\nThat decision only says that sction 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the court he ceases to be so.\n\nBecause a particular section is not applicable to a public servant after he has ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. This Court has clearly placed a public servant, who has ceased to be in office, in a separate category and that c)assification has held the fic!d all these years without demur.\n\nThere 1s, therefore, no substance Ill the contention that this appeal should be referred to a larger Bench.\n\nUnder section 4( 1) of the Bengal Act, the scheduled offences which include an offence under section 5 (2) of the Act as also conspiracy. to commit that offence shall be triable by Special Cou~ only.\n\nNo other court can, therefore, try these offences.\n\nThe prov1s1011s of the Bengal Act are clearly different from those of the West Bengal\n\nSpecial CQllrts Act which were the subject matter in The State of West A Bengal v. Anwar Ali Sarkar(').\n\nProviso to section 4(1) of the Bengal Act is in the following terms :\n\n\"Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial\".\n\nBy this proviso the Special Court, when trying a scheduled offence finds that some other offence has also been committed and the trial of the same in one trial is permissible under the Code of Criminal Procedure, may try such a charge. It is difficult to imagine how such\n\n• a proviso can at all attract Article 14 of the Constitution.\n\nOn merits it is submitted by Mr. De that the respondent is a complete outsider and is not a public servant at all.\n\nThe Bengal Act is not applicable to him.\n\nIt is submitted that the Bengal Act provides for reference to the Special Court only offences mentioned in the Schedule to that Act and all the offences mentioned in the Schedule, according to him, are those which may be committed by a public servant.\n\nHe draws our attention to the definition of publio servant under section 21 of the Indian Penal Code which definition is applicable under section 2 of the Act. He sub mitts that the public servant in view Of the definition means a public servant in office and not one who has ceased to be in office.\n\nIt is true that section 21 IPC enumerates various classes of public servants who are or who happen to be in office.\n\nThat is, however, not the true test in determining the present controversy.\n\nThe crucial date fo; the' purpose of attracting the provisions of the Act as well as those of t!te Bengal Act is whether the offence has been committed by a public servant within the definition of section 21.\n\nThe date for determining the offence is the date of the commission of the offence when the person arraigned must be a public servant.. Section 6 of the Act provides that no court shall. take cognizance of an offence specified in that section alleged to have been committed by a public servant except with the previous sanction.\n\nThe section itself makes a clear distinction between cognizance of an offence ancL alleged commission of an offence.\n\nSanction refers to the date when after submission of a report or a complaint the court takes cognizance of the off=e-.\n\nThat date is necessarily subsequent to the date of commission of the offence and sometimes far remote from that date. Retirement, resignation, dismissal or removal of a public servant would not wipe out the offence which he had committed while in service. Under section 6(1) o~ the Act, as in the, case of section 190(1) Cr.P.C .. the court takes cognizance of an offence and not an offender (see Raghubans Dubey v. State of Bihar( 2).\n\nThe crucial date, therefore, for taking cognizance in this case is the date when the case. was recei; ed by the Special Court on being allotted by the State Government under section 4(2) of the Bengal Act.\n\n(1) [1952] S.C.R. 284.\n\n\nMr. De submits that section 10 of the Bengal Act provides t11at the provisions of the Prevention of Corruption Act shall apply to trials under the Bengal Act.\n\nHe, therefore, submits that section 6 of the Act must apply and since this Court has held that that section does not apply and section 6 is also not applicable in the case of the respondent, being not a public servant, the Special Court has no jurisdiction to try the offence.\n\nWe are clearly of opinion that section I 0 of the Bengal Act will apply when the provisions of that section are dearly attracted.\n\nSection 6 is interpreted by this Court not to apply to a public servant who has ceased to be in office.\n\nThat would not affect the interpretation of section 10 of the Bengal Act.\n\nThere is no merit in the submission that because of section 10 the Special Court cannot be said to have jurisdiction to try the offence in this case.\n\nMr. De further submits that since the respondent is not a public servant he is outside the provisions of the Bengal Act, as well as the Prevention of Corruption Act.\n\nThis argument is entirely misconceived.\n\nEven under the Prevention of Corruption Act, an outsider can be prosecuted under section 5 (3) of the Act when a person habitually commits an offence punishable under section 165A of the Indian Penal Code. Section 165A provides that \"whoever, abets any offence punishable under section 161 or section 165, whether or not that offence is committed in consequence of the abetment, shall be punished .... \".\n\nThis section is clearly applicable to an outsider who may abet a public servant.\n\nItem 8 of the Schedule to the Bengal Act mentions any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items I, 2, 3 and 7.\n\nIt is, therefore, clear that under item 8 of the Schedule an outsider can be tried along with a public servant if the former abets or commits an offence of conspiracy to commit an offence under section 5 of the Prevention of Corruption Act which is mentioned in item 7 to the Schedule.\n\nThere is, therefore, no merit in the submission that the Special Court cannot try the offence under section 5 (2) of the Act read with section 120B IPC against the respondent.\n\nF All the submissions of counsel for the respondent fail.\n\nThe judgment and order of the Division Bench are set aside.\n\nThe appeal is allowed but there will be no order as to costs.\n\nIn Criminal Appeal No. 358 of 1976 the appellant was charged under section 5 (2) read with section 5 (I)( e) of the Prevention of Corruption Act.\n\nAt the time of commission of the offence he was G admittedly a public servant.\n\nHe, however, ceased to be a public servant on October 30, 1974, when the chargesheet against him was put , up before the Special Judge.\n\nThe offences are triable only by ; he f- Special Judge under the provisions of the Criminal Law Amendment Act 1952 (Act XI, VI of 1952). For the reasons given above in connection with Civil Appeal No. 1134 of 1973, the trial before the Special Judge cannot be questioned as illegal.\n\nThe appeal fails and H is dismissed.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 169, "entities": [{"text": "STATE OF WEST BENGAL ETC", "label": "PETITIONER", "start_char": 6, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL ETC", "offset_not_found": false}}, {"text": "MANMAL BHUTORIA & ORS. ETC", "label": "RESPONDENT", "start_char": 33, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "MANMAL BHUTORIA & ORS. ETC", "offset_not_found": false}}, {"text": "May 3, 1977", "label": "DATE", "start_char": 62, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "May 3, 1977\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 76, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "P.K. 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P. Raman", "label": "LAWYER", "start_char": 6757, "end_char": 6770, "source": "ner", "metadata": {"in_sentence": "H V. P. Raman, D. N. Mukherjee and G. S. Chatterjee, for the appellant in C.A. No."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 6772, "end_char": 6787, "source": "ner", "metadata": {"in_sentence": "H V. P. Raman, D. N. Mukherjee and G. S. Chatterjee, for the appellant in C.A. No.", "canonical_name": "D. N. Mukherjee"}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 6792, "end_char": 6808, "source": "ner", "metadata": {"in_sentence": "H V. P. Raman, D. N. Mukherjee and G. S. Chatterjee, for the appellant in C.A. No."}}, {"text": "A Niren De", "label": "OTHER_PERSON", "start_char": 6850, "end_char": 6860, "source": "ner", "metadata": {"in_sentence": "A Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No."}}, {"text": "N. C. Talukdar", "label": "OTHER_PERSON", "start_char": 6865, "end_char": 6879, "source": "ner", "metadata": {"in_sentence": "A Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No."}}, {"text": "B. M, Bagaria", "label": "LAWYER", "start_char": 6881, "end_char": 6894, "source": "ner", "metadata": {"in_sentence": "A Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No."}}, {"text": "Dilip Sinha", "label": "LAWYER", "start_char": 6896, "end_char": 6907, "source": "ner", "metadata": {"in_sentence": "A Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No."}}, {"text": "D. P. Mukherjee", "label": "LAWYER", "start_char": 6912, "end_char": 6927, "source": "ner", "metadata": {"in_sentence": "A Niren De and N. C. Talukdar, B. M, Bagaria, Dilip Sinha and D. P. Mukherjee, for respondent No.", "canonical_name": "D. N. Mukherjee"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 6967, "end_char": 6981, "source": "ner", "metadata": {"in_sentence": "R. N. Sachthey, for the respondent No.", "canonical_name": "R. N. Sachthey"}}, {"text": "Praveen Kumar", "label": "LAWYER", "start_char": 7028, "end_char": 7041, "source": "ner", "metadata": {"in_sentence": "Praveen Kumar, for the appellant in Cr!."}}, {"text": "B R. N. Sachthey", "label": "LAWYER", "start_char": 7087, "end_char": 7103, "source": "ner", "metadata": {"in_sentence": "B R. N. Sachthey, for respondent No."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 7149, "end_char": 7161, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and B. V. Desai for the appellant in Cr!."}}, {"text": "B. V. Desai", "label": "LAWYER", "start_char": 7166, "end_char": 7177, "source": "ner", "metadata": {"in_sentence": "R. H. Dhebar and B. V. Desai for the appellant in Cr!."}}, {"text": "V. P. Raman", "label": "LAWYER", "start_char": 7225, "end_char": 7236, "source": "ner", "metadata": {"in_sentence": "V. P. Raman and R. N. Sacl; they, for the respondents in Cr!."}}, {"text": "R. N. Sacl", "label": "LAWYER", "start_char": 7241, "end_char": 7251, "source": "ner", "metadata": {"in_sentence": "V. P. Raman and R. N. Sacl; they, for the respondents in Cr!.", "canonical_name": "R. N. Sachthey"}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 7350, "end_char": 7357, "source": "ner", "metadata": {"in_sentence": "C The Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nIn these appeals a common question of law arises for osideration.,"}}, {"text": "May 27, 1967", "label": "DATE", "start_char": 7956, "end_char": 7968, "source": "ner", "metadata": {"in_sentence": "The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman."}}, {"text": "Central Bureau of Investigation, Sub-Division,", "label": "ORG", "start_char": 8028, "end_char": 8074, "source": "ner", "metadata": {"in_sentence": "The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman."}}, {"text": "Calcuta", "label": "GPE", "start_char": 8075, "end_char": 8082, "source": "ner", "metadata": {"in_sentence": "The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman."}}, {"text": "R. C. Bhattacharjee", "label": "RESPONDENT", "start_char": 8092, "end_char": 8111, "source": "ner", "metadata": {"in_sentence": "The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman.", "canonical_name": "R. C. Bhattacharjee"}}, {"text": "Manmal Bhutoria", "label": "RESPONDENT", "start_char": 8155, "end_char": 8170, "source": "ner", "metadata": {"in_sentence": "The facts so far as material may be briefly stated :\n\nE On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcuta, against R. C. Bhattacharjee who was an ex-Major of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman.", "canonical_name": "MANMAL BHUTORIA & ORS. ETC"}}, {"text": "R. C. Bhattacharjee", "label": "RESPONDENT", "start_char": 8244, "end_char": 8263, "source": "ner", "metadata": {"in_sentence": "It was alleged that R. C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from a fictitious nominee of the said respondent for supply F of certain stores to the military authorities at a price exceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India.", "canonical_name": "R. C. Bhattacharjee"}}, {"text": "Government of India", "label": "ORG", "start_char": 8583, "end_char": 8602, "source": "ner", "metadata": {"in_sentence": "It was alleged that R. C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from a fictitious nominee of the said respondent for supply F of certain stores to the military authorities at a price exceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India."}}, {"text": "Bhattacharjee", "label": "OTHER_PERSON", "start_char": 8642, "end_char": 8655, "source": "ner", "metadata": {"in_sentence": "It was further alleged that the said Bhattacharjee along with the respondent had committed offence of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage which amounted to an offence G under section 5(2) of the Prevention of Corruption Act, 1947."}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 8894, "end_char": 8906, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 8914, "end_char": 8948, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February 14, 1966", "label": "DATE", "start_char": 9032, "end_char": 9049, "source": "ner", "metadata": {"in_sentence": "Accused Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any form of military service."}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 9125, "end_char": 9153, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "West Bengal Act", "label": "STATUTE", "start_char": 9332, "end_char": 9347, "source": "regex", "metadata": {}}, {"text": "Calcutta", "label": "GPE", "start_char": 9412, "end_char": 9420, "source": "ner", "metadata": {"in_sentence": "By a notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth\n\nAdditional Special Conrt in Calcutta under sub-section (2) of Section 4 of the Bengal Act."}}, {"text": "June 15, 1967", "label": "DATE", "start_char": 9435, "end_char": 9448, "source": "ner", "metadata": {"in_sentence": "By a notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth\n\nAdditional Special Conrt in Calcutta under sub-section (2) of Section 4 of the Bengal Act."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 9571, "end_char": 9580, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "23rd, 24th and 25th November, 1967", "label": "DATE", "start_char": 9651, "end_char": 9685, "source": "ner", "metadata": {"in_sentence": "When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that-\n\n(!)"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 9712, "end_char": 9734, "source": "ner", "metadata": {"in_sentence": "When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that-\n\n(!)"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9741, "end_char": 9752, "source": "regex", "metadata": {"linked_statute_text": "West Bengal Act", "statute": "West Bengal Act"}}, {"text": "November 7, 1967", "label": "DATE", "start_char": 9776, "end_char": 9792, "source": "ner", "metadata": {"in_sentence": "When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Article 226 of the Constitution on November 7, 1967, inter alia, contending that-\n\n(!)"}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 10841, "end_char": 10855, "source": "regex", "metadata": {"statute": null}}, {"text": "P. B. Mukherjee", "label": "JUDGE", "start_char": 10887, "end_char": 10902, "source": "ner", "metadata": {"in_sentence": "P. B. Mukherjee, J. held-\n\n\" ...... the only solution is to hold that these two acts, namely, the Special Courts Act and the Prevention of Corruption Act do not apply-to a pnblic servant who had ceased to be a public servant on the date the co)lrt takes cognizance.", "canonical_name": "D. N. 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Mitra, J. in his concurring judgment observed as follows :-\n\n\"On a careful consideration of the various clauses under s. 21 of the Penal Code, I have no doubt that a person who was previously a public servant, but who has ceased to be such, do not come within the ambit of that section."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 13088, "end_char": 13093, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act", "statute": "Prevention of Corruption Act"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 13101, "end_char": 13111, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13271, "end_char": 13275, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act", "statute": "Prevention of Corruption Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13284, "end_char": 13288, "source": "regex", "metadata": 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"metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 17740, "end_char": 17750, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 17827, "end_char": 17835, "source": "ner", "metadata": {"in_sentence": "It is in the background of such a conclusion that Mr. Niren De, counsel for the respondent, submits that this appeal involves the determination of a question as to the constitutional validity, on the basis of Article 14 of the Constitution, of the provisions of the Bengal Acl, particularly the proviso to section 4 (1) of that Act."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 17982, "end_char": 17992, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 18079, "end_char": 18088, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 144(A)", "label": "PROVISION", "start_char": 18331, "end_char": 18345, 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{"document_id": "1977_2_1007_1014_EN", "year": 1977, "text": "1007t\n\nMAGAN BIHARI LAL\n\nSTATE OF PUNJAB.\n\nFebruary 15, 1977\n\n[P. N. BHAGWATI ,'\\ND S. MURTAZA FAZAL ALI, JJ.]\n\nEvidence-Value of opinion evidence-Conviction on the basis solely of opinion evidence of q handwriting expert without corroboration is unsafe- Evidence Act (Act No. 1 of 1872), s. 45-Probative value of circumstantial evidence.\n\nA certain consignment of iron sheets despatched by Mis. Hindustan Steel Plant EXBNDM (Banda Bunda, near Bhilai) to Bikaner in wagon No. SEKG\n\nC 4875 was carried to Ludhiana via. Agra because at some point of time before it reached Aara, the labels attached to the wagons were either changed or removed and the entry in the vehicle summary guidance was also tampered with and chaneed to EXLAR to LDH indicating that the wagon was despatched from Lalitpur and its destination was Ludhiana. One Umedi Lal, a resident of Agra, approached a firm called Mis. Jindal Khemka & Co. represented by its partners Joginder Lal and Ram Nath with a forged railway receipt Ex. PW 10 /A written on a blank form stolen from the Railway Receipt Book maintained at Ban more Railway Station and offered to sell to them the iron sheets covered by the afore-\n\nD said consiillment sent by Mis. Hindustan Steel Co. Ltd. to Bikaner. Umedi Lal represented himself as the partner of M /s. Bansi Dhar & Sons., Laljtpur since the fori:ed RR (to self) bore the name of the consignor as Mis. Bansi Dhar & Sons, Lalitpur. After negotiations when one of the partners, Mr. Joginder Lal presented the RR and claimed the goods, a goods clerk on duty, by name Teja Singh Sodhi, entertained a doubt and returned the RR as defective. Thereafter, Umedi Lal accompanied by one Bhoja Ram, a washing soap dealer presented Ex. PW! OA himself and obtained the delivery of the goods from the very same\n\nI!: goods clerk, Teja Singh, who entertained the suspicion abont the RR earlier.\n\nJoginder Lal later on refused to purchase the iron sheets being a controlled item, in the absence of bill of purchase, but, however, took a receipt Ex. PW451 A from Umedi Lal to the effect that the latter has taken back the Iron sheets brought by him to their godown. The appellant, a guard working in the Nortnern Railway, was stated to have accompanied and been present on the day i.e., 6-8-1964 when Joginder Lal asked Umedi Lal to produce the original purchase bill. On . this basis coupled with the circumstances, namely, (a) his absence on leave from 1-8-1964 to 16-8-1964; (b) the tally of his handwriting given before the Police F during the investigation with that of Ex. PWlO /A as opined by the handwritten expert and (c) his identification by Ram Nath, one of the partners of M/s.\n\nJindal Khemka & Co. at the identification parade the appellant was put on trial for the offences under ss. 109/420, 411, 468, 471 but convicted for offences under ss. 468, 411, 1091420 I.P.C. and sentenced to 2 years R.I. with a fine of Rs. 1,0001or in default to undergo further R.I., for six months under s. 468 and to R.I. for one year each under s. 411 and 109/420 I.P.C.-the subsiantive sentences to run concurrently. The appeals before the Sessions Judge and the revision before the High Court were dismissed.\n\nAllowing the appeal by special leave,· the Court,\n\nHELD : ( 1) It is well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert's opinion without substantial corroboration.\n\nIn the instant case, it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting'. expert.\n\n(IOI IC-DJ H, Ram Chtindra v. State AIR 1957 SC 361; lshw,.ri Prasad v. Md. Isa AIR 1963 SC 1728; Shashi Kumar v. Subodh Kumar AIR 1964\n\nSC 529 and Fakhruddin v. State AIR 1967 SC 1326, reiterated.\n\n~.,_.\n\nSUPREAIE COURT REPORTS (1977] 2 s.c.ll..\n\nA Curnev v. Langlande (1622) 5 B & Ald. 330; Morllar of Alfred Foster's Will 34 Mich. 21, quoted with approva1. .\n\n(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that be had gone to Ludhiana in connection with the sale of iron sheets and that be was present in Ludhiana on 6th August 1964. The identification by Ram Nath after. some hesitation,· the improbability of identifying after 2! years aperson who is supposed to have merely accompanied another only once-and the inability of I oginder Lal to identifY him-all these are circumstances, \\vhich militate the prosecution theory of the appellant's presence. No conviction can therefore, be founded on such evidence. [10t2D-A, 1013-A-BJ\n\n(3) In the instant case the various facts, namely, inability of the Police to trace Umedi Lal or even Bhoja Ram who was frequently going to the Railway Station for taking delivery of goods on behalf of ~.f/s_ Jindal Khemka & Co. and\n\napprehend them, the passing on of the forged Ex. PWIO/A to Joginder Lal by Umedi Lal, a stranger without insisting on payment and even without settling the bargain, the delivery of the gqods the next day to Umedi Lal by Teja Singh who earlier suspected the genuineness of the RR when presented by Joginder Lal, the return of the iron sheets on the advice of some broker on the non-22roduction by Umedi Lal of a bill of purchase, taking a receipt Ex. P\\V45/ A when Umedi Lal removed back his goo<ls etc. prima facie indicate that Umedi Lal was a fictitious person and M/s. Jindal Khcmka & Co. were not absolutely innocent in so far as this transaction was concerned. This iron sheets appeared to have been taken delivery of bY. \"'Af/s- Jindal Kbamka & Co. for themselves on the strength of the fofged Railway Receipt No. PWlO/ A.\n\nBut some how or the other, due to police inaction, theY 3ppear to ha-Ve escaped and a small maii like the appellant seems to have been made a scape-goat.- The prosecution has totally failed to bring home the charge against the appellant.\n\n[1013C-H, ~014-\n\nA-BJ\n\n[Their Lordships expressed their dissatisfaction in the way the case was investigated and observed that \"it wasliiOeed a sad commentary on the efficiency of the Police\".]\n\n[10!3B-C]\n\nCRIMmAL APPELLATE JuR1so1cTmN : Criminal Appeal No. 22 of 1976. (\n\n(Appeal by Special Leave from the Judgment and Order dated the 12th September. 1975 of .the Punjab and Haryana High Court in Criminal Revision No. 314 of 1973).\n\nR. L. Kohli, for the appellant.\n\n0. P. Sharma, for respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-We made an order on 28th January, 1977 immediately after the conclusion of the hearing of the appi:al and by that order, we allowed the aypeal and set a\"side the order of conviction and sentence ecorded against the appellant. We now proceed to give our reasons for making that order.\n\nThe appellant wa, s tried and convicted by the Judicial Magistrate, 1st Class, Ludhiana for offences under sections 468, 411 nd 420 read with section 109 of the Indian Penal Code. He carried an appeal. to the Sessions Court but the appeal was unsuccessful.\n\nA further revision application followed but that too was rejected hy the High Court.\n\nHence the present appeal by special leave.\n\nThe facts giving rise to the prosecution are set out in great detail in the judgment of the High Court and hence it is not necessary to reiterate them.\n\nIt is enough to state that 354 bJack iron sheets worth Rs. 17, 701.91 were despatched by Hindstan Steel Plant from Murida near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No.·· SEKC 4075 .. The Railway Receipt in respect of this consignment was sent to M/s Shiv Rattan Mohatta through the State Bank of Ilikaner and M/s Shiv Rattan Mohatta took delivery of the Railway Receipt against payment to the Bank.\n\nThe consignment, however, did not reach Bikaner and on enquiries being made, it was found by the Railway authorities that tht< wagon containing the goods had reached Agra en route Bikaner but at some point of time before it reached Agra; the labels attached to the wagon were either changed or removed and the entry in the vehicle -summary guidance was. also tempered with and changed to Ex-LAR indicating that the wagon was despatched from Lalitpur and its destination was Ludhiana. The resuft was that wagon, instead of going to Bikaner, was carried to Ludhiana and it reached there on 1st August, 1964.\n\nThe prosecution case was that round about this time, one person styling himself.as Umedi Lal, resident of Agra, approached a firm ealled M/s Jindal Khemka & Co. which was carrying on business as dealers in iron sheets in Ludhiana.\n\nUmedi Lal produed a Railway Receipt Ex. PW 10/ A before Joginder Lal and Ram Nath, partners\n\nofthis. firm and offered to sell the goods covered by thi's Railway Receipt .to M/s Jindal khemka & Co.\n\nThis Railway Receipt was a . forged docu,\\flent written out on a blank form stolen from the Railway Receipt Book.maintained at a railway station called Banmore. Joginder Lal went to Ludhiana Railway Station with this Railway Receipt\n\non 2nd August, 1964 for taking delivery of the goods and presented the. Railway Receipt to Teja Singh Sodhi, who was the Goods Clerk on duty at the goods-sheet.\n\nTeja Singh entertained some doubt about the genuineness of the Railway Receipt and he told Joginder Lal that the Jlailway_ Receipt appeared to be defective.\n\nIn view of thi's, . Joginder,- ~Lal, according to the prosecution, returned the Railway .ReGeipt to Uriledi Lal on the following day when he came to enquire about the receipt of. the goods.\n\nUmedi Lal then went to the railway station accompanied. by one Shoja Ram,. who was .a. Washing Soap . dealer in Ludhiana, and presented the Railway Receipt to Teja Singh . Sodhi. Jor taking delivery of the goods.\n\nCuriously enough, though ·.only a .day. before, Teja Singh Sodhi had entertained doubt about the ; genuineness of tlie Railway Receipt, his doubts suddenly seemed to have vanished and he delivered the consignment of 354 black iron sheets which had come in wagon No. SEKG 40765 to Umedi Lal.\n\nIt'does not appear from the record as to where this consignment of 354 black iron sheets was kept by Umedi.Lal, but out of it, 200/250 if on. sheets were taken to the premises of Mis Jindal Khemka & Co. for sale on commission~ basis. Joginder Lal and Ram Nath were, however, according to the prosecution, advised by some broker that since iron sheets were controlled items, they should insist on production of a bill showing purchase of these iron sheets by Umedi Lal.\n\n.Ionder L<il and Ram N!!th ;:tccording asked Umedi L11l to produce\n\nthe bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.\n\nWhen this talk took 'place between Joginder Lal and Ram Nath on the one hand and Umedi Lal on the other, Umedi Lal ws, according to the prosecution, accompanied by the appellant who was at the material time employed as a Guard in the Northern Railway.\n\nSince Joginder Lal and Ram Nath refused to purchase the iron sheets, Umedi Lal removed the same in three carts and passed a receipt in, respect of the same in favour of M/s Jindal Khemka & Co.\n\nThe prosecution case was that at this time also Umedi Lal was accompanied by three or four persons who included the appellant.\n\nIt appears that since M/s Shiv Rattan Mohatta did not receive\n\ndelivery of the iron sheets consigned to them in Wagon No. SEKC 40765, they lodged a claim with the Railway Administration and this led to enquiries being made by the Railway Administration. Ultimately, the Railway Administration filed a first information report with the Special Police Establishment, Ambala Branch. and following upon the first information report, the police started investigation. During the course of investigation, the police entertained suspicion against the appellant and they obtained from the appellant specimen handwritings PW 27 /37 to PW 27 /57 for the purpose of comparing them with tre handwriting on the Railway Receipt Ex. PU J 0 I A which was a forged document. The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employt!e of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala.\n\nThe appellant and Ameeruddin accordingly went to Patiala and they were taken to the Central Jil and there, a test identification parade was held, at which Joginder Lal failed to identify the appellant hut Ram Nath, after some hesitation, managed to identify him.\n\nThe specimen handwritings of the appellant Exs. PW 27 / 37 to PW 27157 were sent, along with the Railway ReceiptEx. PW\n\n10. 'A, to B. Lal, Government Examiner of Questioned Documents and B. Lal gave his ooinion that the writing marked at Al on the Railway Receipt Ex. PW 10/ A and the specimen handwritings PW 27 /37 to 27 /57 were all by one and the same person.\n\nThe appellant was, on the basis of this material, put up for trial before the Judicial Magistrate, 1st Class, Ludhiana. The learned Magistrate convicted the appellant and his conviction was maintained in appeal as well as revision.\n\nThe que'stion is whether the material on record was sufficient to justify the conviction of the appellant. '\n\nWe have carefully gone through the evidence but we find it difficult to sustain the conviction of the appellant.\n\nThe only two pieces of evidence against the appellant are the evidence of B. Lal, the handwriting expert, who identified the handwriting on the foqzed Railway Receipt Ex. PW 10/ A as that of the same person who wrnte the specimen signatures Exs. PW 27 /37 to PW 27157 and the evidence showing the oresence of the appellant with Umedi Lal at Ludhiana when the talk took place between Umedi Lal on the one\n\nhand and Joginder Lal and Ram Nath on the other in .connection with the 'sale of the iron sheets.\n\nWe do not think that these two pieces of evidence are at all satisfactory and in any event, on conviction can be founded on them.\n\n In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Railway Administration wi..th his Headquarters at Agra . and he had nothing to do with the train by which Wagon No. SEKG 40765 was despatched from Munda to Hikaner, nor with the train which carried that wagon from Agra to Ludhiana.\n\nHe was not a Guard on either of these two trains. There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Hanmore Station. It is ind.eed difficult to see how the appellant, who was a small employee in the Railway Admini'stration,. could have possibly come into possession of the blank Railway Receipt from Hanmore Station which was not within his jurisdiction at any time. It is true that H. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the 8pecimen handwritings Ex. 27 /37 to 27 /57, that is the appellant, but we think it would be extremely hazardous to candemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.\n\nThere i's a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.\n\nThis rule has been universally acted upon and it has almost become a rule of law.\n\nIt was held by this Court in Ram Chandra v. State(') that it is unsafe to treat exJLert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.\n\nThis Court again pointed out in lshwari Prasad v. Md. lsa(2) that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view 1 was reiterated in Shashi Kumar v. Subodh Kumar (') where it was P,, c>nted out by this Court that expert's evidence a's to handWriting being opinn evidence can rarely, if ever, take the. place of substantive evidence and before acting on: such evidence, it would 'be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.\n\nThis Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State(~) and it uttered a note of caution , pointing out that it would be. risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and America! courts.\n\nVide Gurney v. Langlands(5 ) and Matter of Alfred\n\n(1) AIR 1957 SC 381.\n\n(2) AIR 1963 SC 1728\n\n(3) Al.fl 1964 SC 529 (4) AIR 1967 SC 1346\n\n(5) 1822, 5:0 & Qld 330\n\n-.-, F'\n\nFogter's Will(').\n\nThe Supreme Court of Michigan pointed out in the last mentioned case : \"Every one knows how. very unsafe it is to rely upon any one's opinion concerning the .niceties of penmanship\n\n-Opinions are necessarily received, and may be valuable, but at best this kind of evidence, is a necessary evil\".\n\nWe need not subscribe to the extreme view expressed by the Supreme Court of Michigan; but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form ihe. basis. for a conviction.\n\nWe must, therefore, try to see whether, in the present case, there is, apart from the evidence of the hand writing expert B. Lal, any other evidence connecting the appellant\n\nwith the offence.\n\nThe. only other evidence which was sought to be .relied upon on ·,...... _behalf of the prosecution was that showing the presence of the appellant with Umedi Lal at Ludhiana when there was talk between Umedi Lal on the one hand and Joginder Lal and Ram Nath on the other in regard to the sale of the iron sheet's.\n\nBut this evidence is wholly unsatifactory and does not inspire any confidence at all.\n\nIn the first place, it is difficult to see why the appellant should have gone with Urnedi Lal to Ludhiana for the purpose of selling the iron sheets.\n\nThe appellant was a mere railway Guard and even if it be assumed for the purpose of argument that his service were utilised for the pur- , pose of forging the railway receipt Ex. PW 10/ A, there is no reason\n\n\\vhy he' should have been persuaded to accompany Umedi Lal to Ludhiana. It is true that the appellant was on leave from 1st AugJ, Ist, 1964 to 16th August, 1964 but from that circumstance, it does. not follow that he had gone to Ludhiana in connection with the sale of the iron sheets.\n\nEven according to the prosecution, the .appellant was in. Ludhiana only on 6th August, 1964 and that would not necessitate the appellant taking such a long leave from 1st August, 1964 to 16th August, 1964. The leave taken by the appellant. from 1st August, 1964 to 16th August, 1964 would not necessarily. support the inference th?t the appellant was preent in Ludhiana on. 6th August, 1964.\n\nThe appellant might have taken this long leave for some other purpose. Moreover, it may be noted that .A Joginder Lal . could not identify the appellant at the test identification parade held at the Central Jail, Patiala. Ram Nath, of course, did identify the appellant but that was after some hesitation. The Special Railway Magistrate (PW 39) stated in cross-examination that Ram Nath took some time in identifying the appellant. The ai:ioellati.t in fact raised an objection before the Special.\n\nRailway Magistrate; prior to the test identification parade, that he had a doubt that he had been shown to the witnesses by the police.\n\nThe identi- . fic:ltion made by Ram Nath at the test identification parade can- . not, therefore, insoire any confidence in the mind of the Court.\n\nM0reover, it is difficult to imapne how Ram Nath who is supposed to have seen the appellant for the first time on 6th August, 1964 on a stray occasion could identify him at a test identification parade held after about two and a half years on 25th February, 1967: It ;, not as if the appellant had any direct talk with Ram Nath on thi~\n\n--(fj34 MiCh-:-zI- - -\n\nsolitary occasion.\n\nThe appellant was supposed to have merely accompanied Umedi, Lal along with one or two other persons_ and\n\nit is impossible to believe that Ram Nath could have remembered his fact after such a long period as two and a half years.\n\nWe are not at all satisfied that the appellant was with Umedi Lal when the latter is supposed to have negotiated. :iWith Joginder Lal and Ram Nath in connection with the sale of the irnn sheets. i.\n\nIt is indeed strange that the police could not trace Umedi _Lal or even Bhoja Ram.\n\nBhoja Ram, according to the . prosecuti.on evidence, was frequently going to the Railway Station for taking delivery of goods on behalf of Mis Jindal Khemka & Co. and yet he could not be caught hold of by the police.\n\nThat is indeed a sad commentary on the efficiency of the police.\n\nWe fail to understand why the police did not try to find out what happened to the iron sheets-where they went froni the shop of Mis Jindal Khemka & Co. If the prosecution story is true, these iron sheets were removed by Umedi Lal from the shop of Mis Jindal Khemka & Co. and they must have been removed by some cartmen.\n\nWe find it difficult to believe that the police could not have pursued the matter and traced the iron sheets by making enquiries from the cartmen.\n\nft is also intriguing why the police did not try to find out the where abouts of Bhoja Ram.\n\nSurely he could not .have disappeared into the thin air. It is not right for us to speculate but we cannot help feeling that Mis Jindal Khemka & Co. were not absolutely innocent in so far as this transaction is concerned.\n\nUmedi Lal was a stranger to both Joginder Lal and Ram Nath and yet, according to the prosecution case, Umedi Lal handed over the forged Railway Receipt PW.\n\nIOI A to Joginder Lal for the purpose of takiug delivery of the goad's without insisting on payment and even without settling the bargain.\n\nThe Railway Receipt Ex. PW lOIA was found to be defective by T_eja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, \"l. persuaded to accept the same Railway Receipt and delivered the f\n\nwiron sheets against it at the instance of Bhoja Ram, who was a person\n\n, frequently acting on behalf of Mis Jindal Khernka & Co.\n\nThen again, Joghider Lal and Ram Nath are supposed to have returned the _ iron sheets to Umedi Lal because some broker told them that they •hould insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do. This also appe_ars to be a rather disingenuous story made up by Joginder Lal and Ram Nath for the purpose_ of 'showing as if the iron sheets did not remain with them. ft is ii'rc!eed strange why they should have taken a receipt from Umedi Lal when the latter removed the goods from their shop.\n\nThe iron\n\nbeets belonged to Umedi Lal and if Umedi Lal took them back from Joglnder Lal and Ram Nath, there was no reason why the latter should have insisted on taking a receipt from him.\n\nPresumably the receipt was fabricated for the purpose of supporting their case that they did not keep the iron sheetS with them, because otherwise they would have no account for them. It does appear to us prima facie that Umedi Lal was a fictitious person and the iron sheets were taken delivery of by Mis Jindal Khemka & Co. for themselves on the\n\nstrength of the forged Railway Receipt PW 10/ A.\n\nBut some how or the other, due to police inaction, they appear to haye escaped and a small man like the appellant seems to have been made a scape-goa~.\n\n. . i ; We are of the view that the prosecution has totally failed to bring·.\"' mome the charge against the appellant and hence our. order dated 28th January, 1977 setting aside the order of conviction and sentence JI recorded agains_t the appellant and acquitting him of the offences . charged against him.\n\nS.R.\n\nAppeal allowed.\n\n206SCI/77-GIPF •.", "total_entities": 90, "entities": [{"text": "LAL\n\nSTATE OF PUNJAB", "label": "RESPONDENT", "start_char": 20, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "February 15, 1977", "label": "DATE", "start_char": 43, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "February 15, 1977\n\n[P. N. BHAGWATI ,'\\ND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 63, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "ND S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 81, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 45", "label": "PROVISION", "start_char": 289, "end_char": 294, "source": "regex", "metadata": {"statute": null}}, {"text": "Bikaner", "label": "GPE", "start_char": 455, "end_char": 462, "source": "ner", "metadata": {"in_sentence": "Hindustan Steel Plant EXBNDM (Banda Bunda, near Bhilai) to Bikaner in wagon No."}}, {"text": "Ludhiana", "label": "GPE", "start_char": 504, "end_char": 512, "source": "ner", "metadata": {"in_sentence": "SEKG\n\nC 4875 was carried to Ludhiana via."}}, {"text": "Lalitpur", "label": "GPE", "start_char": 785, "end_char": 793, "source": "ner", "metadata": {"in_sentence": "Agra because at some point of time before it reached Aara, the labels attached to the wagons were either changed or removed and the entry in the vehicle summary guidance was also tampered with and chaneed to EXLAR to LDH indicating that the wagon was despatched from Lalitpur and its destination was Ludhiana."}}, {"text": "Umedi Lal", "label": "OTHER_PERSON", "start_char": 832, "end_char": 841, "source": "ner", "metadata": {"in_sentence": "One Umedi Lal, a resident of Agra, approached a firm called Mis.", "canonical_name": "Umedi L11l"}}, {"text": "Agra", "label": "GPE", "start_char": 857, "end_char": 861, "source": "ner", "metadata": {"in_sentence": "One Umedi Lal, a resident of Agra, approached a firm called Mis."}}, {"text": "Mis. Jindal Khemka & Co.", "label": "ORG", "start_char": 888, "end_char": 912, "source": "ner", "metadata": {"in_sentence": "One Umedi Lal, a resident of Agra, approached a firm called Mis."}}, {"text": "Joginder Lal", "label": "OTHER_PERSON", "start_char": 941, "end_char": 953, "source": "ner", "metadata": {"in_sentence": "Jindal Khemka & Co. represented by its partners Joginder Lal and Ram Nath with a forged railway receipt Ex.", "canonical_name": "Joginder,- ~Lal"}}, {"text": "Ram Nath", "label": "OTHER_PERSON", "start_char": 958, "end_char": 966, "source": "ner", "metadata": {"in_sentence": "Jindal Khemka & Co. represented by its partners Joginder Lal and Ram Nath with a forged railway receipt Ex.", "canonical_name": "Ram N!!th"}}, {"text": "Mis. Hindustan Steel Co. Ltd.", "label": "ORG", "start_char": 1205, "end_char": 1234, "source": "ner", "metadata": {"in_sentence": "PW 10 /A written on a blank form stolen from the Railway Receipt Book maintained at Ban more Railway Station and offered to sell to them the iron sheets covered by the afore-\n\nD said consiillment sent by Mis."}}, {"text": "Laljtpur", "label": "GPE", "start_char": 1321, "end_char": 1329, "source": "ner", "metadata": {"in_sentence": "Laljtpur since the fori:ed RR (to self) bore the name of the consignor as Mis."}}, {"text": "Teja Singh Sodhi", "label": "OTHER_PERSON", "start_char": 1562, "end_char": 1578, "source": "ner", "metadata": {"in_sentence": "After negotiations when one of the partners, Mr. Joginder Lal presented the RR and claimed the goods, a goods clerk on duty, by name Teja Singh Sodhi, entertained a doubt and returned the RR as defective.", "canonical_name": "T_eja Singh Sodhi"}}, {"text": "Bhoja Ram", "label": "OTHER_PERSON", "start_char": 1675, "end_char": 1684, "source": "ner", "metadata": {"in_sentence": "Thereafter, Umedi Lal accompanied by one Bhoja Ram, a washing soap dealer presented Ex.", "canonical_name": "Bhoja Ram"}}, {"text": "Teja Singh", "label": "OTHER_PERSON", "start_char": 1813, "end_char": 1823, "source": "ner", "metadata": {"in_sentence": "goods clerk, Teja Singh, who entertained the suspicion abont the RR earlier.", "canonical_name": "T_eja Singh Sodhi"}}, {"text": "6-8-1964", "label": "DATE", "start_char": 2267, "end_char": 2275, "source": "ner", "metadata": {"in_sentence": "The appellant, a guard working in the Nortnern Railway, was stated to have accompanied and been present on the day i.e., 6-8-1964 when Joginder Lal asked Umedi Lal to produce the original purchase bill."}}, {"text": "1-8-1964", "label": "DATE", "start_char": 2435, "end_char": 2443, "source": "ner", "metadata": {"in_sentence": "this basis coupled with the circumstances, namely, (a) his absence on leave from 1-8-1964 to 16-8-1964; (b) the tally of his handwriting given before the Police F during the investigation with that of Ex."}}, {"text": "16-8-1964", "label": "DATE", "start_char": 2447, "end_char": 2456, "source": "ner", "metadata": {"in_sentence": "this basis coupled with the circumstances, namely, (a) his absence on leave from 1-8-1964 to 16-8-1964; (b) the tally of his handwriting given before the Police F during the investigation with that of Ex."}}, {"text": "Jindal Khemka & Co.", "label": "ORG", "start_char": 2672, "end_char": 2691, "source": "ner", "metadata": {"in_sentence": "PWlO /A as opined by the handwritten expert and (c) his identification by Ram Nath, one of the partners of M/s.\n\nJindal Khemka & Co. at the identification parade the appellant was put on trial for the offences under ss."}}, {"text": "ss. 109", "label": "PROVISION", "start_char": 2775, "end_char": 2782, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 468, 411, 1091420", "label": "PROVISION", "start_char": 2835, "end_char": 2856, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2857, "end_char": 2862, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 468", "label": "PROVISION", "start_char": 2979, "end_char": 2985, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 411 and 109", "label": "PROVISION", "start_char": 3022, "end_char": 3036, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3041, "end_char": 3046, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "AIR 1957 SC 361", "label": "CASE_CITATION", "start_char": 3696, "end_char": 3711, "source": "regex", "metadata": {}}, {"text": "AIR 1963 SC 1728", "label": "CASE_CITATION", "start_char": 3740, "end_char": 3756, "source": "regex", "metadata": {}}, {"text": "AIR 1964\n\nSC 529", "label": "CASE_CITATION", "start_char": 3787, "end_char": 3803, "source": "regex", "metadata": {}}, {"text": "AIR 1967 SC 1326", "label": "CASE_CITATION", "start_char": 3828, "end_char": 3844, "source": "regex", "metadata": {}}, {"text": "SUPREAIE COURT REPORTS (1977] 2 s.c.ll", "label": "COURT", "start_char": 3866, "end_char": 3904, "source": "ner", "metadata": {"in_sentence": "SUPREAIE COURT REPORTS (1977] 2 s.c.ll..\n\nA Curnev v. Langlande (1622) 5 B & Ald."}}, {"text": "Morllar of Alfred Foster's Will 34 Mich. 21", "label": "RESPONDENT", "start_char": 3953, "end_char": 3996, "source": "ner", "metadata": {"in_sentence": "330; Morllar of Alfred Foster's Will 34 Mich. 21, quoted with approva1. ."}}, {"text": "1st August 1964", "label": "DATE", "start_char": 4102, "end_char": 4117, "source": "ner", "metadata": {"in_sentence": "(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that be had gone to Ludhiana in connection with the sale of iron sheets and that be was present in Ludhiana on 6th August 1964."}}, {"text": "16th August 1964", "label": "DATE", "start_char": 4121, "end_char": 4137, "source": "ner", "metadata": {"in_sentence": "(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that be had gone to Ludhiana in connection with the sale of iron sheets and that be was present in Ludhiana on 6th August 1964."}}, {"text": "6th August 1964", "label": "DATE", "start_char": 4281, "end_char": 4296, "source": "ner", "metadata": {"in_sentence": "(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that be had gone to Ludhiana in connection with the sale of iron sheets and that be was present in Ludhiana on 6th August 1964."}}, {"text": "I oginder Lal", "label": "OTHER_PERSON", "start_char": 4492, "end_char": 4505, "source": "ner", "metadata": {"in_sentence": "years aperson who is supposed to have merely accompanied another only once-and the inability of I oginder Lal to identifY him-all these are circumstances, \\vhich militate the prosecution theory of the appellant's presence."}}, {"text": "Jindal Khcmka & Co.", "label": "ORG", "start_char": 5504, "end_char": 5523, "source": "ner", "metadata": {"in_sentence": "prima facie indicate that Umedi Lal was a fictitious person and M/s. Jindal Khcmka & Co. were not absolutely innocent in so far as this transaction was concerned."}}, {"text": "Jindal Kbamka & Co.", "label": "ORG", "start_char": 5667, "end_char": 5686, "source": "ner", "metadata": {"in_sentence": "This iron sheets appeared to have been taken delivery of bY. \"'Af/s- Jindal Kbamka & Co. for themselves on the strength of the fofged Railway Receipt No."}}, {"text": "CRIMmAL APPELLATE", "label": "PETITIONER", "start_char": 6207, "end_char": 6224, "source": "ner", "metadata": {"in_sentence": "[10!3B-C]\n\nCRIMmAL APPELLATE JuR1so1cTmN : Criminal Appeal No."}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 6436, "end_char": 6447, "source": "ner", "metadata": {"in_sentence": "R. L. Kohli, for the appellant."}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 6472, "end_char": 6481, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 6544, "end_char": 6552, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.-We made an order on 28th January, 1977 immediately after the conclusion of the hearing of the appi:al and by that order, we allowed the aypeal and set a\"side the order of conviction and sentence ecorded against the appellant."}}, {"text": "sections 468, 411", "label": "PROVISION", "start_char": 6949, "end_char": 6966, "source": "regex", "metadata": {"statute": null}}, {"text": "section 109", "label": "PROVISION", "start_char": 6984, "end_char": 6995, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 7003, "end_char": 7020, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindstan Steel Plant", "label": "ORG", "start_char": 7472, "end_char": 7492, "source": "ner", "metadata": {"in_sentence": "17, 701.91 were despatched by Hindstan Steel Plant from Murida near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No.··"}}, {"text": "Murida", "label": "GPE", "start_char": 7498, "end_char": 7504, "source": "ner", "metadata": {"in_sentence": "17, 701.91 were despatched by Hindstan Steel Plant from Murida near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No.··"}}, {"text": "Bhilai", "label": "GPE", "start_char": 7510, "end_char": 7516, "source": "ner", "metadata": {"in_sentence": "17, 701.91 were despatched by Hindstan Steel Plant from Murida near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No.··"}}, {"text": "Shiv Rattan Mohatta", "label": "OTHER_PERSON", "start_char": 7525, "end_char": 7544, "source": "ner", "metadata": {"in_sentence": "17, 701.91 were despatched by Hindstan Steel Plant from Murida near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No.··"}}, {"text": "State Bank of Ilikaner", "label": "ORG", "start_char": 7683, "end_char": 7705, "source": "ner", "metadata": {"in_sentence": "SEKC 4075 .. The Railway Receipt in respect of this consignment was sent to M/s Shiv Rattan Mohatta through the State Bank of Ilikaner and M/s Shiv Rattan Mohatta took delivery of the Railway Receipt against payment to the Bank."}}, {"text": "1st August, 1964", "label": "DATE", "start_char": 8389, "end_char": 8405, "source": "ner", "metadata": {"in_sentence": "The resuft was that wagon, instead of going to Bikaner, was carried to Ludhiana and it reached there on 1st August, 1964."}}, {"text": "Jindal khemka & Co.", "label": "ORG", "start_char": 8817, "end_char": 8836, "source": "ner", "metadata": {"in_sentence": "firm and offered to sell the goods covered by thi's Railway Receipt .to M/s Jindal khemka & Co.\n\nThis Railway Receipt was a ."}}, {"text": "Banmore", "label": "GPE", "start_char": 8990, "end_char": 8997, "source": "ner", "metadata": {"in_sentence": "forged docu,\\flent written out on a blank form stolen from the Railway Receipt Book.maintained at a railway station called Banmore."}}, {"text": "2nd August, 1964", "label": "DATE", "start_char": 9075, "end_char": 9091, "source": "ner", "metadata": {"in_sentence": "Joginder Lal went to Ludhiana Railway Station with this Railway Receipt\n\non 2nd August, 1964 for taking delivery of the goods and presented the."}}, {"text": "Joginder,- ~Lal", "label": "OTHER_PERSON", "start_char": 9412, "end_char": 9427, "source": "ner", "metadata": {"in_sentence": "Joginder,- ~Lal, according to the prosecution, returned the Railway .ReGeipt to Uriledi Lal on the following day when he came to enquire about the receipt of.", "canonical_name": "Joginder,- ~Lal"}}, {"text": "Uriledi Lal", "label": "OTHER_PERSON", "start_char": 9492, "end_char": 9503, "source": "ner", "metadata": {"in_sentence": "Joginder,- ~Lal, according to the prosecution, returned the Railway .ReGeipt to Uriledi Lal on the following day when he came to enquire about the receipt of."}}, {"text": "Shoja Ram", "label": "OTHER_PERSON", "start_char": 9646, "end_char": 9655, "source": "ner", "metadata": {"in_sentence": "by one Shoja Ram,.", "canonical_name": "Bhoja Ram"}}, {"text": "Umedi.Lal", "label": "OTHER_PERSON", "start_char": 10190, "end_char": 10199, "source": "ner", "metadata": {"in_sentence": "It'does not appear from the record as to where this consignment of 354 black iron sheets was kept by Umedi.", "canonical_name": "Umedi L11l"}}, {"text": "Mis Jindal Khemka & Co.", "label": "ORG", "start_char": 10268, "end_char": 10291, "source": "ner", "metadata": {"in_sentence": "sheets were taken to the premises of Mis Jindal Khemka & Co. for sale on commission~ basis."}}, {"text": ".Ionder L", "label": "OTHER_PERSON", "start_char": 10559, "end_char": 10568, "source": "ner", "metadata": {"in_sentence": ".Ionder L<il and Ram N!!th ;:tccording asked Umedi L11l to produce\n\nthe bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur."}}, {"text": "Ram N!!th", "label": "OTHER_PERSON", "start_char": 10576, "end_char": 10585, "source": "ner", "metadata": {"in_sentence": ".Ionder L<il and Ram N!!th ;:tccording asked Umedi L11l to produce\n\nthe bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.", "canonical_name": "Ram N!!th"}}, {"text": "Umedi L11l", "label": "OTHER_PERSON", "start_char": 10604, "end_char": 10614, "source": "ner", "metadata": {"in_sentence": ".Ionder L<il and Ram N!!th ;:tccording asked Umedi L11l to produce\n\nthe bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.", "canonical_name": "Umedi L11l"}}, {"text": "Bansidhar & Sons of Lalitpur", "label": "ORG", "start_char": 10863, "end_char": 10891, "source": "ner", "metadata": {"in_sentence": ".Ionder L<il and Ram N!!th ;:tccording asked Umedi L11l to produce\n\nthe bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur."}}, {"text": "Special Police Establishment, Ambala Branch", "label": "ORG", "start_char": 11804, "end_char": 11847, "source": "ner", "metadata": {"in_sentence": "Ultimately, the Railway Administration filed a first information report with the Special Police Establishment, Ambala Branch."}}, {"text": "Ameeruddin", "label": "OTHER_PERSON", "start_char": 12309, "end_char": 12319, "source": "ner", "metadata": {"in_sentence": "The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employt!e of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala."}}, {"text": "Special Railway Magistrate, Patiala", "label": "COURT", "start_char": 12450, "end_char": 12485, "source": "ner", "metadata": {"in_sentence": "The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employt!e of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala."}}, {"text": "Patiala", "label": "GPE", "start_char": 12537, "end_char": 12544, "source": "ner", "metadata": {"in_sentence": "The appellant and Ameeruddin accordingly went to Patiala and they were taken to the Central Jil and there, a test identification parade was held, at which Joginder Lal failed to identify the appellant hut Ram Nath, after some hesitation, managed to identify him."}}, {"text": "B. Lal", "label": "WITNESS", "start_char": 12883, "end_char": 12889, "source": "ner", "metadata": {"in_sentence": "A, to B. Lal, Government Examiner of Questioned Documents and B. Lal gave his ooinion that the writing marked at Al on the Railway Receipt Ex."}}, {"text": "B. Lal", "label": "OTHER_PERSON", "start_char": 12939, "end_char": 12945, "source": "ner", "metadata": {"in_sentence": "A, to B. Lal, Government Examiner of Questioned Documents and B. Lal gave his ooinion that the writing marked at Al on the Railway Receipt Ex."}}, {"text": "Judicial Magistrate, 1st Class, Ludhiana", "label": "COURT", "start_char": 13195, "end_char": 13235, "source": "ner", "metadata": {"in_sentence": "The appellant was, on the basis of this material, put up for trial before the Judicial Magistrate, 1st Class, Ludhiana."}}, {"text": "Munda", "label": "GPE", "start_char": 14470, "end_char": 14475, "source": "ner", "metadata": {"in_sentence": "SEKG 40765 was despatched from Munda to Hikaner, nor with the train which carried that wagon from Agra to Ludhiana."}}, {"text": "Hikaner", "label": "GPE", "start_char": 14479, "end_char": 14486, "source": "ner", "metadata": {"in_sentence": "SEKG 40765 was despatched from Munda to Hikaner, nor with the train which carried that wagon from Agra to Ludhiana."}}, {"text": "H. Lal", "label": "WITNESS", "start_char": 14988, "end_char": 14994, "source": "ner", "metadata": {"in_sentence": "It is true that H. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex."}}, {"text": "AIR 1957 SC 381", "label": "CASE_CITATION", "start_char": 17128, "end_char": 17143, "source": "regex", "metadata": {}}, {"text": "AIR 1963 SC 1728", "label": "CASE_CITATION", "start_char": 17150, "end_char": 17166, "source": "regex", "metadata": {}}, {"text": "AIR 1967 SC 1346", "label": "CASE_CITATION", "start_char": 17194, "end_char": 17210, "source": "regex", "metadata": {}}, {"text": "Supreme Court of Michigan", "label": "COURT", "start_char": 17269, "end_char": 17294, "source": "ner", "metadata": {"in_sentence": "The Supreme Court of Michigan pointed out in the last mentioned case : \"Every one knows how."}}, {"text": "Urnedi Lal", "label": "OTHER_PERSON", "start_char": 18500, "end_char": 18510, "source": "ner", "metadata": {"in_sentence": "In the first place, it is difficult to see why the appellant should have gone with Urnedi Lal to Ludhiana for the purpose of selling the iron sheets.", "canonical_name": "Umedi L11l"}}, {"text": "1st AugJ, Ist, 1964", "label": "DATE", "start_char": 18897, "end_char": 18916, "source": "ner", "metadata": {"in_sentence": "It is true that the appellant was on leave from 1st AugJ, Ist, 1964 to 16th August, 1964 but from that circumstance, it does."}}, {"text": "16th August, 1964", "label": "DATE", "start_char": 18920, "end_char": 18937, "source": "ner", "metadata": {"in_sentence": "It is true that the appellant was on leave from 1st AugJ, Ist, 1964 to 16th August, 1964 but from that circumstance, it does."}}, {"text": "6th August, 1964", "label": "DATE", "start_char": 19438, "end_char": 19454, "source": "ner", "metadata": {"in_sentence": "6th August, 1964."}}, {"text": "Umedi", "label": "OTHER_PERSON", "start_char": 20676, "end_char": 20681, "source": "ner", "metadata": {"in_sentence": "The appellant was supposed to have merely accompanied Umedi, Lal along with one or two other persons_ and\n\nit is impossible to believe that Ram Nath could have remembered his fact after such a long period as two and a half years.", "canonical_name": "Umedi L11l"}}, {"text": "Umedi _Lal", "label": "OTHER_PERSON", "start_char": 21105, "end_char": 21115, "source": "ner", "metadata": {"in_sentence": "i.\n\nIt is indeed strange that the police could not trace Umedi _Lal or even Bhoja Ram.", "canonical_name": "Umedi L11l"}}, {"text": "T_eja Singh Sodhi", "label": "OTHER_PERSON", "start_char": 22563, "end_char": 22580, "source": "ner", "metadata": {"in_sentence": "PW lOIA was found to be defective by T_eja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, \"l. persuaded to accept the same Railway Receipt and delivered the f\n\nwiron sheets against it at the instance of Bhoja Ram, who was a person\n\n, frequently acting on behalf of Mis Jindal Khernka & Co.\n\nThen again, Joghider Lal and Ram Nath are supposed to have returned the  iron sheets to Umedi Lal because some broker told them that they •hould insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do.", "canonical_name": "T_eja Singh Sodhi"}}, {"text": "Mis Jindal Khernka & Co.", "label": "ORG", "start_char": 22870, "end_char": 22894, "source": "ner", "metadata": {"in_sentence": "PW lOIA was found to be defective by T_eja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, \"l. persuaded to accept the same Railway Receipt and delivered the f\n\nwiron sheets against it at the instance of Bhoja Ram, who was a person\n\n, frequently acting on behalf of Mis Jindal Khernka & Co.\n\nThen again, Joghider Lal and Ram Nath are supposed to have returned the  iron sheets to Umedi Lal because some broker told them that they •hould insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do."}}, {"text": "Joghider Lal", "label": "OTHER_PERSON", "start_char": 22908, "end_char": 22920, "source": "ner", "metadata": {"in_sentence": "PW lOIA was found to be defective by T_eja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, \"l. persuaded to accept the same Railway Receipt and delivered the f\n\nwiron sheets against it at the instance of Bhoja Ram, who was a person\n\n, frequently acting on behalf of Mis Jindal Khernka & Co.\n\nThen again, Joghider Lal and Ram Nath are supposed to have returned the  iron sheets to Umedi Lal because some broker told them that they •hould insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do.", "canonical_name": "Joginder,- ~Lal"}}, {"text": "Joglnder Lal", "label": "OTHER_PERSON", "start_char": 23506, "end_char": 23518, "source": "ner", "metadata": {"in_sentence": "The iron\n\nbeets belonged to Umedi Lal and if Umedi Lal took them back from Joglnder Lal and Ram Nath, there was no reason why the latter should have insisted on taking a receipt from him.", "canonical_name": "Joginder,- ~Lal"}}, {"text": "28th January, 1977", "label": "DATE", "start_char": 24317, "end_char": 24335, "source": "ner", "metadata": {"in_sentence": "order dated 28th January, 1977 setting aside the order of conviction and sentence JI recorded agains_t the appellant and acquitting him of the offences ."}}]}
{"document_id": "1977_2_548_554_EN", "year": 1977, "text": "-STATE OF UTTAR PRADESH AND ORS.\n\nMODI INDUSTRIES LIMITED\n\nJanuary 4, 1977\n\n(V. R. KRISHNA IYER AND P. N. SHINGHAL, JJ.]\n\nU. P. Sales Tax Act, 1948-S. 31-Scope of.\n\nThe respondent filed its sales tax returns for the assessment years 1948-49 and 1949.50 on the basis of its turnover of two previous years. In respect of certain commodities, the rate of sales tax was enhanced with effect from certain C dates falling . within the assessment years.\n\nThe High Court on reference took the view that the dealer who had chosen to be assessed on the basis of its tuinover of the previous year of assessment: \\Vas liable to be assessed at the rule prevailing On the first day of the relvant assessment year and tJ, J.at any change in. the rate during the assessment year could not be applied to that assessment.\n\nThe assessee, who had paid tax at the enhanced rate, applied for refund of the excess tax together With interest thereon under s. 11 (6) of the U.P. Sales Tax Act, 1948. The Additional Judge (Revisions), however, rejected the application holding that refund was not permissible in view of s. 31 introduced by the Amending Act (U.P. Act 3 of 1963). That section provided that where a dealer opted to be assessed to tax: on the basis of his turiiover of the previous year, he shall be assessed to tax at such .ta.tes as are prevalent during the year for which the assessment is being made, and if the rates of tax are altered during such assess\n\nment year, the dealer, in respect of the turnover of such goods. shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the number of days involved as they were in force during the assessment year. According to sub-section (2) of that sec-· tion the assessments made at the enhanced rates in accordance with the notifica tion dated April 9, 1948 were to be deemed to be gocxI and valid as if they had been duly made and as if the amendment made by the inserfion of s. 31 had been in force on aU material dates. It was expressly provided by the suO-section that that was to be so notwithstanding any judgment, decn:e-or order of any court.\n\nThe High Court quashed the order of assessment on the £round that the\n\nRevisin~ Authority was not free to take a different view from the one expressed by it (High Court) on anv ground whatsoever, including the grollnd of any subsequent amendment of the law. .\n\nAllowing the Appeal to this Court,\n\nHEt.D : There is nothing wrong with the vieW' taken bv the Rvising Authority.\n\nWbe\"n S. 31 of the Act is va1id, and is retroactive .and the Legi<; fatnre has shown the intention of restorin~ the assessments and orde\"n; made before the a\"lend ment a<il l!Clod and valid in law a<il if thev had bPPTI dulv madethat wac; enouh to set the controversy at rest.\n\nThe amendment made by S. :11 wac; rPtrn::ic:tive and anpJied to assessments vendinP or c1oc:M a.c; if the Amending Act had been in force at aU ma.terial times. [554CD; S52C] ,\n\nComml,.,:•iion~'r of Sales Tax, U.P. v. Bijli Cotton Mills, Hathras, f19641 7 S.C.R. 383 referred to.\n\n(a) Section 31 was sou2ht to be annlied to the facts of the case wh\"'n the Ailditfr, nal Tnd.2e (Revisinnci) wac; in <:E\"i•d'n of the c:tcie fnr , the .nnmn•P .r.f .nao::ciin~ the necessary orders. to dispose it of finally in conformity with, the judgment of\n\nu. P. v. MODI lNDl'.STRIES (Shinghal, !.) 549\n\nthe High Court. If he had passed an order under s. 11 (6) of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of s. 31 (2).\n\n[553B-C & F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1694 of 1971.\n\n(From the Judgment and Decree dt. 11-2-70 of the Allahabad High Court in Civil Misc. Writ No. 973 of 69).\n\nS. C. Manchanda and 0. P. R.ana for the Appellants.\n\nA. K. Sen, J. P. Goyal and Shreepal Singh, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J. This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February U, 1970. The High Court has granted a certificate of fitness under clause ( c) of article 13 3 ( 1) of the Constitution.\n\nRespondent Mod~ Industries Limited. hereinafter referred to as the dealer, was known earlier as the Modi Sugar Mills Ltd. It manufactured various. articles likei sugar, oil, vanaspati and soap. It exercised the option under section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) of the U.P. Sales Tax Act, 1948, hereinafter referred to as the Act, to submit its returns of sales-tax on the basis of its turnover of the previous years and filed the returns accordingly.\n\nThe assessment years for which the returns were filed were 1948-49 and 1949-50, and the corresponding previous years were November 1, 1946 to October 31, 1947, and November l, 1947 to October 31, 1948 respectively. The rate of sales tax for certain commodities was enhanced during the assessment year 1948- 49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948. The dealer contended that sales tax on its entire turnover of the two previous years should be assessed at the old rate of 3 pies per rupee and not at the enhanced rate of 6 pies per mpee because the enhancement was made after both the previous years had expired.\n\nThe Sales Tax Officers rejected that contention and assessed the sales tax at the enhanced rates.\n\nThe appellate authority however upheld the dealer's contention and the matter went uv in revision to the Judge (Revisions). He upheld the order of the Sales Tax Officer.\n\nThe dealer applied for a reference under section 11 ( 1) and the following two questions of law were referred to the High Court,-\n\n\"( 1) Whether the enhanced rate under notifications dated 8th June, 1948 and 30th June. 1948 issued under section 3-A of the U.P. Sales Tax Act. 1948 are appiicable to the sales of goods mentioned in paragraph 2 above which took place before 8th June 1948 and 30th June, 1948.\n\n(2) Whether sub-section (ii) of section 3-A of the U.P. Sales Tax Act, 1948, empowers Provincial Government to fix the rate of sales tax in respect of an assessment year or in respect of certain specified sales only ?\"\n\nBy its judgment dated July 24, 1961, the High Court answered question No. 1 in favour of the dealer, but declined to answer the other question.\n\nThe High Court took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year was liable to assessment, on the entire turnover of the previous year, at the rate prevailing on the finst day of the relevant assessment year and that any change in the rate of the sales tax during the course ol the assessment year could not be applied to that assessment.\n\nThe dealer filed an app:ication under section 11 (8) of the Act for a direction for the payment of interest on the amount which had become refundable as a result of the judgment of the High Court. The High Court held in its order dated February 22, 1966 that the dealer was entitled to interest at the rate of two per cent on the refundable amount.\n\nThe dealer accordingly made an application to the Revising Authority on October 11, 1968 to pass an order under sub-section\n\n(6) of section 11 for a refund of Rs. 3,48,420/13 with interest at two percent per annum.\n\nThe Additional Judge (Revisions) Sales Tax however dismissed the application byi his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31' in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act.\n\nThe dealer felt aggrieved and filed a writ petition under article 226 of the Constitution.\n\nIt is that petition which has been allowed by the impugned judgment of the High Court dated February 11, 1970 by which the order of the Additional Judge (Revisions) Sales Tax Meerut, dated December 28, 1968, has been quashed and a direction hais been given to him to pass an appropriate order under section 11 (6) of the Act in accordance with the law and in the light of the observaHons made by the High Court. This is why the State of Uttar Pradesh and others have come up to this Court in appeal.\n\nWe have made a mention of the facts bearing on the controversy, and we may as well refer to th~ relevant provisions of the law.\n\nThe Act came into force on April 1, 1948. It provided for pay- F ment of the sales tax on several commodities at a uniform rate of 3 pies in the rupee.\n\nSection 3-A was inserted by Act XXV of 1948 conferring certain powers on the Proviosial Government.\n\nThe provincial Government issued a notification under that section declaring. inter alia, that with effect from June 9, 1948. the rate of sales tax in [respect of the turnover of the goods specified in the notification shall be as stated in the schedule to the notification.\n\nThe rate of tax ·- G was thus enhanced to 6 pies per rupee. The enhancement of the tax was challenged on the grouil_d that it was not permissible in thi case of an assessee who had taken the option to submit his return on the basis of the turnover of the sales in the previous year as he was liable to pay the tax according to tbe rates prevailing during the assessment year. That case came up to this Court at the instance of the present respondent, which was then known as the Modi Sugar H Mills Limited, and it was helrl in Commissioner of Sales Tax. Uttar Pradesh v. The Modi Sugar Mills Ltd. (') that the assessee who had\n\n(I) (1961] 2 S.C.R. 189.\n\nelected to submit his return on the turnover of the previous year wa& A liable to be assessed to sales tax at the rate in force on the first day of the year of assessment because the liability arose on that date, and any subsequent enhancement of the rate by the notificali.on under section 3-A did not alter the liability.\n\nThe Legislature however passed the Amending Act and inserted the following as section 31,--\n\n\"31 ( 1) Where any dealer has, in accordance with the provisions of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, opted to be assessed to tax on the ballis of his turnover of the previous year, he shall be assessed to tax at such rates as are prevalent during the year for which the assessment is being made, and if the rates of tax on any goods or class of goods are altered during such assessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the same number of days as they are in force during the assessment year.\n\n(2) Notwithstanding any judgment, decree or order of any court, all assessments or orders made, actions or proceedings taken, directions issued, jurisdictions exercised or tax levied or collected by any officer or authority purporting to act under the provisions of sub-section ( 1 ) of Section 7, as it stood prior to its amendment by Section 7 of U.P. Act XIX of 1956, shall be deemed to be good and valid in law as if such assessments, orders, actions, proceedings, directions, jurisdictions and tax have been duly made, taken, issued, exercised, levied or collected, as the case may be,\n\nunder or in accordance with the said provisions of this Act as amended by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 and as if the amendment so made had been in force on all material dates.\n\nExplanation-For the purposes of this section the expre5sion \"previous year\" shall have the meaning assigned to it in sub-clause\n\n(ii) of clause (j) of Section 2 of this Act, as it stood prior to its amendment by Section 2 of the U.P. Act XIX of 1956.\"\n\nThe validity of the aforesaid section 31 of the Act came up for consideration in this Court in Commissioner of Sales Tax,\n\nU.P. v Bi; li Cot.ton Mills Hathras(') and Wall upheld.\n\nIt was held that as the Legislature had amended the Act and declared that notwithstanding the option exercised by the assessee the tax would have to be computed in the light of the rates prevailing in 1948-49 as if they were projected upon the turnover of the previous; year, the Legislature had expressly stated that that rule would prevail as if it were in force during the assessment year and all assessments would be made in the light of the amended provision.\n\nIt was observed that in taking that view this Court was seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability\n\n(1) (1964]7 S.C.R. 363.\n\nA arose, for section 31 incorporated by the Amending Act was to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court. It was held fw- ther that this would be the position even if the laws were amended with retr.oactive operation during the pendency of a reference to the High Court. It was accordingly held that \"if the law which the Tribunal seeks to apply to the dispute is amended, so as to make the B law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended.\" The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills' case and have in fact not been challenged by counsel for the dealer..\n\nIt may be mentioned that in its judgment in Bijli Cotton Mills' case this Court took notice of its earlier decision in the Modi Sugar Mills' C case (supra) so that it is well settled that the amendment made by section 31 is retroactive and applies to assessments pending or closed as if the Amending Act had been in force at material times.\n\nThe qnestion is whether the judgment of the High Court dated July 24, 1961 answering question No. 1 of the aforesaid reference by stating that the sales tax had to be charged from the dealer for the assessment year 1948-49 at the rate applicable to the various commodities on April 1, 1948, and for the assessment year 1949-50 at the rate applicable on April 1, 1949, was binding on the Additional Judge (Revisions) in spite of the amendment made by the Amending Act by insertion of section 31 in the Act? The High Court has taken the view in its impugned judgment dated February 11, 19/0 that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on \"any ground whatsoever\", including the yound of any subsequent amendment in the law. and that it was bound to decide the case in conformity with the judgment of the High Court.\n\nThe High Court has expressed its view as follows,-\n\n\"The judgment of the High Court may be said to have become erroneous as a result of the amendment but so long as 'the judgment stands, it is binding upon the parties and the revising authority has no option except to give effect to it in its order passed under section 11 ( 6).\"\n\nThe High Court further made the following observation,-\n\n\"We however, express no opinion as to the course which the depa1iment should adopt in a situation like this, but we have no doubt in our mind that the amendment brought about by section 31 of the Act does not make the judgment of the High Court a nullity and the Judge (Revisions) was not free to ignore it for any reason whatsoever.''\n\nThe question is whether this view of the High Court is correct ?\n\nThe answer to the question depends on the answer to the further queBtion whether the proceedings for the assessment of the sales tax had become final after the High Court's judgment dated July . 24,\n\n1961 or whether, after that judgment, something remained to be do~ by the Additional Judge (Revisions) ? ·\n\nSub-section ( 6) of section 11 of the Act provides that the High, Court, upon hearing the reference, shall decide the questiom; of . law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, \"and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment.\" So while the Additional Judge (Revisions) was in seisin of the case for the limited purpose for passing such orders as were necessary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be appiied to the controversy.\n\nAccording to sub-section (2) of that section, the assessments made at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub-section that that was to be so notwithstanding any judgment, decree or order of any court.\n\nThe order of the Additional Judge (Revisions) dated December 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, and sub-section\n\n(2) of section 31 had the effect of making them \"good and valid in law\".\n\nIt cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31.\n\nIt has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub-section (6) of section 11 of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions of subsection (2) of section 31, so that the position would !i<1ve beeii the same as if no such order had been passed at all.\n\nThe High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erro-- neous, it could have filed an appeal against it to this Court under article 136 of the Constitution to have it set set aside or modified.\n\nIt is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 t years thereafter.\n\nThe. other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of Jaw had arisen, is also untenable -because that order (dated December 28,\n\n1968) was in favour of the department.\n\nIn fact any suggestion or observation of the High Court fer seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned\n\nA judgment o! the High Court dated February 11, 1970 and has come up in appeal against it.\n\nAnd now that this Court is in seisin of the case, it would be a work of supererogation ta require the parties, or. any of them, to go back to the Additional Judge (Revisions) or the High Court for an order.\n\nB It has next been argued that the amendment made in the Act by imertion of section 31 can not possibly be implemented as no machinery has been provided to give effect to it and that it should therefore have been ignored altogether. This argument has been made wilh\n\nreference to this Court's decision in Modi Sugar Mills' case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpooe of giving effect to section 31 of the Act in the facts and circumstances of this case.\n\nC So when section 31 of the Act is clearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 ·(as it stood prior to its amendment by section 7 of U.P.\n\nAct XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrqng with the view which has been taken by the D Additional Judge (Revisions) in his order dated December 28, 1968.\n\nThe appeal is allowed and the impugned judgment of the High Court dated February 11, 1970, is set aside.\n\nIn the circumstances of the case, the parties shall pay and bear their own costs.\n\nP.B.R.\n\nAppeal allowed.\n\n1546 SCI/76- GIPF.", "total_entities": 91, "entities": [{"text": "STATE OF UTTAR PRADESH AND ORS", "label": "PETITIONER", "start_char": 1, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH AND ORS", "offset_not_found": false}}, {"text": "MODI INDUSTRIES LIMITED", "label": "RESPONDENT", "start_char": 34, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "MODI INDUSTRIES LIMITED", "offset_not_found": false}}, {"text": "January 4, 1977", "label": "DATE", "start_char": 59, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "MODI INDUSTRIES LIMITED\n\nJanuary 4, 1977\n\n(V. 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C. Manchanda", "label": "LAWYER", "start_char": 3790, "end_char": 3805, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": "0. P. R.ana", "label": "LAWYER", "start_char": 3810, "end_char": 3821, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda and 0."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 3843, "end_char": 3852, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, J. P. Goyal and Shreepal Singh, for the Respondent."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 3854, "end_char": 3865, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, J. P. Goyal and Shreepal Singh, for the Respondent."}}, {"text": "Shreepal Singh", "label": "LAWYER", "start_char": 3870, "end_char": 3884, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, J. P. Goyal and Shreepal Singh, for the Respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 3951, "end_char": 3959, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J. This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February U, 1970."}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 3983, "end_char": 4005, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J. This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February U, 1970."}}, {"text": "February U, 1970", "label": "DATE", "start_char": 4102, "end_char": 4118, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J. This appeal by the State of Uttar Pradesh and three sales tax officers is directed against the judgment of the Allahabad High Court dated February U, 1970."}}, {"text": "article 13", "label": "PROVISION", "start_char": 4193, "end_char": 4203, "source": "regex", "metadata": {"statute": null}}, {"text": "Mod~ Industries Limited", "label": "PETITIONER", "start_char": 4244, "end_char": 4267, "source": "ner", "metadata": {"in_sentence": "Respondent Mod~ Industries Limited."}}, {"text": "section 7", "label": "PROVISION", "start_char": 4457, "end_char": 4466, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 4506, "end_char": 4515, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 4553, "end_char": 4572, "source": "regex", "metadata": {}}, {"text": "June 9, 1948", "label": "DATE", "start_char": 5060, "end_char": 5072, "source": "ner", "metadata": {"in_sentence": "The rate of sales tax for certain commodities was enhanced during the assessment year 1948- 49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948."}}, {"text": "July 1, 1948", "label": "DATE", "start_char": 5122, "end_char": 5134, "source": "ner", "metadata": {"in_sentence": "The rate of sales tax for certain commodities was enhanced during the assessment year 1948- 49, with effect from June 9, 1948, and for some other commodities with effect from July 1, 1948."}}, {"text": "section 11", "label": "PROVISION", "start_char": 5712, "end_char": 5722, "source": "regex", "metadata": {"statute": null}}, {"text": "8th June, 1948", "label": "DATE", "start_char": 5860, "end_char": 5874, "source": "ner", "metadata": {"in_sentence": "The dealer applied for a reference under section 11 ( 1) and the following two questions of law were referred to the High Court,-\n\n\"( 1) Whether the enhanced rate under notifications dated 8th June, 1948 and 30th June."}}, {"text": "30th June. 1948", "label": "DATE", "start_char": 5879, "end_char": 5894, "source": "ner", "metadata": {"in_sentence": "The dealer applied for a reference under section 11 ( 1) and the following two questions of law were referred to the High Court,-\n\n\"( 1) Whether the enhanced rate under notifications dated 8th June, 1948 and 30th June."}}, {"text": "section 3", "label": "PROVISION", "start_char": 5908, "end_char": 5917, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 5932, "end_char": 5945, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 6112, "end_char": 6121, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act", "statute": "Sales Tax Act"}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 6136, "end_char": 6155, "source": "regex", "metadata": {}}, {"text": "July 24, 1961", "label": "DATE", "start_char": 6322, "end_char": 6335, "source": "ner", "metadata": {"in_sentence": "By its judgment dated July 24, 1961, the High Court answered question No."}}, {"text": "section 11", "label": "PROVISION", "start_char": 6883, "end_char": 6893, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1948", "statute": "Sales Tax Act, 1948"}}, {"text": "February 22, 1966", "label": "DATE", "start_char": 7081, "end_char": 7098, "source": "ner", "metadata": {"in_sentence": "The High Court held in its order dated February 22, 1966 that the dealer was entitled to interest at the rate of two per cent on the refundable amount."}}, {"text": "October 11, 1968", "label": "DATE", "start_char": 7267, "end_char": 7283, "source": "ner", "metadata": {"in_sentence": "The dealer accordingly made an application to the Revising Authority on October 11, 1968 to pass an order under sub-section\n\n(6) of section 11 for a refund of Rs."}}, {"text": "section 11", "label": "PROVISION", "start_char": 7327, "end_char": 7337, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional Judge (Revisions) Sales Tax", "label": "COURT", "start_char": 7415, "end_char": 7453, "source": "ner", "metadata": {"in_sentence": "The Additional Judge (Revisions) Sales Tax however dismissed the application byi his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31' in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act."}}, {"text": "December 28, 1968", "label": "DATE", "start_char": 7508, "end_char": 7525, "source": "ner", "metadata": {"in_sentence": "The Additional Judge (Revisions) Sales Tax however dismissed the application byi his order dated December 28, 1968, as he took the view that that was not permissible because of the insertion of section 31' in the Act by the Uttar Pradesh Bikri Kar (Sanshodhan) Adhiniyam, 1962 (U.P. Act III of 1963) hereinafter referred to as the Amending Act."}}, {"text": "section 31", "label": "PROVISION", "start_char": 7605, "end_char": 7615, "source": "regex", "metadata": {"statute": null}}, {"text": "article 226", "label": "PROVISION", "start_char": 7815, "end_char": 7826, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 8148, "end_char": 8158, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1948", "label": "DATE", "start_char": 8506, "end_char": 8519, "source": "ner", "metadata": {"in_sentence": "The Act came into force on April 1, 1948."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8632, "end_char": 8641, "source": "regex", "metadata": {"statute": null}}, {"text": "Modi Sugar H Mills Limited", "label": "ORG", "start_char": 9488, "end_char": 9514, "source": "ner", "metadata": {"in_sentence": "That case came up to this Court at the instance of the present respondent, which was then known as the Modi Sugar H Mills Limited, and it was helrl in Commissioner of Sales Tax."}}, {"text": "(1961] 2 S.C.R. 189", "label": "CASE_CITATION", "start_char": 9641, "end_char": 9660, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 9946, "end_char": 9955, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 10066, "end_char": 10076, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10149, "end_char": 10158, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10198, "end_char": 10207, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 11076, "end_char": 11085, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 11125, "end_char": 11134, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 11737, "end_char": 11746, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 11798, "end_char": 11807, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 11869, "end_char": 11879, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 12694, "end_char": 12704, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 13321, "end_char": 13331, "source": "regex", "metadata": {"statute": null}}, {"text": "Bijli Cotton Mills", "label": "ORG", "start_char": 13405, "end_char": 13423, "source": "ner", "metadata": {"in_sentence": "The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills' case and have in fact not been challenged by counsel for the dealer..\n\nIt may be mentioned that in its judgment in Bijli Cotton Mills' case this Court took notice of its earlier decision in the Modi Sugar Mills' C case (supra) so that it is well settled that the amendment made by section 31 is retroactive and applies to assessments pending or closed as if the Amending Act had been in force at material times."}}, {"text": "Modi Sugar Mills' C", "label": "ORG", "start_char": 13619, "end_char": 13638, "source": "ner", "metadata": {"in_sentence": "The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills' case and have in fact not been challenged by counsel for the dealer..\n\nIt may be mentioned that in its judgment in Bijli Cotton Mills' case this Court took notice of its earlier decision in the Modi Sugar Mills' C case (supra) so that it is well settled that the amendment made by section 31 is retroactive and applies to assessments pending or closed as if the Amending Act had been in force at material times."}}, {"text": "section 31", "label": "PROVISION", "start_char": 13706, "end_char": 13716, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 14321, "end_char": 14331, "source": "regex", "metadata": {"statute": null}}, {"text": "February 11, 19/0", "label": "DATE", "start_char": 14409, "end_char": 14426, "source": "ner", "metadata": {"in_sentence": "The High Court has taken the view in its impugned judgment dated February 11, 19/0 that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on \"any ground whatsoever\", including the yound of any subsequent amendment in the law."}}, {"text": "section 11", "label": "PROVISION", "start_char": 15029, "end_char": 15039, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 15283, "end_char": 15293, "source": "regex", "metadata": {"statute": null}}, {"text": "24,\n\n1961", "label": "DATE", "start_char": 15703, "end_char": 15712, "source": "ner", "metadata": {"in_sentence": "24,\n\n1961 or whether, after that judgment, something remained to be do~ by the Additional Judge (Revisions) ? ·"}}, {"text": "section 11", "label": "PROVISION", "start_char": 15836, "end_char": 15846, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 16644, "end_char": 16654, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 16678, "end_char": 16687, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 17021, "end_char": 17031, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 17444, "end_char": 17454, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 17742, "end_char": 17752, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 17871, "end_char": 17881, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 18051, "end_char": 18061, "source": "regex", "metadata": {"statute": null}}, {"text": "article 136", "label": "PROVISION", "start_char": 18352, "end_char": 18363, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 18746, "end_char": 18756, "source": "regex", "metadata": {"statute": null}}, {"text": "December 28,\n\n1968", "label": "DATE", "start_char": 18878, "end_char": 18896, "source": "ner", "metadata": {"in_sentence": "other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of Jaw had arisen, is also untenable -because that order (dated December 28,\n\n1968) was in favour of the department."}}, {"text": "February 11, 1970", "label": "DATE", "start_char": 19132, "end_char": 19149, "source": "ner", "metadata": {"in_sentence": "the High Court dated February 11, 1970 and has come up in appeal against it."}}, {"text": "section 31", "label": "PROVISION", "start_char": 19473, "end_char": 19483, "source": "regex", "metadata": {"statute": null}}, {"text": "Modi Sugar Mills", "label": "ORG", "start_char": 19702, "end_char": 19718, "source": "ner", "metadata": {"in_sentence": "This argument has been made wilh\n\nreference to this Court's decision in Modi Sugar Mills' case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpooe of giving effect to section 31 of the Act in the facts and circumstances of this case."}}, {"text": "section 31", "label": "PROVISION", "start_char": 19868, "end_char": 19878, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 19946, "end_char": 19956, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 20137, "end_char": 20146, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 20187, "end_char": 20196, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_555_564_EN", "year": 1977, "text": "'.\n\nSTATE OF MADHYA PRADESH\n\nSTATE OF MAHARASHTRA & ORS.\n\nJanuary 5, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nCode of Civil Procedure, Order 2 Rule 2, bar under, when operates- Whether applicable when omission to sue has occurred by lack of knowledge or absence of right to claim.\n\nLimitation Act, s. 2(1), application to claim for salary-Whether effected by supension or dismissal order-Whether salary accrues while such orders remain operative.\n\nDismissing the appeal, the Court, HELD : ( l) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.\n\nA right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a \"portion of his claim\" within the meaning of Order 2 Rule 2 of the C.P .C. The crux of the matter is presence or Jack of awareness of the right at the time of first suit.\n\n[561D-E, 562-B]\n\nAmant Bibi v. Imdad Hussai1' 15 I.A. 106 at 112, applied.\n\nOm Prakash Gupta v. State of Uttar Pradesh [1955] 2 S.C.R. 391, distinguished.\n\nHigh Commissioner for India v. I. M. Lall 75 I.A. 225; Provim; e of Punjab\n\n\nThe bar under Order 2 Rule 2 of the C P .C. cannot operate when the litigant's cause of action in an earlier suit is totally different from the cause of actio!l in a later suit.\n\n[562-C]\n\nPawana Reena Saminathan v. Palaniappa 41 I.A. 142, applied.\n\n(2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53.\n\nThe cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal. [563C-D]\n\n\n(3) Under Fundamental Rule 52 the pay and alfowance of , a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal. Therefore, there would be no question of salary . accruing or accruing due so long as orders of suspension and dismissal stand. [564\n\nB-C] Klzem Chand v. Uriion of India, (1963] Supp. 1 S.C.R. 229, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1870 of 1968.\n\n(From the Judgment and Decree dated 6-3-1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.)\n\nI. N. Shroff and H. S. Parihar, for the appellant.\n\nS. B. Wad and M. N. Shroff, for respondent No. 1.\n\nA A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No. 2. .\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.\n\nT?e appellant is the State of Madhya Pradesh.\n\nThe first respondent 1s the State of Maharashtra. The second respondent is the plaintiff-decree holder.\n\nThey will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintilI.\n\nThe trial court passed a decree in favour of the plaintiff. It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative.\n\nThe further declaration was thoat the plaintiff shall be deemed to be continuing in service from 16 September, 1943.\n\nA sum of Rs. 64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest.\n\nBoth Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.\n\nMaharashtra preferred an appeal against the decree.\n\nMadhya Pradesh preferred objections against the order of costs.\n\nThe High Court confirmed the decree and the declarations.\n\nThe High Court however modified the decree 'alld held Madhya Pradesh liable.\n\nThe claim of the plaintiff against Maharashtra was dismissed.\n\nThe plaintiff was appointed Assistant Medical Officer in 1938.\n\nIn 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur).\n\nJn 1942 he was transferred to Hoshangabad.\n\nIn 1943 he applied for medical leave for four months.\n\nThe Civil Surgeon recommended leave for six weeks.\n\nThe plaintiff again applied for leave in the month of August, 1943.\n\nThe le<tve was sanctioned by the Civil Surgeon.\n\nThe plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keeping good health.\n\nThe Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave.\n\nThe Government sanctioned leave for six weeks.\n\nOn 28 September, 1943 the pfaintiff was suspended by an order with effect from 16 September, 1943.\n\nThe plaintiff was served with a notice dated 30 September, 1943 to show cause why he should not be dismissed from service.\n\nFour charges were levelled against the plaintiff.\n\nFirst, that he refused to come to duty at the time of epidemic in August, 1943; Second, that he left his station without permission.\n\nThird, that he refused to attend the Departmental enquiry when ordered to do so.\n\nFourth, that he wilfully and delibei\\ltely acted in total disregard of orders and absented himself from duty though he was declared to be fit to resume duty.\n\nI #\n\n'-. r\n\nThe Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved.\n\nI On 21 June, 1945 the plaintiff was asked to show cause why he should not be dismissed or reduced in rank.\n\nOn 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order.\n\nBy order dated 7 ovem ber, 1945 the. Provincial Government passed an order removmg the plaintiff from service with effect from that date.\n\nOn 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed.\n\nOn 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur.\n\nBy judgment dated . 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to be deemed to co_ntinue in service.\n\nThe plaintiff was thereafter reinstated in service as Assistant Surgeon on 12 December, 1953.\n\nHe was posted at Rays Hospital, Nagpur on 15 September, 1953.\n\nOn 13 January, 1954 the plaintiff was 'again suspended from service under order dated 9 January, 1954. The plaintiff handed over charge on 13 January, 1954.\n\nOn 1 February 1954 the plaintiff was served with a notice dated 29 Janwary, 1954 to show cause why he should not be removed from service.\n\nThe former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff.\n\nOn 2 February, 1956 the plaintiff was removed from service.\n\nHe appealed to the Governor.\n\nThe appeal was dismissed.\n\nOn 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur •against Madhya Pradesh and Maharashtra.\n\nThe plaintiff asked for a declaration that the order dated 9 January, 1<' 1954 suspending the plaintiff as well as the order dated 2 February, 1956 is illegal.\n\nThe plaintiff asked for •a declaration that he is deemed to continue in service. He claimed recovery of Rs. 64,588-2-0 as arrears of salary.\n\nThe plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are \"liable to make good the plaintiff's claim the liability for which is not exclusive but joint and several\".\n\nThe alternative case of the pla'intiff in the suit was that \"if it will be held that the State of Maharashtra and not the State of Madhya Pradesh is liable or viceversa the p1'aintiff will claim the decree against such State as would be liable\".\n\nThe Civil Judge passed the decree on 25 April 1959 declaring thei order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 removing the plaintiff from service as µlegal, void and inoperative.\n\nThe decree further stated that the\n\nplain~ .was deemed to continue in service from 16 September, 1943.\n\nT_he <;1vil Judge passed a decree against the State ofBombay with the drrect10n to pay Rs. 64,588-2-0 with interest at 6 per cent. .. B.oth Maharashtra and Madhya Pradesh went up in appeal.\n\nThe D1v1S1on Bench of the Bombay High Court placed the matter before a larger Bench and referred these two questions for the decision of the Larger Bench.\n\n(1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service. (2) Whether both or only one of the two States can be made liable for the payment of arrears of salary of the pl'aintiff, if so, which State is liable.\n\nThe larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into force on 1 November, 1956 is the principal successor State. of the former State of Madhya Pradesh.\n\nThe High Court further said that the State of Maharashtra is the successor State of the former J\\'Iadhya Pradesh inasmuch as certain territories, namely, Vidharbha which formed part of the former State of Madhya Pradesh became a part of t'Je new State of Maharashtra.\n\nThe High Court then referred to clause\n\n(B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the pl'aintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liability for the plaintiff's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act.\n\nThe larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff's claim arose in its entirety within the territories which formed part of the Maharashtra.\n\nThe High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plaintiff.\n\nThe High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiff's claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act.\n\nThe High Court said that the plaintiff's claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff.\n\nThe High Court also said thut at the time of the plaintiff's appointment in 1939 the plaintiff's services were available for the then enfire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh.\n\nTherefore; the High Court said that section 87 (b) of the Act would not apply.\n\nUnder the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the aopointed day not exclusively purposes of any of the two successor States.\n\nMadhya Pradesh raised three contentions.\n\nFirst, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the suit filed by the plaintiff in 1949 and was\n\n\\ •\n\ntherefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claiming the salary and allowances for the period of 16 September, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956. Second, the\n\nplaintiff's claim in the second suit for salary and allowances prior to 6 October, 1953 would be barred by the reason of Article 102 of the Limitation Act 1908. Third, the liability, if any, would be under section 88 (b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned. Reference was made to section 8 ( 1) ( c) of the Act for the purpose. Further it is said by -the appellant that on or after 1 November, 1956 the plaintiff could continue the suit only against the State of . Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956.\n\nMaharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88 ( c) of the Act. It was said on behalf of Maharashtra that the plaintiff had been appointed to serv'ice in Central Provinces and Berar which became the principal successor State of Madhya Pradesh. The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh.\n\nIn order to appreciate the rival contentions reference is necessary to two sections of the Act.\n\nSection 8 7 speaks of liability in the case of contracts.\n\nBroadly stated, the provisions of section 87 of the Act are that where before the appointed day \"1 November, 1956\" an existing State has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power-(a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are, as from the appointed day, exclusively purposes of any one of them,-of that State; and (c) if there be two or more successor States and the purposes of the contract are, as from that day, not exclusively purposes of any one of them,-of the principal successor State; and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilit; es of the existing State be rights or liabilities of the successor State or the principal successor State.\n\nThe proviso to section 87 of the Act is that where the Jiab'li'y attaches under clause (c) the initial allocation of rights and liabilities made by this sub-section shall be subject to such financial adjustment as may be agreed upon between all the successor St>ates concerned, or in default of such agreement, as the Central Government may by order direct. ·\n\nSection 88 of the Act nrovides that where before the apoointed day, an existing State is subject to any l; ab; Iitv in renect of an actionable wrongother than breach of contract. that liability shall (a) if there be only one successor State, be a 'liability of that State; (b) if\n\n-----~:.ll!l A•Fl1119' .~\n\nthere be two or more succeissor States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and ( c) in any other case, be initially a lrabi!ity of the principal successor State, but subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the Central Government may by order direct.\n\nThe claim for declaration tlrat the order of suspension as well as the order of dismis:sal was void is in respect of an actionable wrong other than breach of C\\l!ltract.\n\nIn order to determine as to which of the two States would be lialfe under section 88 of the 1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly C in the tenitories of one State and partly in the territories ot\n\nthel other.\n\nThe departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only.\n\nThe final orders which were challenged in the suit were passed at Nagpur which became part of the St!:ite of Bombqy and later on known as Maharashtra.\n\nThe plaintiff's cause of action comprises of every fact which is necessary to be D proved.\n\nThe plaintiff based his claim with regard to departmental enquiry which was held at Hoshangabad and also with regard to impugned. order p•assed at Nagpur.\n\nThe appellant State is the principal snccessor State of the former State of Madhya Pradesh.\n\nMaharashtra was one .of the successor States, like Madhya Pradesh.\n\nSection 88 (a) of the 1956 Act in the present case has no application because it speaks of only one successor State.\n\nSection 88 (b) of the E 1956 Act refers to the State where the cause of action wholly arose within the territories of either of the two successor States.\n\nIn the present case, it cannot be said that the cause of action arose wholly within the successor Sl'ate of Maharashtra.\n\nTherefore, the residuary provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh.\n\nThe High Court was right in arriving at the conclusion that F Madhya Pradesh is liable.\n\nThe plaintiff's suit in 1949 was only for setting aside the impugned orders.\n\nThe plaintiff did not ask for relief for arrears of salary or the obvious reason that the plaintiff in the l 949 suit asked for settmg aside of the impugned orders and an order that the phintiff was deemed to be continuing in service.\n\nThe plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India v. I. M. Lall(').\n\nThe Judicial Committee in that case held that a civil servant was not entitled to sue the State for recovering arrears of salary and pay.\n\nCounsel for Madhya Pradesh rdied .on the decision in Province of Punjab v. Pandit Tara Chand 0 which held that a public servant had a right to bring a suit for arrears of pay.\n\nThe decision of the Judica! Comm::tee in Lall's case. (supra~ takes a contrary view to the dec1s1on of the Federal Court m Pandit\n\n(I) 75 T.A. 225.\n\n(2) [1947] F.C.R. 89.\n\n\\ •\n\nTara Clumd's case (supra). lt it true that the decision of the Federal Court in Pandit Tara Chand's case (supra) was not brought to the notice of the Privy Council.\n\nUnder section 208 of the Government of India Act 1935 the law declared liy the Judgment of the Privy Council had to be followed by all the Courts includmg the Federal Court.\n\nTherefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in La/l's case (supra).\n\nThis Court in State of B:i/iar v. Abdul Majid(') stated that a Government servant could ask for arrears of salary.\n\nCounsel for Madhya Pradesh said that the decision of this Court in Abdul Majid's case (supra) deelared what the existing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit.\n\nIt is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Procedure would not be entitled to claim salary in the 1956 suit.\n\nThe contention of Madhya Pradesh cannot be accepted.\n\nThe plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.\n\nIt will not be correct to say that while the decision of the Judicial Committee in Lall' s case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary.\n\nOn the contrary, it will be correct to say that he knew that he was not entitled to make such a claim.\n\nIf at the date of the former suit the plaintiff is not a ware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit.\n\nThe reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit.\n\nA right which a litigant does not know that he possesses or a right which is not in existence at the lime of the first suit can hardly be regarded as a \"portion of his claim\" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure.\n\nSee Amant Bibi v. lmdad Husa'n( 2 ). The crux of the matter is presence or lack of awareness of the right at the time of first suit.\n\nThis Court in Om Prakash Gupta v. State of Uttnr Pradesh( 3 ) considered the prayer for refund of court fees on a claim which was abandoned.\n\nThe plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal.\n\nIn view of the decision in Lall's case (supra) the plain' in that case was amended by delet; ng the claim for arrears of salarv anrl Hl<o for 1famHizes.\n\nThe plaintiff thereupon oraved for refund of the court fees which had been paid on arrears of salary for damages.\n\nBoth the trial Court\n\n(I) [l 955] 1 S.C.R. 286.\n\n(2) 15 I.A. 106, 112.\n\n\nand the High Court rejected the claim for refund of court fees This Court also upheld the same view.\n\nThe reason given by th~ Court was that at the time the suit was instituted the law as it then stood permitted such a claim to be made.\n\nThe decision of the Privy Council made it clear that no such claim could be made.\n\nThe decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.\n\nThe appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit.\n\nThe plaintiff could not have asked for arrears of salary on the law as it then stood.\n\nThe plaintiff did not know of . or possess any such right.\n\nThe plaintiff, therefore, cannot be said to have omitted to sue for any right.\n\nAnother reason why the bar under Order 2 Rule 2 of the Code of Civil Pt'ocednre cannot operate is that the plaintiff's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit.\n\nSee Pavana Reena Saminathan v. Palaniappa(').\n\nThis Court in Jai Chand Sawhney v. Union of India (') held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred. The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in Fcrvice throughout the period during which the order of dismissal remains operative.\n\nOnce an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.\n\nThe same view has been taken by this Court in Sakal Dean Sahai Srivastava v. Union of lndia( 3 ). In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.\n\nRelying on the decision of this Court in Jai Chand Sawhney's case and Sakal Deep's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years' salary.\n\nThe present case is not one of setting aside an order of dism; ssal simpliciter.\n\nWhen the plaintiff filed a suit in 1949 he G could not ask for arrears of salary.\n\nPursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953.\n\nThree features are to be borne in mind in appreciating the plaintiff's case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement H of the plaintiff on 12 December, 1953.\n\nSecond, the plaintiff was\n\n(1) 41 LA. 142. (2)\n\n[1970] S.C.R. 222.\n\nc) [19741 2 S.C.R 485.\n\n' .\n\n'-' J\n\nagain suspended on 19 January, 1954 and was dismissed on 23 February 1956.\n\nThe Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till bis reinstatement on 12 December, 1953 he was not entitled to salary.\n\nAgain on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.\n\nOn these facts two consequences arise in the present appeal.\n\nFirst, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was reinstated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953.\n\nSecond, during the period of suspension he was not entitled to salary under Fundamental Rule 53.\n\nFurther decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fufidamental Rule 54.\n\nTherefore, the plaintiff's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953.\n\nThe plaintiff's salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.\n\nThe rulings of this Court in Jai Chand Sawhney's case (supra) and Sakal Deep's case (supra) do not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree.\n\nThe plaintiff's cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was sus2ended during the period of suspension._ The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956.\n\nTherefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.\n\nThe orinal order of suspension on 16 September, 1943 as well as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953.\n\nTherefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff's claim for salary accrued due.\n\nThis salary was again suspended from 19 January, 1954.\n\nDismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension.\n\nThe order of suspension does not put an end to his service.\n\nSuspension merely suspends the claim to salary.\n\nDuring suspension there is suspension allowance.\n\nSee Khem Chand v.\n\nUnion of\n\n2-112'.SCJ/77\n\nA India(') where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence llowance which is less than his salary. Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of_ his dismissal or removal.\n\nTherefore, there would be no question of salary accruing or accruing B due so long as orders of suspension and dismissal stand.\n\nThe High Court was correct in the conclusion that the plaintiff's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.\n\nFor the foregoing reasons the appeal is dismissed.\n\nThere will be costs only to the plaintiff respondent to be paid by the State of C Madhya Pradesh.\n\nM .R.\n\nAppeal dismissed.\n\n(I) [1963] Suppl. 1. S.C.R. 229.\n\nI •\n\n./ \\.", "total_entities": 113, "entities": [{"text": "STATE OF MADHYA PRADESH", "label": "PETITIONER", "start_char": 4, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ORS", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ORS", "offset_not_found": false}}, {"text": "January 5, 1977", "label": "DATE", "start_char": 58, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "January 5, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 93, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 107, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 128, "end_char": 151, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 153, "end_char": 167, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 300, "end_char": 314, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(1)", "label": "PROVISION", "start_char": 316, "end_char": 323, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 544, "end_char": 558, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 566, "end_char": 571, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 869, "end_char": 883, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "[1955] 2 S.C.R. 391", "label": "CASE_CITATION", "start_char": 1115, "end_char": 1134, "source": "regex", "metadata": {}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 1243, "end_char": 1257, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule", "label": "STATUTE", "start_char": 1482, "end_char": 1577, "source": "regex", "metadata": {}}, {"text": "I. N. Shroff", "label": "PETITIONER", "start_char": 2317, "end_char": 2329, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar, for the appellant.", "canonical_name": "I. N. Shroff"}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 2334, "end_char": 2347, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar, for the appellant."}}, {"text": "S. B. Wad", "label": "LAWYER", "start_char": 2369, "end_char": 2378, "source": "ner", "metadata": {"in_sentence": "S. B. Wad and M. N. Shroff, for respondent No."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 2383, "end_char": 2395, "source": "ner", "metadata": {"in_sentence": "S. B. Wad and M. N. Shroff, for respondent No.", "canonical_name": "I. N. Shroff"}}, {"text": "A A. S. Bobde", "label": "LAWYER", "start_char": 2420, "end_char": 2433, "source": "ner", "metadata": {"in_sentence": "A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No."}}, {"text": "G. L.'Sanghi", "label": "LAWYER", "start_char": 2435, "end_char": 2447, "source": "ner", "metadata": {"in_sentence": "A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No."}}, {"text": "V. K. Sanghi", "label": "LAWYER", "start_char": 2449, "end_char": 2461, "source": "ner", "metadata": {"in_sentence": "A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No."}}, {"text": "Rama Gupta", "label": "LAWYER", "start_char": 2468, "end_char": 2478, "source": "ner", "metadata": {"in_sentence": "A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No."}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 2483, "end_char": 2494, "source": "ner", "metadata": {"in_sentence": "A A. S. Bobde, G. L.'Sanghi, V. K. Sanghi, Miss Rama Gupta and M. S. Gupta, for respondent No."}}, {"text": "RAY", "label": "JUDGE", "start_char": 2565, "end_char": 2568, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 2650, "end_char": 2670, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay."}}, {"text": "State of Madhya Pradesh", "label": "RESPONDENT", "start_char": 2694, "end_char": 2717, "source": "ner", "metadata": {"in_sentence": "T?e appellant is the State of Madhya Pradesh.", "canonical_name": "STATE OF MAHARASHTRA & ORS"}}, {"text": "State of Maharashtra", "label": "RESPONDENT", "start_char": 2748, "end_char": 2768, "source": "ner", "metadata": {"in_sentence": "The first respondent 1s the State of Maharashtra.", "canonical_name": "STATE OF MAHARASHTRA & ORS"}}, {"text": "2 February 1956", "label": "DATE", "start_char": 3133, "end_char": 3148, "source": "ner", "metadata": {"in_sentence": "It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative."}}, {"text": "16 September, 1943", "label": "DATE", "start_char": 3281, "end_char": 3299, "source": "ner", "metadata": {"in_sentence": "The further declaration was thoat the plaintiff shall be deemed to be continuing in service from 16 September, 1943."}}, {"text": "Bombay", "label": "GPE", "start_char": 3370, "end_char": 3376, "source": "ner", "metadata": {"in_sentence": "64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 3396, "end_char": 3407, "source": "ner", "metadata": {"in_sentence": "64, 588-2-0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to pay the same with interest."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 3457, "end_char": 3471, "source": "ner", "metadata": {"in_sentence": "Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff."}}, {"text": "Hoshangabad", "label": "GPE", "start_char": 4044, "end_char": 4055, "source": "ner", "metadata": {"in_sentence": "Jn 1942 he was transferred to Hoshangabad."}}, {"text": "28 September, 1943", "label": "DATE", "start_char": 4621, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "On 28 September, 1943 the pfaintiff was suspended by an order with effect from 16 September, 1943."}}, {"text": "30 September, 1943", "label": "DATE", "start_char": 4763, "end_char": 4781, "source": "ner", "metadata": {"in_sentence": "The plaintiff was served with a notice dated 30 September, 1943 to show cause why he should not be dismissed from service."}}, {"text": "22 February, 1945", "label": "DATE", "start_char": 5316, "end_char": 5333, "source": "ner", "metadata": {"in_sentence": "r\n\nThe Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved."}}, {"text": "21 June, 1945", "label": "DATE", "start_char": 5506, "end_char": 5519, "source": "ner", "metadata": {"in_sentence": "I On 21 June, 1945 the plaintiff was asked to show cause why he should not be dismissed or reduced in rank."}}, {"text": "18 August, 1945", "label": "DATE", "start_char": 5613, "end_char": 5628, "source": "ner", "metadata": {"in_sentence": "On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order."}}, {"text": "Government of Central Provinces and Berar", "label": "ORG", "start_char": 5633, "end_char": 5674, "source": "ner", "metadata": {"in_sentence": "On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order."}}, {"text": "6 January, 1949", "label": "DATE", "start_char": 6104, "end_char": 6119, "source": "ner", "metadata": {"in_sentence": "On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur."}}, {"text": "Second Additional District Judge, Nagpur", "label": "COURT", "start_char": 6167, "end_char": 6207, "source": "ner", "metadata": {"in_sentence": "On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur."}}, {"text": "31 August, 1953", "label": "DATE", "start_char": 6230, "end_char": 6245, "source": "ner", "metadata": {"in_sentence": "31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to be deemed to co_ntinue in service."}}, {"text": "12 December, 1953", "label": "DATE", "start_char": 6477, "end_char": 6494, "source": "ner", "metadata": {"in_sentence": "The plaintiff was thereafter reinstated in service as Assistant Surgeon on 12 December, 1953."}}, {"text": "Rays Hospital, Nagpur", "label": "ORG", "start_char": 6514, "end_char": 6535, "source": "ner", "metadata": {"in_sentence": "He was posted at Rays Hospital, Nagpur on 15 September, 1953."}}, {"text": "15 September, 1953", "label": "DATE", "start_char": 6539, "end_char": 6557, "source": "ner", "metadata": {"in_sentence": "He was posted at Rays Hospital, Nagpur on 15 September, 1953."}}, {"text": "13 January, 1954", "label": "DATE", "start_char": 6563, "end_char": 6579, "source": "ner", "metadata": {"in_sentence": "On 13 January, 1954 the plaintiff was 'again suspended from service under order dated 9 January, 1954."}}, {"text": "29 Janwary, 1954", "label": "DATE", "start_char": 6782, "end_char": 6798, "source": "ner", "metadata": {"in_sentence": "On 1 February 1954 the plaintiff was served with a notice dated 29 Janwary, 1954 to show cause why he should not be removed from service."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 7791, "end_char": 7811, "source": "ner", "metadata": {"in_sentence": "The alternative case of the pla'intiff in the suit was that \"if it will be held that the State of Maharashtra and not the State of Madhya Pradesh is liable or viceversa the p1'aintiff will claim the decree against such State as would be liable\"."}}, {"text": "State of Madhya Pradesh", "label": "ORG", "start_char": 7824, "end_char": 7847, "source": "ner", "metadata": {"in_sentence": "The alternative case of the pla'intiff in the suit was that \"if it will be held that the State of Maharashtra and not the State of Madhya Pradesh is liable or viceversa the p1'aintiff will claim the decree against such State as would be liable\"."}}, {"text": "State ofBombay", "label": "ORG", "start_char": 8332, "end_char": 8346, "source": "ner", "metadata": {"in_sentence": "T_he <;1vil Judge passed a decree against the State ofBombay with the drrect10n to pay Rs."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 8503, "end_char": 8520, "source": "ner", "metadata": {"in_sentence": "The D1v1S1on Bench of the Bombay High Court placed the matter before a larger Bench and referred these two questions for the decision of the Larger Bench."}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 9047, "end_char": 9072, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1 November, 1956", "label": "DATE", "start_char": 9115, "end_char": 9131, "source": "ner", "metadata": {"in_sentence": "The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into force on 1 November, 1956 is the principal successor State."}}, {"text": "Vidharbha", "label": "GPE", "start_char": 9360, "end_char": 9369, "source": "ner", "metadata": {"in_sentence": "The High Court further said that the State of Maharashtra is the successor State of the former J\\'Iadhya Pradesh inasmuch as certain territories, namely, Vidharbha which formed part of the former State of Madhya Pradesh became a part of t'Je new State of Maharashtra."}}, {"text": "section 88", "label": "PROVISION", "start_char": 9522, "end_char": 9532, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88(c)", "label": "PROVISION", "start_char": 9846, "end_char": 9859, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88(c)", "label": "PROVISION", "start_char": 10136, "end_char": 10149, "source": "regex", "metadata": {"statute": null}}, {"text": "section 87", "label": "PROVISION", "start_char": 10434, "end_char": 10444, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88", "label": "PROVISION", "start_char": 10467, "end_char": 10477, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces and Berar", "label": "GPE", "start_char": 10909, "end_char": 10936, "source": "ner", "metadata": {"in_sentence": "The High Court also said thut at the time of the plaintiff's appointment in 1939 the plaintiff's services were available for the then enfire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh."}}, {"text": "section 87", "label": "PROVISION", "start_char": 11044, "end_char": 11054, "source": "regex", "metadata": {"statute": null}}, {"text": "section 87(c)", "label": "PROVISION", "start_char": 11118, "end_char": 11131, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 11591, "end_char": 11605, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 11609, "end_char": 11636, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "6 October, 1953", "label": "DATE", "start_char": 11883, "end_char": 11898, "source": "ner", "metadata": {"in_sentence": "Second, the\n\nplaintiff's claim in the second suit for salary and allowances prior to 6 October, 1953 would be barred by the reason of Article 102 of the Limitation Act 1908."}}, {"text": "Article 102", "label": "PROVISION", "start_char": 11932, "end_char": 11943, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act 1908", "label": "STATUTE", "start_char": 11951, "end_char": 11970, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 88", "label": "PROVISION", "start_char": 12017, "end_char": 12027, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "Nagpur District", "label": "GPE", "start_char": 12135, "end_char": 12150, "source": "ner", "metadata": {"in_sentence": "Third, the liability, if any, would be under section 88 (b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned."}}, {"text": "section 8", "label": "PROVISION", "start_char": 12233, "end_char": 12242, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "State of . Bombay", "label": "ORG", "start_char": 12407, "end_char": 12424, "source": "ner", "metadata": {"in_sentence": "Further it is said by -the appellant that on or after 1 November, 1956 the plaintiff could continue the suit only against the State of ."}}, {"text": "section 88", "label": "PROVISION", "start_char": 12653, "end_char": 12663, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act 1908", "statute": "the Limitation Act 1908"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 13073, "end_char": 13082, "source": "regex", "metadata": {"statute": null}}, {"text": "section 87", "label": "PROVISION", "start_char": 13166, "end_char": 13176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 87", "label": "PROVISION", "start_char": 14137, "end_char": 14147, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 14440, "end_char": 14458, "source": "ner", "metadata": {"in_sentence": "The proviso to section 87 of the Act is that where the Jiab'li'y attaches under clause (c) the initial allocation of rights and liabilities made by this sub-section shall be subject to such financial adjustment as may be agreed upon between all the successor St>ates concerned, or in default of such agreement, as the Central Government may by order direct. ·"}}, {"text": "Section 88", "label": "PROVISION", "start_char": 14483, "end_char": 14493, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88", "label": "PROVISION", "start_char": 15509, "end_char": 15519, "source": "regex", "metadata": {"statute": null}}, {"text": "Nagpur", "label": "GPE", "start_char": 15957, "end_char": 15963, "source": "ner", "metadata": {"in_sentence": "The final orders which were challenged in the suit were passed at Nagpur which became part of the St!:ite of Bombqy and later on known as Maharashtra."}}, {"text": "Section 88", "label": "PROVISION", "start_char": 16452, "end_char": 16462, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 88", "label": "PROVISION", "start_char": 16570, "end_char": 16580, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88(c)", "label": "PROVISION", "start_char": 16895, "end_char": 16908, "source": "regex", "metadata": {"statute": null}}, {"text": "Lall", "label": "OTHER_PERSON", "start_char": 17905, "end_char": 17909, "source": "ner", "metadata": {"in_sentence": "Comm::tee in Lall's case. ("}}, {"text": "[1947] F.C.R. 89", "label": "CASE_CITATION", "start_char": 18017, "end_char": 18033, "source": "regex", "metadata": {}}, {"text": "Tara Clumd", "label": "OTHER_PERSON", "start_char": 18041, "end_char": 18051, "source": "ner", "metadata": {"in_sentence": "\\ •\n\nTara Clumd's case (supra)."}}, {"text": "Pandit Tara Chand", "label": "OTHER_PERSON", "start_char": 18121, "end_char": 18138, "source": "ner", "metadata": {"in_sentence": "lt it true that the decision of the Federal Court in Pandit Tara Chand's case (supra) was not brought to the notice of the Privy Council."}}, {"text": "section 208", "label": "PROVISION", "start_char": 18213, "end_char": 18224, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act 1935", "label": "STATUTE", "start_char": 18232, "end_char": 18260, "source": "regex", "metadata": {}}, {"text": "Abdul Majid", "label": "OTHER_PERSON", "start_char": 18790, "end_char": 18801, "source": "ner", "metadata": {"in_sentence": "Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid's case (supra) deelared what the existing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit."}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 19089, "end_char": 19103, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act 1935", "statute": "the Government of India Act 1935"}}, {"text": "Code of Civil Procedure would not be entitled to claim salary in the 1956", "label": "STATUTE", "start_char": 19111, "end_char": 19184, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 19281, "end_char": 19295, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure would not be entitled to claim salary in the 1956", "statute": "the Code of Civil Procedure would not be entitled to claim salary in the 1956"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19299, "end_char": 19326, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 20312, "end_char": 20326, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 20330, "end_char": 20357, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madhya Pradesh", "label": "PETITIONER", "start_char": 21674, "end_char": 21688, "source": "ner", "metadata": {"in_sentence": "The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions contained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit."}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 21784, "end_char": 21798, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure from asking for arrears of salary in the 1956", "label": "STATUTE", "start_char": 21806, "end_char": 21875, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order 2 Rule 2", "label": "PROVISION", "start_char": 22143, "end_char": 22157, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure from asking for arrears of salary in the 1956", "statute": "the Code of Civil Procedure from asking for arrears of salary in the 1956"}}, {"text": "27 November, 1962", "label": "DATE", "start_char": 23098, "end_char": 23115, "source": "ner", "metadata": {"in_sentence": "In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee."}}, {"text": "1 July, 1949", "label": "DATE", "start_char": 23144, "end_char": 23156, "source": "ner", "metadata": {"in_sentence": "In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee."}}, {"text": "Jai Chand Sawhney", "label": "OTHER_PERSON", "start_char": 23308, "end_char": 23325, "source": "ner", "metadata": {"in_sentence": "Relying on the decision of this Court in Jai Chand Sawhney's case and Sakal Deep's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years' salary."}}, {"text": "Sakal Deep", "label": "OTHER_PERSON", "start_char": 23337, "end_char": 23347, "source": "ner", "metadata": {"in_sentence": "Relying on the decision of this Court in Jai Chand Sawhney's case and Sakal Deep's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years' salary."}}, {"text": "30 August, 1953", "label": "DATE", "start_char": 23670, "end_char": 23685, "source": "ner", "metadata": {"in_sentence": "Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953."}}, {"text": "Madhya Pradesh Government", "label": "ORG", "start_char": 24301, "end_char": 24326, "source": "ner", "metadata": {"in_sentence": "The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till bis reinstatement on 12 December, 1953 he was not entitled to salary."}}, {"text": "6 October, 1956", "label": "DATE", "start_char": 25033, "end_char": 25048, "source": "ner", "metadata": {"in_sentence": "First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was reinstated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953."}}, {"text": "28 January, 1956", "label": "DATE", "start_char": 25317, "end_char": 25333, "source": "ner", "metadata": {"in_sentence": "Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fufidamental Rule 54."}}, {"text": "19 January, 1954", "label": "DATE", "start_char": 26203, "end_char": 26219, "source": "ner", "metadata": {"in_sentence": "The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956."}}, {"text": "23 February, 1956", "label": "DATE", "start_char": 26257, "end_char": 26274, "source": "ner", "metadata": {"in_sentence": "The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956."}}, {"text": "7 November, 1945", "label": "DATE", "start_char": 26696, "end_char": 26712, "source": "ner", "metadata": {"in_sentence": "The orinal order of suspension on 16 September, 1943 as well as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953."}}, {"text": "State of C Madhya Pradesh", "label": "ORG", "start_char": 28081, "end_char": 28106, "source": "ner", "metadata": {"in_sentence": "There will be costs only to the plaintiff respondent to be paid by the State of C Madhya Pradesh."}}]}
{"document_id": "1977_2_565_572_EN", "year": 1977, "text": "MADRAS REFINERIES LTD.\n\nCHIEF CONTROLLING REYE.NUB AUTHORITY, BOARD OF\n\nREVENUE, MADRAS\n\nJanuary 5, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.]\n\nIndian Stamp Act, 1899-Loan Agreement and Deed of Trust and Mortgage executed on the same day-Payment of stamp duty on which document to be paid-Tests for deciding.\n\n. The app7llant company executed a Loan and Note Purchase Agreement with a f?re1gn bnk. Under that agreement the appellant was to amhorise C the creation and ISsuanoe of secured notes, Series A and B, and the Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the Bank. The Deed of Trust and Mortgage stated that as the appellant was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to boqow money from time to time to finance such construction and to issue its Notes therefor, and to mortgage and charge its properties to secure the payment of such Notes, it executed the Deed of Trust aud Mortgage as Security in accordance with the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal and the premium, if any, and t!; te interest on D the Notes, and of all other monies for the time being :md from time to time owing on• the security of the indenture and on the Notes and the performance by the Company of all of its obligations thereunder. It was also agreed that the Notes shall be secured and shall have the other terms and conditions provided in the agreement and shall be guaranteed by the President of India pursuant to the terms of the Guarantee Agreement. The Guarantee Agreement states that the President of India, as the guarantor, unconditionally guaranteed as primary obligor and not as surety merely, the due and punctual payment E from time to time of the principal as well as interest stated m the Agreement.\n\nThe obligations of the guarantor were absolute and unconditional under any and all circumstances and were not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof. It was also provided that each and every remedy of the Trustee shall be cumulative and shall be in addition to any other remedy given therein or under the mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute. The Guarantee Agreement was executed on the same day as the Deed of Trust and Mortgage between the F President of India and the foreign bank as a Trustee.\n\nThe High Court decided that stamp duty was chargeable on the Trust and Mortgage Deed under Art. 40 (b) of Schedule I to the Act.\n\nIn appeal to this Court it was contended that it was the Guarantee Agreement which was the principal and primary security and that the Deed of Trust and Mortgage was a collateral or auxiliary security and as such stamp duty was G pa ya bl e under Art. 40 ( c) and that the Guarantee Agreement was exempt from duty under s. 3 and debentures under Art. 27. ,\n\nDismissing the Appeal,\n\nHELD : ( 1) It is the real and true meaning of the deed of.\n\nTst and Mortgage and the Guarantee Agreement which has to be ascertamed Jrrespective of the description given by the parties. [568 El\n\n(2) The Trust and Mortgage Deed was executed before the execution of the Guarantee Agreement though both of them were executed on the same day. It was the Deed of Trust and Mortgage which was the security for the\n\nA loan though the loan was also guaranteed by the President in terms 0£ the Guarantee Agreement.\n\n[568 G-H]\n\n(3) The. terms and conditions of the Guarantee Agreement cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or the primary security for the loan.\n\nThe Deed of Trust and Mortgage was clearly the principal or the primary security and could not be said to be a collateral agreement. [569-H]\n\n( 4) The Deed of Trust clearly stated that the terms \"Collateral A, greements\" shall mean the Guarantee Agreement and the Undertaking. [570 A-BJ\n\n(5) The Guarantee Agreement was not an instrument of sale, mortgage or settlement and did not fall within the purview of s. 4 (1) of the Act.\n\n(571 iiiF]\n\n(6) There is no justification for the contention that the debentures were the principal instruments and not the Deed of Trust and Mortgage. Tile secured notes were issued under and secured by the Deed of Trust and Mortgage. The notes were issued in consequence of and on the security of the Deed of Trust and Mortgage.\n\n[571 H, 572 A]\n\nCML APPELLATE JURISDICTION: Civil Appeal No. 709 of 1975.\n\n(Appeal by Special Leave from the Judgment and Order dt. 9-10-74 o~ the Madra5 High Court in Referred Oase No. 4 of 1968)\n\nP. Ram Reddy, C. Ramakrishna and A. V. V. Nair, for the Appellant.\n\nV. P. Raman, A. V. Rangam and Miss A. Subhashini, f()[ the Respondent.\n\nThe Judgment of the Court was delivered by\n\nSmNGHAL J .-This appeal by speciru leave arises out of the .decision of the Madras High Court dated October 9, 1974, on a reference by the Chief Controlling Revenue-authority under section 57 of the Indian Stamp Act, 1899, hereinafter referred to as the Act.\n\nThe Board of Revenue, Madras, which was the Chief Controlling Revenue-authority, initially stated the C'aSe raising the following questions for decision,-\n\n(a)\n\n(b)\n\nWhether the decision of the Board of Revenue that the\n\ninstrument relating to the Deed of Trust and Mortgage would attrac• the levy of a Stamp Duty as laid down in Article 40(b) oi Schedule I of the Indian Stamp Act and that the debentures would be exempted from the levy of stamp duty is correct or not; and\n\nWhetheT the claim of the Respondent herein that the stamp duty is payable on the debenture under Article 27(a) and on the Deed of Trust and Mortgage under Article 40(c) is tenable or not?\n\nThe High Court directed the Board oi Revenue to refer three additional questions, but u1timately took the view that the additional questions did not really arise in the case.\n\nIt answered the first question in\n\n\\ •\n\n'). ..\n\n' ' '¥ADRAS RBFINERIBS v. c. c. REV. AUTH. (Shinghal, !.) 567\n\nfavour of the Revenue and the second question against the Madras Refineries Limited, hereinafter referred 1x> as the Company.\n\nTue Company feels aggrieved and has come up in appeal tQ this Court. It will be enough to state those facts which bear on the 'Controversy before us.\n\nThe Company was incorporated under the Indian Companies Act, 1956, as a public limited company. An agreement known as the Loan and Note Purchase Agreement was executed between the Company and the First National City Bank and six others on December 20, 1966, by which the Company agreed to authorise the creation and issuance of $ 14,880,000 (U.S.) principal amount of its 5% secured notes Series 'A', and $ 7,440,300 (U.S.) principal amount of its 5f% secured notes Series 'S', 'alld the sale of, or the borrowing to be evidenced by such Notes in accordance with the terms and provisions of the agreement.\n\nThe Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the First National City Bank. It was al1o agreed that the Notes shall be secured oand shall have the other terms and provisions provided in the agryement ancj. 'shall be guaranteed by the President of_ India pursuant to tb.e terms of a \"Guarantee Agreement\", in the prescribed form.\n\nWe shall have occasion to refer to the relevant clauses of the Loan and Note Purchase Agreement, the Deed of Trust and Mortgage and the Guarantee Agreement as and when necessary.\n\nThe Deed of Trust and Mortgage and the Guarantee Agreement were executed between the President and the First National City Bank (as Tmstee) on June 15, 1967. In the meantime the Company made an application to the Collector under section 31 of the Act for opinion as to the stamp duty with which the Dee!f of Trust and Mortgage wa~. chargeable, and the Collector referred the matter to the Board of Revenue.\n\nThe Board decided on June 28, 1967 that the duty W'as chargeable on the Trust and Mortgage Deed under Article 40(b) of Schedule I to the Act.\n\nThe Company paid Rs. 37,66,500/- as stamp duty under protest, stating that it would move the Board for a reference of the controversy to the High Court.\n\nThe Trust and Mortgage Deed was registered on_June 30, 1967, and the 'A' series debentures were issued the same day.\n\nThe Company applied to the Board of Revnue to state the case to the High Court. 'B' series debentures were issued on June 28, 1968. The case was stated on March 28, 1969 and was declded by the impugned decision of the High Court dated October 9, 1974.\n\nIt bas been argued by Mr. Ram Reddy for the appellant Company that the Guarantee Agreement was the principal and primary security, and the Deed of Trust and Mortgage was a collateral or auxiliary security and that the stamp duty on the Deed of Trust and Mortgage was payable in accordance with article 40(c). It has been urged that Guarantee Agreement was exempt from duty under sectiqn 3 of the Stamp Act and the debentures were exempt under article 27.\n\nThe controversy centre's round the question whether the Guarantee Agreement could be said to be principal or primary security ?\n\nMr. Ram Reddy has invited our attention to the following passage in Sergeant on Stamp Dudes and Companies Capital Duty, sixth edition, page 6,-\n\n\"Leading and principal object-With refereoce to the stamp duty upon instruments generally, it is a well settled rule of law that an instrument must be stamped for its leading and principal object, and the stamp covers everything accessory to that object.\n\nIn Limeer Asphalte Paving Co. v. l. R. C. (') it was stated :-\n\n\"In order to determine whether any, and if any, what stamp duty is chargeable upon an instrument the legal rule is that the real and true meaning of the instrument is to be ascertained; that the description of it given in the instrument itself by the parties is immaterial, even although they mey have believed that it_s effect and operation was to create a security mentioned in the Stamp Act, and they so declare.\"\n\nThis appears to be a correct statement of the law.\n\nWe have therefore to determine the real and true meaning of the Guarantee Agreement and to decide whether it could be said fo be the principal and primaty security.\n\nThe Loan and Note Purchase Agreement was executed on December 20, 1966, between the Company and the' first National City Bank and others.\n\nUnder that agreement, the Company was to authorise the creation and issuance of secured notes, series A and B, referred to above, and the notes were to be \"issued under and secured by the Deed of Trust and Mortgage between the Company and the first National City Bank\".\n\nIt was then stated in the Loan and Note Purchase Agreement as follows,-\n\n\"The Notes shall be dated, shall mature, shall bear interest, shall be payable, shall be secured and shall have scuh other terms and provisions as provided in the Mortgage and shall be guaranteed by the President of India Pursuant to the terms of a Guarantee Agreement (the \"Guarantee Agreement) in the form attached hereto as Exhibit 3.\"\n\nIt would thus appear that it was the Deed of Trust and Monge which was the security for the loan, although the loon was also guaranteed by the President in terms of the Guarantee Agreement.\n\nAs has been stated, the Guarantee Agreement was made between the President of India and the first National City Bank. It was clearly stated in that agreement that the Fir'st National City B!_!nk executed it \"As Trustee under a Deed of Trust and Mortgage dated as June 15, 1967.\" The Trust and Mortgage Deed was thus executed before\n\n(1) (1872) l.R. 7 Ex. 21.1.\n\n\\ t\n\nMADRAS REFINERIES v. c. c. REV. AUTH. (Shinghal, !.) 569\n\nthe execution_ of the Guarantee Agreement, even though both of them were executed on the same day, namely, June 15, 1967.\n\nIt is true that it has been stated in the Guarantee Agreement that the President of Jndia, . as the guarantor, unconditionally guaranteed\n\n\"as primary obligor and not as surety merely, the due and punctual payment from time to time\" of the principal as well as the interest etc. stated in the agreement.\n\nAnd it was for that purpose that the guarantor agreed to \"endorse upon each of the Notes at or before the issue and delivery thereof . by the Company its guaranty of the prompt payment of the principal, interest and premium thereof and of the other indebtedness.\" It is also true that as stated in paragraph 10 of the Guarantee Agreement, the obligations of the guarantor were \"absolute and unconditional under any and all circumst'ances, and shall not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof.\" We have also noticed the further stipulation that \"Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Mortgage or any of the other collateral or now or hereafter existing at law or in equity -0r by statute.\"\n\nMr. Ram Reddy has relied heavily on these averments in the Guarantee Agreement, but they cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or primary security for the loan according to the terms and conditions of the agreement between the parties. It was that document which constituted the First National City Bank as the Trustee, and enabled it to enter into the Guamntee Agreement with the President, and the President guaranteed the due performance of the obligations undertaken by the Company tl!ereunder.\n\nThe Deed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking 1JSSOciation incorporated and existing under te laws of United States of America, stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to finance such construction and to issue its notes therefor and to \"mortgage and charge its properties hereinafter described to secure the payment of such notes\" it executed the Deed of Trust and Mortgage as security in accordance witl1 the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder.\n\nThe Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a \"collateral agreement\".\n\nThe parties in fact clearly\n\nA stated in Article I, section 1.01 of the Deed of Trust and Mortgage \"':>. • as follows,-\n\n\"Collateral Agreements :\n\nThe term \"Collateral Agreements:' shall mean the Guarantee Agreement and the Undertaking, hereinfater defined.\"\n\nIt was therefore specifically agreed between the parties that the DeecE of Trust and Mortgage was not a collateral agreement.\n\nIn all these fucts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or pfimary security.\n\nAs was stated in Article 9 of that document, that security became enforceable in case of any or more \"events of default\", and it cannot be said that merely bemuse the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed the due and punctual payment of principal and interest etc. \"as primary obligor and not as surety merely\" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call for interference. Mr. Ram Reddy relied on some decisions to support his argnmt<nt that the Guarantee Agreement was the security for the loan and was the principal or the primary document, but those cases were decided on different facts and have no real bearing on the controversy before us.\n\nThe Guarantee Agreement was executed for and on behalf of the president by his Authorised Representative, and no stamp duty was chargeable for it by virtue of the proviso to section 3 of the Act. That in fact apperu:s to be the reason why counsel for the appellant strenously argued that we should hold it to be the principal instrument, for he has next argued that the case falls within the purview of section 4(1) of the Act and the \"Principal instrument\" only would be chargeable with the duty prescribed in Schedule I, and deed of any trust and mortgage would be chargeable with a duty of Rs. 4.50 p, instead of the duty prescribed for it in that Schedule.\n\nWe find however that there is no merit in this argument also.\n\nSub-section (1) of section 4 of the Act reads as follows,-\n\n\"4. Several instruments used in single transaction of sale, mortgage or settlement.-( 1) Where, in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of four rupees fifty naye paise instead of the duty (if iany) prescribed for it in that Schedule.\"\n\n\\ •\n\nMA!l!Vr.S 1.1.BFINBRIES V. C. C. REV. AUTH. (Shinthal, J.) 571\n\nIt is nobody's case that the Guarantee Agreement was an instrument _ of sale, for it did not transfer the ownership of anything in exchange for a price paid or promised or part-paid and part-promised. It was also not an instrument of mortgage because it is no boly's case that there was any transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan or an existing or a furture debt or the performance of an engagement which could give rise to a pecuniary liability.\n\nThe expression \"settlement\" has been defined in clause\n\n(~4) of section 2 of the Act as follows:-\n\n\"Settlement\" means any non-testamentary disposition in writing, of movable or immovable property made-\n\n(a) in cons'ideration of marriage,\n\n(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or\n\n( c) for any religious or charitable purpose;\n\nand includes an agreement in writing to make such a disposition and where any such disposition - has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition).\"\n\nThe term \"disposition\" has been defined in Strouds Judicial Dictionary as a devise \"intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law\" and \"includes transfer and charge of property\".\n\nAs the Guarantee Agreement did . not have any such effect, it did not constitute a \"settlement\" also.\n\nThat document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub-ses:tion (J) of section 4 of the Act.\n\nIt was the Deed of Trust and Mortgage which was a \"Mortgage deed\" within the meaning of clause ( 17) of section 2 of the Act, and it was therefore clearly chargeable with stamp duty at the rate prescribed in article 40 (b) of Schedule I to the Act.\n\nWe have examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1 )' of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the \"other instrument\" within the meaning of that\n\nsub-section and was chargeable with a duty of Rs. 4.50 p. instead H of the duty prescribed for it in the Schedule.\n\nThis argument is also futile for we find that the secured Notes (Series A and B) were issued undor and were secured by the Deed of Trust and Mortgage. &\n\nsuch, the Notes were issued in consequence and on the security' of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortguge.\n\nAs the High Court has rightly answered both the questions, we find no force in this appeal and it is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n--·", "total_entities": 63, "entities": [{"text": "MADRAS REFINERIES LTD", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "MADRAS REFINERIES LTD", "offset_not_found": false}}, {"text": "CHIEF CONTROLLING REYE.NUB AUTHORITY, BOARD OF\n\nREVENUE, MADRAS", "label": "RESPONDENT", "start_char": 24, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS", "offset_not_found": false}}, {"text": "January 5, 1977", "label": "DATE", "start_char": 89, "end_char": 104, "source": "ner", "metadata": {"in_sentence": "CHIEF CONTROLLING REYE.NUB AUTHORITY, BOARD OF\n\nREVENUE, MADRAS\n\nJanuary 5, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 107, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 124, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Indian Stamp Act, 1899", "label": "STATUTE", "start_char": 160, "end_char": 182, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 2", "label": "PROVISION", "start_char": 1079, "end_char": 1088, "source": "regex", "metadata": {"linked_statute_text": "Indian Stamp Act, 1899", "statute": "Indian Stamp Act, 1899"}}, {"text": "India", "label": "GPE", "start_char": 1589, "end_char": 1594, "source": "ner", "metadata": {"in_sentence": "It was also agreed that the Notes shall be secured and shall have the other terms and conditions provided in the agreement and shall be guaranteed by the President of India pursuant to the terms of the Guarantee Agreement."}}, {"text": "President of India", "label": "RESPONDENT", "start_char": 1685, "end_char": 1703, "source": "ner", "metadata": {"in_sentence": "The Guarantee Agreement states that the President of India, as the guarantor, unconditionally guaranteed as primary obligor and not as surety merely, the due and punctual payment E from time to time of the principal as well as interest stated m the Agreement.", "canonical_name": "President of India"}}, {"text": "Art. 40", "label": "PROVISION", "start_char": 2665, "end_char": 2672, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to the Act", "label": "STATUTE", "start_char": 2680, "end_char": 2701, "source": "regex", "metadata": {}}, {"text": "Art. 40", "label": "PROVISION", "start_char": 2951, "end_char": 2958, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3024, "end_char": 3028, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}, {"text": "Art. 27", "label": "PROVISION", "start_char": 3050, "end_char": 3057, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}, {"text": "Guarantee Agreement", "label": "RESPONDENT", "start_char": 4126, "end_char": 4145, "source": "ner", "metadata": {"in_sentence": "570 A-BJ\n\n(5) The Guarantee Agreement was not an instrument of sale, mortgage or settlement and did not fall within the purview of s. 4 (1) of the Act."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 4239, "end_char": 4243, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Reddy", "label": "LAWYER", "start_char": 4794, "end_char": 4803, "source": "ner", "metadata": {"in_sentence": "4 of 1968)\n\nP. Ram Reddy, C. Ramakrishna and A. V. V. Nair, for the Appellant.", "canonical_name": "Ram Reddy"}}, {"text": "C. Ramakrishna", "label": "OTHER_PERSON", "start_char": 4805, "end_char": 4819, "source": "ner", "metadata": {"in_sentence": "4 of 1968)\n\nP. Ram Reddy, C. Ramakrishna and A. V. V. Nair, for the Appellant."}}, {"text": "A. V. V. Nair", "label": "LAWYER", "start_char": 4824, "end_char": 4837, "source": "ner", "metadata": {"in_sentence": "4 of 1968)\n\nP. Ram Reddy, C. Ramakrishna and A. V. V. Nair, for the Appellant."}}, {"text": "V. P. Raman", "label": "LAWYER", "start_char": 4859, "end_char": 4870, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, A. V. Rangam and Miss A. Subhashini, f()[ the Respondent."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4872, "end_char": 4884, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, A. V. Rangam and Miss A. Subhashini, f()[ the Respondent."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 4894, "end_char": 4907, "source": "ner", "metadata": {"in_sentence": "V. P. Raman, A. V. Rangam and Miss A. Subhashini, f()[ the Respondent."}}, {"text": "SmNGHAL", "label": "JUDGE", "start_char": 4975, "end_char": 4982, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSmNGHAL J .-This appeal by speciru leave arises out of the .decision of the Madras High Court dated October 9, 1974, on a reference by the Chief Controlling Revenue-authority under section 57 of the Indian Stamp Act, 1899, hereinafter referred to as the Act."}}, {"text": "section 57", "label": "PROVISION", "start_char": 5156, "end_char": 5166, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Stamp Act, 1899", "label": "STATUTE", "start_char": 5174, "end_char": 5196, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Board of Revenue, Madras", "label": "ORG", "start_char": 5239, "end_char": 5263, "source": "ner", "metadata": {"in_sentence": "The Board of Revenue, Madras, which was the Chief Controlling Revenue-authority, initially stated the C'aSe raising the following questions for decision,-\n\n(a)\n\n(b)\n\nWhether the decision of the Board of Revenue that the\n\ninstrument relating to the Deed of Trust and Mortgage would attrac• the levy of a Stamp Duty as laid down in Article 40(b) oi Schedule I of the Indian Stamp Act and that the debentures would be exempted from the levy of stamp duty is correct or not; and\n\nWhetheT the claim of the Respondent herein that the stamp duty is payable on the debenture under Article 27(a) and on the Deed of Trust and Mortgage under Article 40(c) is tenable or not?"}}, {"text": "Article 40(b)", "label": "PROVISION", "start_char": 5565, "end_char": 5578, "source": "regex", "metadata": {"linked_statute_text": "the Indian Stamp Act, 1899", "statute": "the Indian Stamp Act, 1899"}}, {"text": "Schedule I of the Indian Stamp Act", "label": "STATUTE", "start_char": 5582, "end_char": 5616, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 27(a)", "label": "PROVISION", "start_char": 5808, "end_char": 5821, "source": "regex", "metadata": {"linked_statute_text": "Schedule I of the Indian Stamp Act", "statute": "Schedule I of the Indian Stamp Act"}}, {"text": "Article 40(c)", "label": "PROVISION", "start_char": 5866, "end_char": 5879, "source": "regex", "metadata": {"linked_statute_text": "Schedule I of the Indian Stamp Act", "statute": "Schedule I of the Indian Stamp Act"}}, {"text": "Madras Refineries Limited", "label": "ORG", "start_char": 6245, "end_char": 6270, "source": "ner", "metadata": {"in_sentence": "567\n\nfavour of the Revenue and the second question against the Madras Refineries Limited, hereinafter referred 1x> as the Company."}}, {"text": "Company was incorporated under the Indian Companies Act, 1956", "label": "STATUTE", "start_char": 6469, "end_char": 6530, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "First National City Bank", "label": "ORG", "start_char": 6661, "end_char": 6685, "source": "ner", "metadata": {"in_sentence": "An agreement known as the Loan and Note Purchase Agreement was executed between the Company and the First National City Bank and six others on December 20, 1966, by which the Company agreed to authorise the creation and issuance of $ 14,880,000 (U.S.) principal amount of its 5% secured notes Series 'A', and $ 7,440,300 (U.S.) principal amount of its 5f% secured notes Series 'S', 'alld the sale of, or the borrowing to be evidenced by such Notes in accordance with the terms and provisions of the agreement."}}, {"text": "December 20, 1966", "label": "DATE", "start_char": 6704, "end_char": 6721, "source": "ner", "metadata": {"in_sentence": "An agreement known as the Loan and Note Purchase Agreement was executed between the Company and the First National City Bank and six others on December 20, 1966, by which the Company agreed to authorise the creation and issuance of $ 14,880,000 (U.S.) principal amount of its 5% secured notes Series 'A', and $ 7,440,300 (U.S.) principal amount of its 5f% secured notes Series 'S', 'alld the sale of, or the borrowing to be evidenced by such Notes in accordance with the terms and provisions of the agreement."}}, {"text": "June 15, 1967", "label": "DATE", "start_char": 7781, "end_char": 7794, "source": "ner", "metadata": {"in_sentence": "The Deed of Trust and Mortgage and the Guarantee Agreement were executed between the President and the First National City Bank (as Tmstee) on June 15, 1967."}}, {"text": "section 31", "label": "PROVISION", "start_char": 7867, "end_char": 7877, "source": "regex", "metadata": {"statute": null}}, {"text": "June 28, 1967", "label": "DATE", "start_char": 8067, "end_char": 8080, "source": "ner", "metadata": {"in_sentence": "The Board decided on June 28, 1967 that the duty W'as chargeable on the Trust and Mortgage Deed under Article 40(b) of Schedule I to the Act."}}, {"text": "Article 40(b)", "label": "PROVISION", "start_char": 8148, "end_char": 8161, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to the Act", "label": "STATUTE", "start_char": 8165, "end_char": 8186, "source": "regex", "metadata": {}}, {"text": "30, 1967", "label": "DATE", "start_char": 8394, "end_char": 8402, "source": "ner", "metadata": {"in_sentence": "The Trust and Mortgage Deed was registered on_June 30, 1967, and the 'A' series debentures were issued the same day."}}, {"text": "June 28, 1968", "label": "DATE", "start_char": 8578, "end_char": 8591, "source": "ner", "metadata": {"in_sentence": "B' series debentures were issued on June 28, 1968."}}, {"text": "March 28, 1969", "label": "DATE", "start_char": 8616, "end_char": 8630, "source": "ner", "metadata": {"in_sentence": "The case was stated on March 28, 1969 and was declded by the impugned decision of the High Court dated October 9, 1974."}}, {"text": "October 9, 1974", "label": "DATE", "start_char": 8696, "end_char": 8711, "source": "ner", "metadata": {"in_sentence": "The case was stated on March 28, 1969 and was declded by the impugned decision of the High Court dated October 9, 1974."}}, {"text": "Ram Reddy", "label": "LAWYER", "start_char": 8740, "end_char": 8749, "source": "ner", "metadata": {"in_sentence": "It bas been argued by Mr. Ram Reddy for the appellant Company that the Guarantee Agreement was the principal and primary security, and the Deed of Trust and Mortgage was a collateral or auxiliary security and that the stamp duty on the Deed of Trust and Mortgage was payable in accordance with article 40(c).", "canonical_name": "Ram Reddy"}}, {"text": "article 40(c)", "label": "PROVISION", "start_char": 9008, "end_char": 9021, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}, {"text": "article 27", "label": "PROVISION", "start_char": 9157, "end_char": 9167, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}, {"text": "President of Jndia", "label": "RESPONDENT", "start_char": 12033, "end_char": 12051, "source": "ner", "metadata": {"in_sentence": "It is true that it has been stated in the Guarantee Agreement that the President of Jndia, .", "canonical_name": "President of India"}}, {"text": "United States of America", "label": "GPE", "start_char": 13959, "end_char": 13983, "source": "ner", "metadata": {"in_sentence": "The Deed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking 1JSSOciation incorporated and existing under te laws of United States of America, stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to finance such construction and to issue its notes therefor and to \"mortgage and charge its properties hereinafter described to secure the payment of such notes\" it executed the Deed of Trust and Mortgage as security in accordance witl1 the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder."}}, {"text": "Article 2", "label": "PROVISION", "start_char": 14412, "end_char": 14421, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 14951, "end_char": 14960, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 9", "label": "PROVISION", "start_char": 15444, "end_char": 15453, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 16578, "end_char": 16587, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 16807, "end_char": 16819, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 16915, "end_char": 16925, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 17148, "end_char": 17157, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 17476, "end_char": 17486, "source": "regex", "metadata": {"statute": null}}, {"text": "S 1", "label": "PROVISION", "start_char": 17711, "end_char": 17714, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 18386, "end_char": 18395, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 19522, "end_char": 19531, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 19649, "end_char": 19658, "source": "regex", "metadata": {"statute": null}}, {"text": "article 40", "label": "PROVISION", "start_char": 19753, "end_char": 19763, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I to the Act", "label": "STATUTE", "start_char": 19771, "end_char": 19792, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 19962, "end_char": 19971, "source": "regex", "metadata": {"linked_statute_text": "Schedule I to the Act", "statute": "Schedule I to the Act"}}]}
{"document_id": "1977_2_573_586_EN", "year": 1977, "text": "JAGMAL SINGH YADA V\n\n1'.\n\nM. RAMA YY A AND ORS.\n\nJanuary 6, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND\n\nS. MURTAZA FAZAL ALI, JJ.]\n\nService maJter-Central Engineering Service, Class II (Recruitment Rules) 1954--Rule 4(c)-Scope of. No determination of quota between direct recruits and promotees 1nade by Government-Direct recruits confirmed earlier than promotees who were seniors-Confirmation if valid-Departmental Promotion Committee presided over by Member of U.P.S.C.-lf amounts to consultation with UPSC.\n\nRule 3 of the Central Engineering Service Class II (Recruitment Rules) 1954 provides for the recruitment to the service by four methods; (a) by competitive examination; (b) by direct appointment, otherwise than by competitive examination; ( c) by\" promotio.n~ and ( d) by transfer. Rule 4 ( c) provides that the method or methods of recruitment and the number of candidates to be recruited by each meth0d shall be determined by the Governmellt. Rule 24 states that recruitment by promotion shall be made by selection on the basis of merit from among permanent Section Officers employed in the Civil Engineering side of the Central Public Works Department.\n\nThe writ petitioners before the High Court, who were initially appointed as Section Officers in the Subordinate Engineering Service Class\n\nIII (Non- Gazetted), were subsequently appointed as Assistant Engineers in the Central Engineering Class II (Gazetted) between 1958 and 1963 by way of selection as provided under the rules.\n\nBetween the years 1961 and 1967, the Government appointed Assistant Engineers some on the basis of a competitive exanrination held by the Union Public Service Commission and others without the competitive examination On various dates some of the direct recruits were confirmed by the Government before the promotees were confirmed.\n\nIn a petition under Art. 226 of the Constitution the writ petitioners claimed that though they were appointed as temporary Assistant Engineers much earlier than the direct recruits, the latter were confirmed earlier than themselves.\n\nThe High Court partly allowed their writ petition holding that there was no determination of any quota by the Government, since the direct recruits\n\nobtained preference over the writ petitioners in the matter of confirmation and F sniority it directed the Government to adjust the inter-8'1 seniority of such of the petitioners as might be _confirmed after a consideration of their cases in accordance with law.\n\nln 1!ppeal to this Court, the appellant, who was one of the direct recruits, contended that the recruitment of the writ petitioners was outside the rules particularly because the recruitment was not made \"after consultation with the U.P.S.C.\" as required by r. 23(1).\n\nDismissing the appeal,\n\nHELD : ( 1) The writ petitioners are entitled to be considered for confirmation in the service in Class II. Since there was no quota rule on the basis of which confirmation had been made and seniority had been fixed, the High Court was right in holding that the Government should consider the case of the\n\npetitioners for confirmation and seniority in accordance with law.\n\n[577 A-B]\n\n(2) The appointment of the writ petitioners was in accordance with r. 23 read with r. 3 (b) of the Rules. Although rule 23 ( 1) provides recruitment by selection after comultation with the U.P.S.C. the particular Departmental Promotio.ri Committee was presided over by a member from the U.P.S.C. The\n\n-~--~\n\nrelevant instructions of the ome Ministry stated that recommendations madct by the Departmental Promotion Committees on which the Commission was\n\nreprese_n~Q!, Bhould be treated as . recommedations having the approval of the Cosn and that the convention regarding acceptance of the advice of the Comnuss1on would apply.\n\n(580 B-C, D-E)\n\n(3) There is nothing to show that there had been determination of the quo~ by the Government of India under r. 4(c). The Rules did not prescribe therem any quota for recrmtment through the four methods specified in r. 3.\n\nUnde! r. 4(b) o method other than the one specified in r. 3 is permissible for recrmtment.\n\nW1h regard to the sharing of recruitment through the dift'erent method_s, I?ower 1s reserved to the Government under r. 4 ( c) to make certain. determmations. The determination under r. 4 ( c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by that Ministry\n\nuder_ the Rules of Business under Art. 77 (3) of the Constitution, the deterlDlnation would be of the Government of India. In the instant case there has been on adherence to the quota rule; on the contrary there has been a flagrant violation of the nile. [583 E-G, 584 DJ\n\n(4) (a) Even for executive instructions, the condition precedent is an appropriate decision by the competent authority and the High Court has not committed any error of law in holding that there was no determination by the Government under r. 4 ( c) to call for interference under Art. 13 6 of the Constitution. [585 B-C]\n\n(b) The factum of determination of seniority was a live issue between the parties in the High Court and there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the parties. [584 H, 585 A]\n\nThe Court pointed out that persons entering Government service have the right to lffiow where they stand with regard to their conditions of service and foture promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, it is a socry plight to find that officers in the same service fight over the years, in courts, having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment according to rules. and they have put in a number of years in the service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the service are abolished, appointments to the service are transitory or fortuitous or incumbent are found unsuitable for absorption. The history of this service is that teml?orary posts were first created and then after some years they were converted mto permanet posts.\n\nThe Government. therefnr0 r\"nnnt merely be an on-looker where 1t could rightly claim to be a legitimate arbiter on its own authority and havini? proper regard to :ill just claims. [585 F-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1260/73\n\nG (From the Judgment and Order dt. 5.11.71 of the Delhi High Court in C.W.P. No. 238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0. C. Mathur, for Responents Nos. 3 & 4\n\nG. D. Gupta, for Respondent No. 8.\n\nGobind Das and Girish Chandra for Rei; pondent No. 13\n\n..... . r\n\nS. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos. 55, 64, 75, 80 & 89.\n\nThe Judgment of the Court was delivered by\n\nGosWAMI, J.-This appeal by special leave is directed against the judgment of tho Full Bench of the High Court of Delhi whereby the\n\nwrit petition of the first twelve respondents was partly allowed.\n\nThe B appellant, _who jointed service in the cadre of Assistant Engineers in the Central Engineering Service, Class II (Gazetted), w~ respondent No. 51 in the High Court.\n\nOther respondents in the High Court in similar position as that of the appellant have been impleaded here as respondents (16 to 110) and they are supporting the appellant through their counsel Mr. S. T. Destai.\n\nFor the sake of convenience the appellant and the respondents 16 to 110 will be described herein C below as direct recruits in the Class II Service.\n\nThe Union of India, Engineer-in-Chief, C.P.W.D., and the Union Public Service Commi~\n\nssion are respectively respondent Nos. 13, 14 and 15 and are representetl by Mr. Gobind Das.\n\nThe respondents 1 to 12 (hereinafter to be referred to as the respondents) preferred an application in the High Court under Article D 226 of the Constitution on 16th February, 1970, praying for certain reliefs which the High Court has summarised under the following four heads\n\n(1) That the confirmation of the direct recruits should be held as illegal.\n\n(2) That the respondents and other persons who are similarly situated like them and who had joined the service earlier should be directed to be confirmed first according to the dates of their joining the service as Assistant Engineers after giving weightage in preference to the direct recruits.\n\n(3) That the appointment of 38 specified direct recruits should be held as illegal.\n\n( 4) That the respondents ( 13 to 15 herein) should be ~\n\ndirected to reTise the clasfied list published in 1968.\n\nThe High Court has also noted that the respondents did not seek to distrub the appointments of the direct recruits already made and that their main contention was that they were entitled to be confirmed before those of the direct recruits who were appointed subsequent to them.\n\nThis appeal was heard by us in two stages.\n\nAfter the first stage of the hearing the parties were given some time to settle the matter by evolving a reasonable formula to satisfy the legitimacy of their mutual claims.\n\nIt, however, appeared that they could not compose their differences and the appeal wa~, therefore, finalJv l:teard and concluded.\n\nWe may now briefly give the history of the litigation.\n\nThe respondents (who are the twelve writ petitioners in the-High\n\nCout~ are e!ther. graduates in Civil nginring or possess similar reqms1te quahficat10ns, namely, an Engmeenng Degree or an equivatent thcrof. They were all initially appointed on different dates as .emporary Section Officers in the Central Public Works Department (hereinafter to be referred to as the C.P.W.D.) in the subordinate Engineering Service, Class III (Non-gazetted).\n\nThey were subsequently appointed on various dates between 18th October, 1958 and 8th January, 1963, \"to offtciate temporarily and until further orders\" as Assistant Engineers in the Central Engineering Service, Class II (Gazetted) (briefly the Service).\n\nThe appellant and the respondents 16 to 110 are what is described as direct recruits to the Service. Each of the direct recruits possesses a Degree in Engineering or an equivalent thereof.\n\nFiftyeight of them were directly recruited as temporary Assistant Engineers in the Central Engineering, Service Class II (Gazetted) on different dates between 12th May, 1961 and 13th December, 1967, on the result of a competitive examination held by / the Union Public Service Commission (UPSC).\n\nThe remaining thirtyeight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers in the Service on different dates between 2nd November, 1964 and 7th November, 1967, but without any competitive exmination.\n\nBy a Notification dated 13th June, 1967, excepting seven direct recruite (namely, respondents 11, 17, 29 and 31 to 34 in the High Court) the remaining respondents (respondents 4 to 37 in the High Court) were confirmed with effect from their respective dates of recruitment.\n\nThe said confirmations were also shown in a 'Classified list of Class II Engineering Gazetted Establishment ( CiV'il) of the CPWD' published in 1968.\n\nBy another Notification, of 1st May, 1968, direct recruits (being respondents 17, 33, 34, 38, 64 and 74 in the High Court) were also confirmed.\n\nSimilarly by a Notification dated, 30th April 1971, other direct recruits (respondents 31, 32, 39, 43, 46, 50, 52 to 57, 60, 61, 63, •68, 69, 75, 76, 79, 82, 92 and 96 in the High Court) were confirmed.\n\nThe grievance of the respondents in the High Court was that although they were appointed as temporary Assistant Engineers much earlier than the direct recruits the latter were confirmed ignoring their claims.\n\nTheir representations to the Government through theit' association having failed they approached the High Court.\n\nThe respondents (13 to 15) denied their claim by means of a counteraffidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D.\n\nOne of the direct recruits, Shri Durgadas Kama, also filed a counteraffidavit opposing the claim of the respondents in the High Court.\n\nBy consent certain documents were produced by the Government and after inspection relevant extracts from the files were submitted to the Court by respective parties.\n\nAlthough serveral contentions were urged before the High Court, some of them pertaining to Articles 14 and 16 of the Constitution,\n\nthe High' Court accepted the main contention of the writ petitioners A that there was no determination of any quota by the Government since on the basis of the said quota the direct recruits obtained preference in the matter of confirmation and seniority.\n\nThe High Court thus partly allowed the application and dire'cted the respondents (respondents 1 to 3 in the High Court) \"to consider the petitioners (respondents herein) for confirmation as Assistant Engineers and to adjust the inter se seniority of such of the petitioners as might be confirmed B after consideration by the respondents in accordance with law\".\n\n. It is clear that if the High Court is riglilt that there was no determination by the Government under rule 4 ( c) of the Recruitment Rules, to which we will refer presently, apportioning quota amongst the officers recruited through different sources it will not be necessary to go into the other questions raised by Mrs. Pappu for the appellant.\n\nC If we find that the High Court is wrong in its conclusion on this main point, we will have to remand the matter to the High 'Court for decision with regard to the other submissions which ha:d not been dealt with by it.\n\nWe will, therefore, take the first point first.\n\nMrs. Pappu submits as follows :-\n\nFirst, in the absenc.e of a plea in the writ petition that the Home Ministry's approval is necessary the High Court exceeded its jurisdiction in going behind the determination of the quota made under rule 4(c), particularly in the absence of any special modi;! of determination prescribed under the Rules.\n\nSecond, she submits that the High Court failed to notice that it was open to prescribe quota by way of executive instructions in the absence of any rules in this behalf. Third, she submits that even assuming the High Court could enter into such an enquiry there is ample evidence on record to show that a determination has been made under rule 4 ( c). '\n\nThe persons with whom we are concerned in this appeal are governed by the Central Engineering Service, Class II, Recruitment Rules (briefly the Rules) which were published on 21st May, 1954.\n\nThere are six Parts in these Rules.\n\nPart I (General) provides the definitions.\n\nPart II deals with the' methods of recrnitment.\n\nRule 3 with which this Part opens provides as follows :-\n\n\"3. Recruitment to the Service shall be made by any of the following methods :-\n\n(a) By competitive examination in India in accordance with Part III of these Rules.\n\n(b) By direct appointment in accordance with Part IV of these Rules of persons selected in India otherwise than by competitive examination.\n\n(c) By promotion in accordance with Part V of these Rules.\n\n(d) By transfer in accordance with Part VI of these Rules.\"\n\nRules 4 and 5 may also be noted :\n\n\"4. (a) All appointments to the Service or to posts borne\n\n/ upon the cadre of the Service shall be made by the Government.\n\n(b) No appointment shall be made to the Service or to any post borne upon the cadre of the Service by any method not specified in Rule 3.\n\n(c) Subject to the provisions of sub-rule (b), the method or methods of recruitment to be employed for the purpose of filling any particular vacancies in the ' Service or such vacancies therein as may be required to the filled during any particular period and the number of candidates to be recruited by each method sh!!ll be determined by the Government.\n\n5. Appointments to the Service made otherwise than by promotion will be subiect to orders issued from time to time by the Ministry of Home Affairs regarding special representation in the Services for specific , D sections of the people.\"\n\nPart III provides for recruitment by competitive examination which is the method provided in rule 3(a).\n\nWe are not concerned with the details in this Part except to note that the examination is conducted by the UPSC and the requisite qualifications and age restrictions and relaxation are provided for in this Part.\n\nWe may also note that Rule 21 of this Part provides that the selected candidates shall be appointed as Assistant Engineers on probation for two years and on the completion of the period of probation, ll' considered fit for permanent appointment, they will be confirmed in their appointments. There is a provision for extending the period of probation under rule 21 ( c) .\n\nWe need not notice other details in this Part.\n\nPart IV deals with recruitment by selection.\n\nRule 23 with which this Part opens provides as follows :\n\n\"23. (1) Recruitment by selection shall be made from among Temporary Engineers and Temporary Section Officers employed on the Civil, Engineering side of the Central Public Works Department after consultation with t_he Commission :\n\nProvided that it shall not be necessary to consult the Commission, in the case of any person, if the Commission were consulted in connection with his temporary appointment to the Service.\n\n(2) No person shall be eligible for selection under subrule (1) unless he would, but for age, be qualilled for admis'sion to the Service under Part III of these rules, and his age at the time of appointment to the Service is not more than 40 years.\n\n! '\n\n(3) Merit shall be the primary consideration in determining a person's fitness for selection under this rule and no officer shall have any claim to appointment . under this rule as of right.\"\n\nPart V deals with recruitment by promotion and contains a solitary rule, namely, rule 24, which reads as follows :-\n\n\"24. Recruitment by promotion shall be made by selection on the basis of merit from among permanent Section Officers employed in the Civil Engineering side of the Central Public Works Department.\"\n\nPart VI deals with recruitment by transfer of an officer in Government service and there is a solitary rule, namely, rule 25, which takes care of this type of recruitment by transfer.\n\nWe are not concerned with this rule in this appeal. ·\n\nFrom a perusal of the Rules it is clear that there are four methods of recruitment, namely-\n\n( 1) recruitment by competitive examination (Part III) ; D\n\n(2) by direct appointment otherwise than by competitive examination (Part IV) ;\n\n(3) by promotion (Part V); and\n\n( 4) by transfer (Part VI).\n\nIt is also dear under rule 4(b) that no appointment shall be made to this Service or to any post borne on the cadre of this Service by any method other than the above mentioned four methods.\n\nThe direct recruits belong to two categories of officers.\n\nFiftyeight persons were recruited under rule 3 (a) by competitive examination.\n\nThe remaining thirtyeight persons were also directly recruited as temporary Assistant Engineers but without any competitive examination and, according to the respondents, \"on an ad-hoc basis\".\n\nSo far as the respondents are concerned they claim to be recruited under\n\nPart IV, namely, recruitment by selection which is one of the four methods provided for under rule 3 (b).\n\nOn the other hand according tu Mrs. Pappu the respondents are more temporary promotees to temporary vacancies in Class II Service and they are a class differe11t from the direct recruits who are not similarly situated with them.\n\nWe have, therefore, first to consider this submission of Mrs. Pappu.\n\nAs stated earlier, there are four methods of recruitment. Recruitment by promotion is provided under Part V and that is made by selection on the basis of merit from amongst permanent Section Officers. The particular recruitment of the respondents, therefore, cannot be under Part V.\n\nIt is common ground that the respondents at the material time when they were appointed as temporary Assistant Engineers were only temporary Section Officers in Class III. It is also admitted that\n\n3-112SCI/77\n\nall these. rsponden!§ have. requisite qualifications which are necessary for adm1ss1on to the Service under Part III and they are also within the age limit laid down under rule 23 ( 2).\n\nBesides recruitment when ade is only on merit nder rule 23(3). Being faed with this position, Mrs. Pappu submits that their recruitment is outside the Rules particularly because rule 23 ( 1) provides for recruitment by selection \"after consultation with the UPSC\".\n\nShe submits that they were selected by the Departmental Promotion Committee which is not the same thing as the UPSC mentioned in rule 22(1).\n\nWe are., , however, unable to accept this submission.\n\nIt is true that rule 23 ( 1) provides for recruitment by selection after consultation with the UPSC.\n\nThe particular Departmental Promotion Committee (DPC) was presided over by a member from the UPSC.\n\nThere is Home Ministry's O.M.\n\nNo. 33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 as follows :-\n\n\"Recommendations made by Departmental Promotion Committees on which the Commission is represented should be treated as recommendations haying the approval of the Commission, and the convention regarding acceptance of the advice of the Commission will apply.\"\n\nWe are, therefore, clearly of opinion that the appointments of the respondents are in accordance with rule 23 in Part IV read with rule 3(b) of Part II of the Rules.\n\nWe find that the above conclusion we have reached is supp_orted by the stand taken on behalf of the Goviernment in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Part IV.\n\nSince, however, there are no statutory rules for confirmation in service or seniority rules, it is submitted by Mrs. Pappu that under rule 4 ( c) of the Rules it is for the Government to determine the method or methods of recruitment to be applied for the purpose of filling any particular vacancy in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method.\n\nIt is in conformity with rule 4(c), says counsel, that the Government has fixed the proportions for filling vacancies in Class JI Service by different modes of recruitment.\n\nShe draws our attention to a letter of the Under Secretary to the Government of India, Ministry of works and Housing, dated 2nd October, 1954, which, as the Subject matter shows, contains the \"proposal to prescribe definite quotas for filling the posts of Assistant Engineer (Civil) and Assistant Engjneer (Electrical) in the C.E.S., Class II, and the C.E.E.S. Class II, re:specti\".ely bv different modes of recruitment.\" The proposal sets out in Part A thereof the quota for permanent vacancies as follows:-\n\n'\"A-Permanent Vacancies :\n\n(i) 50% by direct recruitment by competitive examina-·\n\ntion under Part HI of the Recruitment Rules for the Class II Service.\n\nl..f ·,,._\n\n(ii) 25% by promotion of permanent Section Officers under Part V of the Recruitment Rules.\n\n•Jiii) 25 % by permanent appointment of temporary Assistant Engineers recruited by ; competitive examination through the Union Public Service Commission, and by transfer under Part VI of the Recruitment Rules.\"\n\nPart B thereof fixes the quota for temporary vacancies as under-\n\n~B-Temporary Vacancies :\n\n. ,\n\n.(i) 50% by direct recruitment by competitive examination through the Union Public Service Commission and by transfer under Part VI of the Recruitment Rules .\n\n(ii} 50% by departmental promotion from amongst-\n\n(a) permanent Graduate Section Officers,\n\n(b) permanent non-Graduate Section Officers, and\n\n( c) temporary Graduate Section Officers, D\n\nfo accordance with the ratio \\Which may be fixed by the Departmental Promotion Committee at the time of making the selection.\n\nProvided that if at any given time, candidates who are successful at the Union Public Service Commissio9 competitive examination are not available in sufficient numbers for E filling 50% of the temporary vacancies that might be available, the residual vacancies may be filled temporarily by departmental promotion, subject to the condition that persons so promoted against such vacancies, shall be reverted later, if necessary, to make room for the candidates who may qualify at subsequent examinations to be held by the Commission, as and when they become available.\" F\n\nIt is pointed out that this proposal received approval of the UPSC as per its Jetter dated 7th September, 1955.\n\nMrs. Pappu draws Qur particular attention to the following paragraph in that letter :\n\n\"For recruitment to the posts in the Cenral Engineering Service, Class II, and the Central Electrical Engineering G Service Class II, the percentage quotas for various modes of recritment suggested by the Ministry vide their letter No .\n\nE-1/5(3) dated the 2nd October, 1954, have been approved by the Commission.\"\n\nOur attention is particularly drawn by the respondents to a letter -dated 7th November 1975, from the Deputy Secrety (Establish- H ment) to the Secretary UPSC and the subject of the letter is \"confirmation in the grades of Assistant Engineers Civil & E!ec. in the C.P.W.D.'' It is stated in tbat letter-\n\n\"Since these vacancies have occurred as a result of conver'- sion of posts from temporary to permanent and since the C.P.W.D. has a large number of officiating Assistant Engineers who have been promoted from the grade of Section Officer, it is considered that the officiating Assistant Engineers have a prior claim to these posts.\n\nThe Ministry of Home Affairs also share this 'view ........ \"\n\nThe last paragraph of this letter reads as under :-\n\n\"I am to request that the concurrence of the UPSC to the allotment of these vacancies on ad hoc basis to the officiating Assistant Engineers (Civil) & (Elec) and to their confirmation as proposed by the DPC at their meeting on 18.7.1955 may be communicated to this Ministry at an early date.\"\n\nAfter this our attention is drawn by the appellant to a document dated 5th March, 1962, on the \"subject : preparation of a combined seniority list for direct recruits and departmental promotees in the grade of Assistant Engineers C.P.W.D.\" It is .stated therein as D follows :-\n\n\"It was tentatively agreed that since the ratio of recruitment prescribed for direct recruitment through the UPSC and Departmental Promotion of Section Officers has not been adhered to, the date of confirmation should be the basis of determining the inter se seniority of direct recruits and the Departmental promotees.\n\nWhen the date of confirmation of direct recruit and a departmental promotee is, however, the same, the \\direct recruitment should rank senior to the departmental promotee.\n\nThe Chief Engineer, however, indicated certain practical difficulties in following the above principle and it was decided that further discussion should be held before the Ministry of Home Affairs would be able to give their definite views in the matter.\"\n\nMrs Poppu then draws our attention to paragraph 2 of this letter f'. which reads as under :-\n\n\"The ratio in respect of direct recruitment and departmental promotion was prescribed in September, 1955.\n\nWhenever confirmation thereafter was not made according to the prescribed ratio, approval of the U.P.S.C. was obtained to the relaxation of the quota.\"\n\nThe same paragraph continue1; to throw more light :\n\n\"Before giving their final views, the Ministry of Home Affairs desired to have a copy of the communications wherein the UPSC agreed to the relaxation of the quota. As further discussions in the matter will take place in the Ministry of Home Affairs within the next few days the copies of the relevant communications should be sent immediately\".\n\nMrs. Pappu finally draws our attention to the minutes of the meeting held in the Ministry of Home Affairs ion 16th June, 1962, to discuss the question of drawing up a combined seniority list of various categories of Assistant Engineers in the\n\nC.P.W.D.\n\nShe points out that the first paragraph in the minutes shows that \"according to the orders issued in 1955 recruitment to the grade of Assistant Engineers (Civil & Electrical) in the Central Public Works Department is to be made by the following modes,\" namely, permanent vacancies and temporary vacancies in such manner as was contained in the proposal dated 2nd October, 1954, which we have already extracted.\n\nShe then draws our attention that certain decisions were taken, as will appear from paragraph 4 of the minutes, with regard to the determination of the relevant seniority of direct recruits and departmental promotees: Mrs. Pappu submits that this is \\a follow-up action of the proposal which emanated from the Ministry df Works & Housing letter dated 2nd Oclober, 1954, :and which recei'.1ed the concurrence of the UPSC.\n\nShe submits that the minutes did mention quota and some decisions were taken about inter se seniority.\n\nShe submits that the position emanating from the minutes can only be reconciled on the basis that the quotas already fixed in 1955 had been the rule with regard to this Service.\n\nThe short question that arises for consideration is whether there bas been a determination by the Government under rule 4( c).\n\nIt is clear that 1954 Rules did not prescribe therein any quota for recruitment through the four methods specified under rule 3.\n\nOne thing, however, is clear that under rule 4(b) no other method is permissible for recruitment.\n\nIt is also clear that with regard to the sharing of recruitment through the different methods power is reserved\n\nto the Government under rule 4( c) to make certain determination.\n\nIt is subniitted by Mr. Gobind Das, appearing on behalf of the Union\n\nof India, that at the relevant time the Department of Personnel was in the Ministry of Home Affairs and it is that Ministry which was entrusted with the matters relating to recruitment and seniority.\n\nHe further submitted that the approval or sanction of the Home 'Ministry was mandatory for validity of any rule.\n\nIt is, therefore, clear that the determination under rule 4(c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by the Home Ministry under the Rules of Business under Article 77 ( 3) of the Constitution the determination would be of the Government of India.\n\nThere is nothing to show that there was any dtermination by the Home Ministry under rule 4(c). It is true that there was a proposal from the Ministry of Works & Housing to which concurrence .had been given by the UPSC.\n\nAfter that there has been no further progress of the matter and Mr. Go bind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry 'was given to any determination under rule 4(c).\n\nThe Under Secretary in the Ministry of Works & iHousing has filed H .an affidavit dated 16th December, 1976, with an annexure dated 14th\n\nA June, 1954, which shows that with reference to the proposal for quotas the reaction of Home Ministry was in the following terms :\n\n\"Prima facie, the proposal seems unobjectionable but this Minfstry would like to see again after the UPSC's views have been received.\"\n\nIt is perhaps because of this that Shri Swaran Singh the then Minister for Works & Housing also endorsed the Secretary's proposal which was in the following terms :\n\n\"The proposals are in order and may be approved.\n\nAfter U.P.S.C. have been consulted and given their concurrence, the case will have to be shown to the Home Ministry again who have asked to see these papers after the views of the U.P.S.C. have been obtained.\"\n\nThe Minister, Shri Swaran Singh's endorsement appears at the foot of this proposal on 24th September, 1954.\n\nSo far as the records go the matter rested as above and there has been admittedly no adherence to the quota rule, but on the other hand ther('., has been flgrant violation of the rule.\n\nAs a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot.\n\nThis was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under rule 4 ( c).\n\nIt is not possible .to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry.\n\nThere is nothing 'to show that these minutes received the approval of the Minister-in-charge.\n\nWe are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4 (c).\n\nWe have already held that respondents 1 to 12 were duly appointed under rule 23 ( 1) of Part IV read with rule 3 (b).\n\nThey are, there~ fore, entitled to be considered for confirmation in the Service in Class\n\nII.\n\nSince we )lave held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents ( 13 to 15) to consider the case of the respondents (1 to 12) for confirmation and seniority in accordance with law.\n\nAs the High Court has pointed out, the validity of the Jrecruitment of the thirtyeight direct recruits will, however, not be affected.\n\nWe are not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules.\n\nAfter a perusal of the pleadings and having regard to the stn~ taken by the partie~ before the High Court, we find that the subm1ss1on has no force.\n\nSmee the factum of determination of seniority was a live issue between the\n\ny \"\n\nparties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent.\n\nIt is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for foterference under Article 13 6 of the Constitution.\n\nWe also do not feel justified iin placing exaggerated importance C on the use of the words \"specified quota\" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai.\n\nWe are of opinion that such a reference to \"specified quota\" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works & Housing in the course of long correspondence between the several authorities.\n\nD , Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay.\n\nWe are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule E 4(c) had been struck down by the High Court.\n\nBefore parting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion.\n\nSince there is no impediment in the iway of the Govern- F ment to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair iplay to all concerned, it is a sorry sight to find that officers in the same Service fight over the yrs in courts having failed to get redress from the Government.\n\nWhen officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the G satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service.\n\nThe matter may be different when posts in the Service, are abolished, appointments to the Service are transitory or fortuitous or incumbents are fqund unsuitable for absorption.\n\nThe history of this Service is that temporary posts are first created and then after some years they are converted into H permanent posts.\n\nThe Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims.\n\nalso cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to' time for reasons not always manifest.\n\nAs found above, the submissions of the appellant are devoid of force.\n\nIn the result the appeal fails and is dismissed.\n\nWe will, however, make no order as to costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 66, "entities": [{"text": "JAGMAL SINGH YADA V", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "JAGMAL SINGH YADA V", "offset_not_found": false}}, {"text": "M. RAMA YY A AND ORS", "label": "RESPONDENT", "start_char": 26, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "M. RAMAYYA AND ORS", "offset_not_found": false}}, {"text": "January 6, 1977", "label": "DATE", "start_char": 49, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "January 6, 1977\n\n[Y. V. CHANDRACHUD, P. K. GOSWAMI AND\n\nS. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 67, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 86, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "UPSC", "label": "ORG", "start_char": 505, "end_char": 509, "source": "ner", "metadata": {"in_sentence": "No determination of quota between direct recruits and promotees 1nade by Government-Direct recruits confirmed earlier than promotees who were seniors-Confirmation if valid-Departmental Promotion Committee presided over by Member of U.P.S.C.-lf amounts to consultation with UPSC."}}, {"text": "Union Public Service Commission", "label": "ORG", "start_char": 1637, "end_char": 1668, "source": "ner", "metadata": {"in_sentence": "Between the years 1961 and 1967, the Government appointed Assistant Engineers some on the basis of a competitive exanrination held by the Union Public Service Commission and others without the competitive examination On various dates some of the direct recruits were confirmed by the Government before the promotees were confirmed."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1852, "end_char": 1860, "source": "regex", "metadata": {"statute": null}}, {"text": "U.P.S.C.", "label": "ORG", "start_char": 2712, "end_char": 2720, "source": "ner", "metadata": {"in_sentence": "ln 1!ppeal to this Court, the appellant, who was one of the direct recruits, contended that the recruitment of the writ petitioners was outside the rules particularly because the recruitment was not made \"after consultation with the U.P.S.C.\" as required by r. 23(1)."}}, {"text": "Government of India", "label": "ORG", "start_char": 3884, "end_char": 3903, "source": "ner", "metadata": {"in_sentence": "(580 B-C, D-E)\n\n(3) There is nothing to show that there had been determination of the quo~ by the Government of India under r. 4(c)."}}, {"text": "Ministry of Home Affairs", "label": "ORG", "start_char": 4324, "end_char": 4348, "source": "ner", "metadata": {"in_sentence": "The determination under r. 4 ( c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by that Ministry\n\nuder_ the Rules of Business under Art."}}, {"text": "Art. 77", "label": "PROVISION", "start_char": 4451, "end_char": 4458, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 4971, "end_char": 4978, "source": "regex", "metadata": {"statute": null}}, {"text": "Shyamala Pappu", "label": "LAWYER", "start_char": 6733, "end_char": 6747, "source": "ner", "metadata": {"in_sentence": "238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0."}}, {"text": "Ashok Kumar Grover", "label": "LAWYER", "start_char": 6752, "end_char": 6770, "source": "ner", "metadata": {"in_sentence": "238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0."}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 6790, "end_char": 6804, "source": "ner", "metadata": {"in_sentence": "238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0."}}, {"text": "D. N. Mishra", "label": "LAWYER", "start_char": 6806, "end_char": 6818, "source": "ner", "metadata": {"in_sentence": "238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 6823, "end_char": 6835, "source": "ner", "metadata": {"in_sentence": "238 of 1970)\n\nMrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant\n\nM. C. Bhandare, D. N. Mishra and 0."}}, {"text": "G. D. Gupta", "label": "LAWYER", "start_char": 6864, "end_char": 6875, "source": "ner", "metadata": {"in_sentence": "3 & 4\n\nG. D. Gupta, for Respondent No."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 6900, "end_char": 6910, "source": "ner", "metadata": {"in_sentence": "Gobind Das and Girish Chandra for Rei; pondent No.", "canonical_name": "Go bind Das"}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 6915, "end_char": 6929, "source": "ner", "metadata": {"in_sentence": "Gobind Das and Girish Chandra for Rei; pondent No."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 6966, "end_char": 6977, "source": "ner", "metadata": {"in_sentence": "r\n\nS. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos.", "canonical_name": "S. T. Destai"}}, {"text": "Urmila Kapoor", "label": "LAWYER", "start_char": 6979, "end_char": 6992, "source": "ner", "metadata": {"in_sentence": "r\n\nS. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos."}}, {"text": "Kamlesh Bansal", "label": "LAWYER", "start_char": 7002, "end_char": 7016, "source": "ner", "metadata": {"in_sentence": "r\n\nS. T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos."}}, {"text": "GosWAMI", "label": "JUDGE", "start_char": 7104, "end_char": 7111, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGosWAMI, J.-This appeal by special leave is directed against the judgment of tho Full Bench of the High Court of Delhi whereby the\n\nwrit petition of the first twelve respondents was partly allowed."}}, {"text": "S. T. Destai", "label": "LAWYER", "start_char": 7672, "end_char": 7684, "source": "ner", "metadata": {"in_sentence": "Other respondents in the High Court in similar position as that of the appellant have been impleaded here as respondents (16 to 110) and they are supporting the appellant through their counsel Mr. S. T. Destai.", "canonical_name": "S. T. Destai"}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 7841, "end_char": 7855, "source": "ner", "metadata": {"in_sentence": "The Union of India, Engineer-in-Chief, C.P.W.D., and the Union Public Service Commi~\n\nssion are respectively respondent Nos."}}, {"text": "Union Public Service Commi~", "label": "RESPONDENT", "start_char": 7894, "end_char": 7921, "source": "ner", "metadata": {"in_sentence": "The Union of India, Engineer-in-Chief, C.P.W.D., and the Union Public Service Commi~\n\nssion are respectively respondent Nos."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 8004, "end_char": 8014, "source": "ner", "metadata": {"in_sentence": "13, 14 and 15 and are representetl by Mr. Gobind Das.", "canonical_name": "Go bind Das"}}, {"text": "18th October, 1958", "label": "DATE", "start_char": 10057, "end_char": 10075, "source": "ner", "metadata": {"in_sentence": "They were subsequently appointed on various dates between 18th October, 1958 and 8th January, 1963, \"to offtciate temporarily and until further orders\" as Assistant Engineers in the Central Engineering Service, Class II (Gazetted) (briefly the Service)."}}, {"text": "8th January, 1963", "label": "DATE", "start_char": 10080, "end_char": 10097, "source": "ner", "metadata": {"in_sentence": "They were subsequently appointed on various dates between 18th October, 1958 and 8th January, 1963, \"to offtciate temporarily and until further orders\" as Assistant Engineers in the Central Engineering Service, Class II (Gazetted) (briefly the Service)."}}, {"text": "2nd November, 1964", "label": "DATE", "start_char": 10937, "end_char": 10955, "source": "ner", "metadata": {"in_sentence": "The remaining thirtyeight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers in the Service on different dates between 2nd November, 1964 and 7th November, 1967, but without any competitive exmination."}}, {"text": "7th November, 1967", "label": "DATE", "start_char": 10960, "end_char": 10978, "source": "ner", "metadata": {"in_sentence": "The remaining thirtyeight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers in the Service on different dates between 2nd November, 1964 and 7th November, 1967, but without any competitive exmination."}}, {"text": "Kailash Prakash", "label": "LAWYER", "start_char": 12205, "end_char": 12220, "source": "ner", "metadata": {"in_sentence": "The respondents (13 to 15) denied their claim by means of a counteraffidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D.\n\nOne of the direct recruits, Shri Durgadas Kama, also filed a counteraffidavit opposing the claim of the respondents in the High Court."}}, {"text": "Durgadas Kama", "label": "OTHER_PERSON", "start_char": 12293, "end_char": 12306, "source": "ner", "metadata": {"in_sentence": "The respondents (13 to 15) denied their claim by means of a counteraffidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D.\n\nOne of the direct recruits, Shri Durgadas Kama, also filed a counteraffidavit opposing the claim of the respondents in the High Court."}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 12654, "end_char": 12672, "source": "regex", "metadata": {"statute": null}}, {"text": "Pappu", "label": "OTHER_PERSON", "start_char": 13638, "end_char": 13643, "source": "ner", "metadata": {"in_sentence": "It is clear that if the High Court is riglilt that there was no determination by the Government under rule 4 ( c) of the Recruitment Rules, to which we will refer presently, apportioning quota amongst the officers recruited through different sources it will not be necessary to go into the other questions raised by Mrs. Pappu for the appellant."}}, {"text": "21st May, 1954", "label": "DATE", "start_char": 14806, "end_char": 14820, "source": "ner", "metadata": {"in_sentence": "The persons with whom we are concerned in this appeal are governed by the Central Engineering Service, Class II, Recruitment Rules (briefly the Rules) which were published on 21st May, 1954."}}, {"text": "are six Parts in these Rules", "label": "STATUTE", "start_char": 14829, "end_char": 14857, "source": "regex", "metadata": {}}, {"text": "Central Public Works Department", "label": "ORG", "start_char": 17334, "end_char": 17365, "source": "ner", "metadata": {"in_sentence": "1) Recruitment by selection shall be made from among Temporary Engineers and Temporary Section Officers employed on the Civil, Engineering side of the Central Public Works Department after consultation with t_he Commission :\n\nProvided that it shall not be necessary to consult the Commission, in the case of any person, if the Commission were consulted in connection with his temporary appointment to the Service."}}, {"text": "17th June, 1947", "label": "DATE", "start_char": 21303, "end_char": 21318, "source": "ner", "metadata": {"in_sentence": "33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 as follows :-\n\n\"Recommendations made by Departmental Promotion Committees on which the Commission is represented should be treated as recommendations haying the approval of the Commission, and the convention regarding acceptance of the advice of the Commission will apply.\""}}, {"text": "Part II of the Rules", "label": "STATUTE", "start_char": 21784, "end_char": 21804, "source": "regex", "metadata": {}}, {"text": "Goviernment", "label": "OTHER_PERSON", "start_char": 21907, "end_char": 21918, "source": "ner", "metadata": {"in_sentence": "We find that the above conclusion we have reached is supp_orted by the stand taken on behalf of the Goviernment in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Part IV."}}, {"text": "7th April, 1969", "label": "DATE", "start_char": 21939, "end_char": 21954, "source": "ner", "metadata": {"in_sentence": "We find that the above conclusion we have reached is supp_orted by the stand taken on behalf of the Goviernment in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Part IV."}}, {"text": "2nd October, 1954", "label": "DATE", "start_char": 22828, "end_char": 22845, "source": "ner", "metadata": {"in_sentence": "She draws our attention to a letter of the Under Secretary to the Government of India, Ministry of works and Housing, dated 2nd October, 1954, which, as the Subject matter shows, contains the \"proposal to prescribe definite quotas for filling the posts of Assistant Engineer (Civil) and Assistant Engjneer (Electrical) in the C.E.S., Class II, and the C.E.E.S. Class II, re:specti\".ely bv different modes of recruitment.\""}}, {"text": "Part HI of the Recruitment Rules", "label": "STATUTE", "start_char": 23308, "end_char": 23340, "source": "regex", "metadata": {}}, {"text": "Section Officers under Part V of the Recruitment Rules", "label": "STATUTE", "start_char": 23415, "end_char": 23469, "source": "regex", "metadata": {}}, {"text": "Part VI of the Recruitment Rules", "label": "STATUTE", "start_char": 23648, "end_char": 23680, "source": "regex", "metadata": {}}, {"text": "Union Public Service Commissio9", "label": "ORG", "start_char": 24328, "end_char": 24359, "source": "ner", "metadata": {"in_sentence": "Provided that if at any given time, candidates who are successful at the Union Public Service Commissio9 competitive examination are not available in sufficient numbers for E filling 50% of the temporary vacancies that might be available, the residual vacancies may be filled temporarily by departmental promotion, subject to the condition that persons so promoted against such vacancies, shall be reverted later, if necessary, to make room for the candidates who may qualify at subsequent examinations to be held by the Commission, as and when they become available.\""}}, {"text": "7th September, 1955", "label": "DATE", "start_char": 24918, "end_char": 24937, "source": "ner", "metadata": {"in_sentence": "F\n\nIt is pointed out that this proposal received approval of the UPSC as per its Jetter dated 7th September, 1955."}}, {"text": "C.P.W.D.", "label": "ORG", "start_char": 25607, "end_char": 25615, "source": "ner", "metadata": {"in_sentence": "in the C.P.W.D.'' It is stated in tbat letter-\n\n\"Since these vacancies have occurred as a result of conver'- sion of posts from temporary to permanent and since the C.P.W.D. has a large number of officiating Assistant Engineers who have been promoted from the grade of Section Officer, it is considered that the officiating Assistant Engineers have a prior claim to these posts."}}, {"text": "18.7.1955", "label": "DATE", "start_char": 26323, "end_char": 26332, "source": "ner", "metadata": {"in_sentence": "The Ministry of Home Affairs also share this 'view ........ \"\n\nThe last paragraph of this letter reads as under :-\n\n\"I am to request that the concurrence of the UPSC to the allotment of these vacancies on ad hoc basis to the officiating Assistant Engineers (Civil) & (Elec) and to their confirmation as proposed by the DPC at their meeting on 18.7.1955 may be communicated to this Ministry at an early date.\""}}, {"text": "5th March, 1962", "label": "DATE", "start_char": 26461, "end_char": 26476, "source": "ner", "metadata": {"in_sentence": "After this our attention is drawn by the appellant to a document dated 5th March, 1962, on the \"subject : preparation of a combined seniority list for direct recruits and departmental promotees in the grade of Assistant Engineers C.P.W.D.\" It is .stated therein as D follows :-\n\n\"It was tentatively agreed that since the ratio of recruitment prescribed for direct recruitment through the UPSC and Departmental Promotion of Section Officers has not been adhered to, the date of confirmation should be the basis of determining the inter se seniority of direct recruits and the Departmental promotees."}}, {"text": "Poppu", "label": "OTHER_PERSON", "start_char": 27424, "end_char": 27429, "source": "ner", "metadata": {"in_sentence": "Mrs Poppu then draws our attention to paragraph 2 of this letter f'."}}, {"text": "16th June, 1962", "label": "DATE", "start_char": 28283, "end_char": 28298, "source": "ner", "metadata": {"in_sentence": "Mrs. Pappu finally draws our attention to the minutes of the meeting held in the Ministry of Home Affairs ion 16th June, 1962, to discuss the question of drawing up a combined seniority list of various categories of Assistant Engineers in the\n\nC.P.W.D.\n\nShe points out that the first paragraph in the minutes shows that \"according to the orders issued in 1955 recruitment to the grade of Assistant Engineers (Civil & Electrical) in the Central Public Works Department is to be made by the following modes,\" namely, permanent vacancies and temporary vacancies in such manner as was contained in the proposal dated 2nd October, 1954, which we have already extracted."}}, {"text": "Ministry df Works & Housing", "label": "ORG", "start_char": 29149, "end_char": 29176, "source": "ner", "metadata": {"in_sentence": "She then draws our attention that certain decisions were taken, as will appear from paragraph 4 of the minutes, with regard to the determination of the relevant seniority of direct recruits and departmental promotees: Mrs. Pappu submits that this is \\a follow-up action of the proposal which emanated from the Ministry df Works & Housing letter dated 2nd Oclober, 1954, :and which recei'.1ed the concurrence of the UPSC."}}, {"text": "2nd Oclober, 1954", "label": "DATE", "start_char": 29190, "end_char": 29207, "source": "ner", "metadata": {"in_sentence": "She then draws our attention that certain decisions were taken, as will appear from paragraph 4 of the minutes, with regard to the determination of the relevant seniority of direct recruits and departmental promotees: Mrs. Pappu submits that this is \\a follow-up action of the proposal which emanated from the Ministry df Works & Housing letter dated 2nd Oclober, 1954, :and which recei'.1ed the concurrence of the UPSC."}}, {"text": "Article 77", "label": "PROVISION", "start_char": 30674, "end_char": 30684, "source": "regex", "metadata": {"statute": null}}, {"text": "Ministry of Works & Housing", "label": "ORG", "start_char": 30907, "end_char": 30934, "source": "ner", "metadata": {"in_sentence": "It is true that there was a proposal from the Ministry of Works & Housing to which concurrence .had been given by the UPSC."}}, {"text": "Go bind Das", "label": "LAWYER", "start_char": 31054, "end_char": 31065, "source": "ner", "metadata": {"in_sentence": "After that there has been no further progress of the matter and Mr. Go bind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry 'was given to any determination under rule 4(c).", "canonical_name": "Go bind Das"}}, {"text": "14th\n\nA June, 1954", "label": "DATE", "start_char": 31377, "end_char": 31395, "source": "ner", "metadata": {"in_sentence": "The Under Secretary in the Ministry of Works & iHousing has filed H .an affidavit dated 16th December, 1976, with an annexure dated 14th\n\nA June, 1954, which shows that with reference to the proposal for quotas the reaction of Home Ministry was in the following terms :\n\n\"Prima facie, the proposal seems unobjectionable but this Minfstry would like to see again after the UPSC's views have been received.\""}}, {"text": "Swaran Singh", "label": "OTHER_PERSON", "start_char": 31692, "end_char": 31704, "source": "ner", "metadata": {"in_sentence": "It is perhaps because of this that Shri Swaran Singh the then Minister for Works & Housing also endorsed the Secretary's proposal which was in the following terms :\n\n\"The proposals are in order and may be approved."}}, {"text": "24th September, 1954", "label": "DATE", "start_char": 32165, "end_char": 32185, "source": "ner", "metadata": {"in_sentence": "The Minister, Shri Swaran Singh's endorsement appears at the foot of this proposal on 24th September, 1954."}}, {"text": "Article 13", "label": "PROVISION", "start_char": 34794, "end_char": 34804, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 35003, "end_char": 35008, "source": "ner", "metadata": {"in_sentence": "We also do not feel justified iin placing exaggerated importance C on the use of the words \"specified quota\" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai."}}]}
{"document_id": "1977_2_587_592_EN", "year": 1977, "text": "STATE OF MAHARASHTRA & ANR. v.\n\nVINA YAK\n\nJanuary 6, 1977\n\n[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]\n\nSeniority and arrears of salary-Respondellt Governme/lf ser.vant in Madhya Pradesh on Reorganisation of States was allotted to Bombay and then to Maharashtra-Supersession in seniority list. grievance about-Circular No.\n\nSRV-1064-D dt. 25.2.1965 of the Maharashtra Government does not govern <JUCstions Of seniority and supers.ession arising froni Reorganisation •of Staies-\n\nCirciilar No. SH-INT-1059-Vl-9 dt. 10.3.1960 alone applies to the respondent's case.\n\nT/u, 1965 circular does not take away the rights, if any, under Rule 21 of the A /located Government Servants (Absorption, Seniority, Pay and A /loances) Rules 1957-Scope of Rule 21.\n\nConsequent to reorganisation of States, the Maharashtra Government published seniority lists from time to time, erroneously according to the respondent a lower place of seniority with the result that juniors got promoted and his promotion was unduly delayed.\n\nThe respondent filed a writ petition asking for due recognition of his seniority, and later amended his petition, D claiming arrears of pay and allowances retrospectively from the date on which be ought to have been promoted according to the final gradation list wherein he was placed correctly and which was approved by the Central Government.\n\nThe writ petition was allowed by the High Court.\n\nBefore this Coµrt the respondent contended that under rule 21 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, he was entitled to draw his pay and allowances from the date of his promotion including the deemed date of promotion.\n\nAllowing the appeal by Special Leave, the Court,\n\nHELD : (1) The Maharashtra Government circular No. SRV 1064 dt. 25.2.1965 does not have the effect of altering the respondent's conditions of service to his prejudice since the said circular issued by the State Government does not fall within the mischief of proviso to s. 115(7) of the States Reorganisation Act. [592 A]\n\n(2) The circular deals with cases where Government servants who were superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who having power to set aside orders of supersession have set aside such orders.\n\n[590 DJ\n\n(3) The circular dt. 25.2.1965 is not intended to govern questions of senio;-ity and supersession arising as a result of Reorganisation of States.\n\nThat circular by its language is designed to meet cases in which a Government servant apart from the provisions of States Reorganisation Act and apart from the problems arising out of reorganisation of States was denied his rightful seniority but is later accorded a due and appropriate place in the seniority list.\n\n[590 F-G]\n\n( 4) The circular issued by the Government of Maharashtra on February 25 1965 does not take away from the respondent the right, if any, which w; s available to him under rule 21.\n\nRule 21 is not in the nature of an enti!lement. . On the other hand, it restricts the right of the allocated Government servant to receive pay and allowancs \"only with effect from the . date\" from which he became available for service or would have been so available except for the causes mentioned in rule 2(d).\n\n[592 B-D]\n\n. (5) The respondent's case must fall within the Bombay Government Circular No. SR-INT-1059-VI dt. 10.3.1960 in which .case he would not be en!Jtled. to the arrears for salary for the period prior to the date of his actuat promot10n.\n\n[591 G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 651 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated 19-6-1974 of the Bombay High Court in\n\nS.C.A.\n\nNo. 1251 of 1970.)\n\nM. N. Phadke, Girish Chandra and M. N. Shroff, for the appellants.\n\nC S. V. Gupte, N. Kamalakar and A. G. Ratnaparkhi, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nOn the reorganisation of States on November 1, 1956 the respondent who was working as an Agricultural Overseer in the then State of Madhya Pradesh was allocated first to the State of Bombay and later to the State of Maharashtra.\n\nBy a resolution dated February 17, 1958 the Government of Bombay equated the post of Agricultural Overseer with that of an Agricultural Assistant,. 'Grade II. In July 1958 the respondent was promoted as an Agriultural Supervisor and in April 1967 he was appointed to the post of an Agricultural Officer.\n\nOn the reorganisation of States, a provisional combined seniority list of Agricultural Assisants, Grade II, was published by the Government of Maharashtra in 1961.\n\nThat list was revised from time to time, and ultimately tthe Government of India approved the final , seniority list which came to be published on May 29, 1973.\n\nThe respondent has no grievance against his placement in that list, but his\n\ncase is that under the seniority lists prepared from time to time by the\n\nState Government, he was erroneously accorded a lower place of seniority with the result that persons who were in fact junior to him came to be promoted on the assumption that they were senior to him.\n\nThe respondent therefore filed the present writ petition on October 14, 1970 asking for due recognition of his seniority.\n\nHe later amended that petition and asked for arrears of pay and allowances retrospectively from the date on which he ought to have been promoted in accordance with the seniority list approved by the Central Govern- :ment.\n\nThe writ petition having been aUowed by the Nagpur Bench of the Bombay High Court, the State of Maharashtra has filed this appeal by special leave.\n\nThe sole question which arises for determination in this appeal is whether the respondent is en.titled to arrears of pay with effect from the date on which he would, in the normal course, have been promoted if his seniority were recognised as it eventually came to be\n\nMAHARASHTRA v. VINAYAK (Chatzdrachud, J.) 5 89\n\nrecognised under the seniority list approved by the Central Government in 1973.\n\nThe answer to this question depends on whether the rights of the respondent are governed by the circular dated March 10, 1960 or by the circular dated February 25, 1965.\n\nThe case of the State Government is that the former, and not the latter circular, applies whereas the respondent contends that he is entitled to arrears of safary for the entire period under the latter circular.\n\nWe find it impossible to accept the respondent's contention, which has found favour with the High Court, that the circular of February 25, 1965 governs the matter.\n\nThat circular reads thus :\n\n\"Retrospective promotions of those who had been superseded earlier.\n\nGOVERNMENT OF MAHARASHTRA\n\nGENERAL ADMINISTRATION DEPARTMENT\n\nI Circular Memwandum No. SRV-1064-D, Sachivalaya,\n\nBombay 32 (B.R.) 25th February, 1965 /Falgune 6, 1886.\n\nCIRCULAR MEMORANDUM OF GOVERNMENT\n\nA question has been raised whether in cases in which Government servants who were superseded for promotion to the higher post are later promoted on the orders of higher authorities who consider the supersession 4nfustified and who having powers to set aside the order of supersession, do so, their promotion should be effective from the date on which they are actually promoted or from the date they should have been promoted had they not been wrongly superseded.\n\nThe Government has, considered this question and decided that in such cases, the Government servants concerned, should be deemed to have been promoted to higher post from the date from which they would have been promoted, but for their wrongful supersession i.e. from the date from which their juniors who were promoted by superseding them started to officiate in such posts and they should be allowed pay in such post as if they were promoted on the dates on which their juniors were promoted and also paid arrears of pay and allowances from such dates.\n\n(2) Orders in paragraph 1 above apply also to the cases of persons, who are superseded for promotion to gazetted post within the purview of the Public Service Commission ordered by Government but are later promoted when their earlier supersession is considered in consultation with the Commission unjustified.\n\n(3) Pending cases should be regulated in accordance with these orders in paragraphs 1 and 2 above, and arrears of\n\nD',\n\npay and allowances should be paid to the persons concerned provided that if the arrears relate to any period prior to the 1st May 1960, the payment is restricted to the period after that date, i.e. after the 1st May 1960. ·\n\n( 4) This Circular Memorandum issues with the concurrence of the Finance Department VIDE that department unofficial reference No. 581/V, dated the 2nd February, 1965.\n\nBy Order and in the name of Government of Maharashtra.\n\nSd/- K. P. Nadkarni,\n\nDeputy Secretary to Govt.\"\n\nThe language of this circular is singularly inappropriate to cover cases concerning equation and seniority consequent upon formation of new States.\n\nThe circular deals with cases where government servants who are superseded for promotion to the higher post are later promoted on orders of higher authorities who considered the supersession unjustified and who, having powers to set aside orders of supersession, have set aside such orders. In such cases, the circular provides, the government servant concerned should be deemed to have been promoted to the higher post from the date from which he would have been promoted but for his wrongful supersession.\n\nThere is no question in the present case of the respondent being promoted on the basis of any order passed by a higher authority.\n\nNor indeed did any higher authority consider the so-called supersession of the respondent as unjustified. While approving the revised seniority list in which the respondent occupied a much higher place than previously, the Central Government did not set aside any order of the respondent's supersession nor did it pass any order directing that the respondent be promoted to a higher post.\n\nWe are clear that the circular of February 25, 1965, on which judgment of the High Court rests, is not intended to govern questions of seniority and supersession arising as a rsult of reorganisation of States.\n\nThat circular, by its language, is designed to meet cases in which a government servant, apart from the provisions of the States Reorganisation Act and apart from problems arising out of reorganisation of States, was denied his rightful seniority but is later 'accorded a due and appropriate place in the seniority list.\n\nParagraph 2 of the circular which speaks also of posts within the purview of the Public Service Commission affords some indication that the circular is intended to apply only to cases of routine supersessions in the normal course of a service career.\n\nIf the circular of February 25, 1965 were intended to apply to a case like the present, it would have atleast referred to the circular of March 10, 1960 which specifically governs nmtters relating to fixation of seniority consequent upon the reorganisation of States.\n\nThat circular, insofar as relevant, reads thus : /.-\n\nMAHARASHTRA v. VINAYAK (Chundrachud, J.)\n\n\"Fixation of Seniority and pay on pronwtion according to final gradation lists.\n\nGOVERNMENT OF BOMBAY\n\nPolitiC'al and Services Department\n\nCircular No. SR-INT-1059-VI\n\nSachivalaya, Bombay, 10th March, 1960\n\nCIRCULAR OF GOVERNMENT\n\nPromotions made on and after the 1st November, 1956, have been treated as provisional pending absorption of the personnel and finalisation of gradation lists in accordance with the allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules 1957.\n\nThey are also subject to review in the light of the changes that may be made in the gradation lists as a result of the decisions on the representations submitted by the Government Servants concerned.\n\nQuestion has been raised as to how seniority and pay in the promotion post should be fixed in tfue case of a Government servant who in the light of the final gradation list, is promoted later than the date on which he was due for promotion.\n\nGovernment is pleased to direct that seniority and initial pay on promotion according to the final gradation list should be fixed as if the Government servant had been promoted on the date on which he would have been promoted had the gradation list been finalised on the 1st November 1956.\n\nThe date on which he would have been promoted should be admitted on the basis of a certificate given by the appointing authority specifying the date.\n\nNo arrears of pay should, however, be paid for the period, prior to the date of actual promotion.\"\n\nUnder this circular, the senio1ity and initial pay of the respondent has to be fixed as if he was promoted on the date on which he would have been promoted if the gradation list had been finalised on 'November 1, 1956.\n\nBut no arrears of pay can be paid to him for the period prior to the date of actual promotion. The State Government relied upon this circular by their counter affidavit filed in the Hi_gh Court but no challenge was made by the respondent to the vires or the validity of that circular even though he had his petition amended in order to ask for arrears of salat')'.\n\nOn the assumption that the circular is within the powers of the State Government, we have no doubt that the respondent's case must fall within that circular, in which C'ase he would not be entitled to the arrears of salary for the period prior to the date of his actual promotion.\n\nMr. Gupte appearing on behalf of the respondent relies upon rule 21 of \"The Allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules, 19?7\" and argues that i<ince\n\n]).\n\n; A under that rule the respondent is entitled to draw his pay and allow- \" ances with effect from the date of his promotion to the higher post including the deemed date of promotion, the Government of Maharashtra has no power, in view of the proviso to s. 115 (7) of the States Reorganisation Act, to alter his conditions of service to his prejudice.\n\nThis arg4ment is being advanced for the first time in this Court, but, apart from that, we are unable to agree either that rule iB 21 has the effect contended for or that the circular issued by the State Government falls within the mischief of the proviso to s. 115(7).\n\nBy rule 21, the arrears of pay and allowances ''which may become due to an •allocated government servant\" on the fixation of his pay as on November 1, 1956 shall be payable only with effect from the date from which he became available for service in the State of Bombay or would have been so available but for the causes men- 11\n\n•.C tioned in rule 2(d).\n\nRule 21 is not in the nature of an entitlement.\n\nOn the other h•and, it restricts the right of the allocated government servant to receive pay and allowances \"only with eficct from the date\" from which he became available for service in the State of B::>mbay or would have been so available except for the causes mentioned in rule 2(d).\n\nThe circular issued by the Governmnet of Mahoarashtra on February 25, 1965 does not take away from the respondent the lD right, if any, which was available to him under rule 21.\n\nFor these reasons we set aside the judgment of the High Court, allow this appeal and direct that the respondent's writ petition shall\n\nst•and dismissed.\n\nIn view ot the order passed at the time when special leave was granted, appellant shall pay the costs of the appeal to the respondent.\n\n;.S.R.\n\nAppeal allowed.", "total_entities": 41, "entities": [{"text": "STATE OF MAHARASHTRA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ANR", "offset_not_found": false}}, {"text": "VINA YAK", "label": "RESPONDENT", "start_char": 32, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "VINAYAK", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 60, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "Maharashtra Government", "label": "ORG", "start_char": 793, "end_char": 815, "source": "ner", "metadata": {"in_sentence": "Consequent to reorganisation of States, the Maharashtra Government published seniority lists from time to time, erroneously according to the respondent a lower place of seniority with the result that juniors got promoted and his promotion was unduly delayed."}}, {"text": "Central Government", "label": "ORG", "start_char": 1334, "end_char": 1352, "source": "ner", "metadata": {"in_sentence": "The respondent filed a writ petition asking for due recognition of his seniority, and later amended his petition, D claiming arrears of pay and allowances retrospectively from the date on which be ought to have been promoted according to the final gradation list wherein he was placed correctly and which was approved by the Central Government."}}, {"text": "25.2.1965", "label": "DATE", "start_char": 1794, "end_char": 1803, "source": "ner", "metadata": {"in_sentence": "25.2.1965 does not have the effect of altering the respondent's conditions of service to his prejudice since the said circular issued by the State Government does not fall within the mischief of proviso to s. 115(7) of the States Reorganisation Act. ["}}, {"text": "s. 115(7)", "label": "PROVISION", "start_char": 2000, "end_char": 2009, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 2017, "end_char": 2042, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 2619, "end_char": 2644, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 2864, "end_char": 2889, "source": "ner", "metadata": {"in_sentence": "[590 F-G]\n\n( 4) The circular issued by the Government of Maharashtra on February 25 1965 does not take away from the respondent the right, if any, which w; s available to him under rule 21."}}, {"text": "February 25 1965", "label": "DATE", "start_char": 2893, "end_char": 2909, "source": "ner", "metadata": {"in_sentence": "[590 F-G]\n\n( 4) The circular issued by the Government of Maharashtra on February 25 1965 does not take away from the respondent the right, if any, which w; s available to him under rule 21."}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 3769, "end_char": 3781, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Girish Chandra and M. N. Shroff, for the appellants."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 3783, "end_char": 3797, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Girish Chandra and M. N. Shroff, for the appellants."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 3802, "end_char": 3814, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, Girish Chandra and M. N. Shroff, for the appellants."}}, {"text": "C S. V. Gupte", "label": "LAWYER", "start_char": 3837, "end_char": 3850, "source": "ner", "metadata": {"in_sentence": "C S. V. Gupte, N. Kamalakar and A. G. Ratnaparkhi, for the respondent."}}, {"text": "N. Kamalakar", "label": "LAWYER", "start_char": 3852, "end_char": 3864, "source": "ner", "metadata": {"in_sentence": "C S. V. Gupte, N. Kamalakar and A. G. Ratnaparkhi, for the respondent."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3869, "end_char": 3886, "source": "ner", "metadata": {"in_sentence": "C S. V. Gupte, N. Kamalakar and A. G. Ratnaparkhi, for the respondent."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 3953, "end_char": 3964, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nOn the reorganisation of States on November 1, 1956 the respondent who was working as an Agricultural Overseer in the then State of Madhya Pradesh was allocated first to the State of Bombay and later to the State of Maharashtra."}}, {"text": "Government of Bombay", "label": "RESPONDENT", "start_char": 4244, "end_char": 4264, "source": "ner", "metadata": {"in_sentence": "By a resolution dated February 17, 1958 the Government of Bombay equated the post of Agricultural Overseer with that of an Agricultural Assistant,. '", "canonical_name": "Government of Bombay"}}, {"text": "Government of India", "label": "ORG", "start_char": 4731, "end_char": 4750, "source": "ner", "metadata": {"in_sentence": "That list was revised from time to time, and ultimately tthe Government of India approved the final , seniority list which came to be published on May 29, 1973."}}, {"text": "May 29, 1973", "label": "DATE", "start_char": 4817, "end_char": 4829, "source": "ner", "metadata": {"in_sentence": "That list was revised from time to time, and ultimately tthe Government of India approved the final , seniority list which came to be published on May 29, 1973."}}, {"text": "October 14, 1970", "label": "DATE", "start_char": 5245, "end_char": 5261, "source": "ner", "metadata": {"in_sentence": "The respondent therefore filed the present writ petition on October 14, 1970 asking for due recognition of his seniority."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 5595, "end_char": 5612, "source": "ner", "metadata": {"in_sentence": "The writ petition having been aUowed by the Nagpur Bench of the Bombay High Court, the State of Maharashtra has filed this appeal by special leave."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 5618, "end_char": 5638, "source": "ner", "metadata": {"in_sentence": "The writ petition having been aUowed by the Nagpur Bench of the Bombay High Court, the State of Maharashtra has filed this appeal by special leave."}}, {"text": "GOVERNMENT OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 6724, "end_char": 6749, "source": "ner", "metadata": {"in_sentence": "GOVERNMENT OF MAHARASHTRA\n\nGENERAL ADMINISTRATION DEPARTMENT\n\nI Circular Memwandum No."}}, {"text": "1st May 1960", "label": "DATE", "start_char": 8588, "end_char": 8600, "source": "ner", "metadata": {"in_sentence": "(3) Pending cases should be regulated in accordance with these orders in paragraphs 1 and 2 above, and arrears of\n\nD',\n\npay and allowances should be paid to the persons concerned provided that if the arrears relate to any period prior to the 1st May 1960, the payment is restricted to the period after that date, i.e. after the 1st May 1960. ·"}}, {"text": "K. P. Nadkarni", "label": "LAWYER", "start_char": 8834, "end_char": 8848, "source": "ner", "metadata": {"in_sentence": "Sd/- K. P. Nadkarni,\n\nDeputy Secretary to Govt.\""}}, {"text": "February 25, 1965", "label": "DATE", "start_char": 10092, "end_char": 10109, "source": "ner", "metadata": {"in_sentence": "We are clear that the circular of February 25, 1965, on which judgment of the High Court rests, is not intended to govern questions of seniority and supersession arising as a rsult of reorganisation of States."}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 10391, "end_char": 10416, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 10672, "end_char": 10697, "source": "ner", "metadata": {"in_sentence": "Paragraph 2 of the circular which speaks also of posts within the purview of the Public Service Commission affords some indication that the circular is intended to apply only to cases of routine supersessions in the normal course of a service career."}}, {"text": "March 10, 1960", "label": "DATE", "start_char": 10981, "end_char": 10995, "source": "ner", "metadata": {"in_sentence": "If the circular of February 25, 1965 were intended to apply to a case like the present, it would have atleast referred to the circular of March 10, 1960 which specifically governs nmtters relating to fixation of seniority consequent upon the reorganisation of States."}}, {"text": "GOVERNMENT OF BOMBAY", "label": "RESPONDENT", "start_char": 11289, "end_char": 11309, "source": "ner", "metadata": {"in_sentence": "GOVERNMENT OF BOMBAY\n\nPolitiC'al and Services Department\n\nCircular No.", "canonical_name": "Government of Bombay"}}, {"text": "CIRCULAR OF GOVERNMENT", "label": "RESPONDENT", "start_char": 11415, "end_char": 11437, "source": "ner", "metadata": {"in_sentence": "SR-INT-1059-VI\n\nSachivalaya, Bombay, 10th March, 1960\n\nCIRCULAR OF GOVERNMENT\n\nPromotions made on and after the 1st November, 1956, have been treated as provisional pending absorption of the personnel and finalisation of gradation lists in accordance with the allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules 1957."}}, {"text": "1st November 1956", "label": "DATE", "start_char": 12422, "end_char": 12439, "source": "ner", "metadata": {"in_sentence": "Government is pleased to direct that seniority and initial pay on promotion according to the final gradation list should be fixed as if the Government servant had been promoted on the date on which he would have been promoted had the gradation list been finalised on the 1st November 1956."}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 12894, "end_char": 12910, "source": "ner", "metadata": {"in_sentence": "Under this circular, the senio1ity and initial pay of the respondent has to be fixed as if he was promoted on the date on which he would have been promoted if the gradation list had been finalised on 'November 1, 1956."}}, {"text": "Gupte", "label": "OTHER_PERSON", "start_char": 13565, "end_char": 13570, "source": "ner", "metadata": {"in_sentence": "Mr. Gupte appearing on behalf of the respondent relies upon rule 21 of \"The Allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules, 19?7\" and argues that i<ince\n\n])."}}, {"text": "s. 115", "label": "PROVISION", "start_char": 14008, "end_char": 14014, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 14026, "end_char": 14051, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 115(7)", "label": "PROVISION", "start_char": 14366, "end_char": 14375, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 14641, "end_char": 14647, "source": "ner", "metadata": {"in_sentence": "By rule 21, the arrears of pay and allowances ''which may become due to an •allocated government servant\" on the fixation of his pay as on November 1, 1956 shall be payable only with effect from the date from which he became available for service in the State of Bombay or would have been so available but for the causes men- 11\n\n•.C tioned in rule 2(d)."}}, {"text": "Mahoarashtra", "label": "GPE", "start_char": 15113, "end_char": 15125, "source": "ner", "metadata": {"in_sentence": "The circular issued by the Governmnet of Mahoarashtra on February 25, 1965 does not take away from the respondent the lD right, if any, which was available to him under rule 21."}}]}
{"document_id": "1977_2_593_598_EN", "year": 1977, "text": "DEPUTY COMMISSIONER OF COMMERCIAL TAXES A v.\n\nH. R. SRI RAMULU\n\nJanuary 11, 1977\n\n(H. R. KHANNA, P. K. GOSWAMI AND P. S. KAILASAM, JJ.]\n\nLimitation-Star:i11g poi/// for computing tlie period of four years mentiolled ins. 21(3) for tlie exercise of revisio11al powers under s. 21(2) against an <Jrder under s. 12A of th, e Mysore Sales Tax Act 1957 in respect of an escaped turnover-Whether i11itial assessment order or an order made under s. 12A is 1he starting poillf for computation.\n\nIn respect of the assessment years 1959-60 and 1960-61, fresh assessments were made under s. 12A of the Mysore General Sales Tax Act 1957 by the Commercial Tax Officer.\n\nBy his order dated June 8, 1966, certain amounts which had escaped assessment under the .original assessment orders dated March 21, 1963 were included in the turnover of the respondent, but the deductions in respect of shop rent and tree tax were, however, allowed as in the initial orders. The appellant, in exercise of the powers under s. 21 (2) of the Act, by his orders dated 'June 28, 1967 revised the orders dated June 8, 1966 disallowing the deductions in respect of the, shop rent, following the decision of this Court in Shinde Brother etc. v. Deputy Commissioner Raic/1ur [1967]\n\nI S.C.R. 548.\n\nTwo rectification applications and the two appeals therefrom on the ground that the revisions of assessment were barred by limitation under s. 21 (3) of the Act and, as such, there was a mistake apparent on the record were rcjcted as not maintainable. However, the writ petitions filed were allowed by the High Court holding that the orders dated June 28, 1967 were without jurisdiction since they had been made beyond the period of four years from the date of the initial assessment orders dated March 21, 1963.\n\nOn appeals by special leave to this Court,\n\nHELD : The contention advanced on behalf of the appellants that the period of four years mentioned in s. 21 (3) of the Act should be computed from the orders dated June 8, 1966 made under S. I 2A cf the Act and not from the initial orders of assessment dated March 21, 1963 is well-founded.\n\n[5'}5 C-DJ\n\nOnce an assessment is reopened, the initial order for assessment ceases to be operative.\n\nThe effect of reopening the assessment is to vacate or set a£ide the initial order for assessment and to substitute in its place the order made F on reassessment. The initial order for reassessmellt cannot be said to survive even partiallv although the justification for dessessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order. The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of , the t1m1over escaping assessment.\n\n[596 D-E]\n\nJn the present case the assessment orders made under s. 12A were compre- G .fllensive orders and were not confined merely to matters which had escaped assessment earlier and the only orders which couTd be the subject-matter of revision by the appellant were the orders made under s. l 2A of the Act and not the iuitial assessment orders.\n\n[596 E-FJ\n\nJ. Jaganmohan Rao & Ors. v. Commissioner of income-tax and Excess Profitr Tax, A ndhra Pradesh [1970] l S.C.R. 726=75 ITR 373; Commissioner of Sales Tax, Madhya Pradesh v. H. M. Es11fali H. M. Abd11/ali [1973] 3 S.C.R.\n\nH 1005=90 ITR 271, followed.\n\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 145-146/ 1972.\n\n(Appeals by Special Leave from the Judgment and Order dated 9-12-1970 of the Mysore High Court in Writ Petitions Nos. 2042 and 2065 /70).\n\nB Narayan Nettar, for the appellant.\n\nR. M. Mehta, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Jaxe> appellant under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as tlie Act) .\n\nThe respondent is an ekise contractor.\n\nHe was assessed under the Act for the assessment years 1959-60 and 1960-61 as per orders dated March 21, 1963 rtrade by the Commercial Tax Officer Raichur.\n\nUnder those orders the taxable turnover of the respondent for the two years in question was determined after deducting the shop rent •and the tree tax.\n\nFor the assessment year 1959-60, a sum of s. 2,10,542 was deducted and the net taxable turnover was determinetl to be Rs. 25,989.\n\nFor the year 1960-61 a sum of Rs. 3,98,350 was dedl1cted and the net taxable turnover was determined to be Rs. 26,657.\n\nThe Commercial Tax Officer initiated proceedings under section 12A of the Act in respect of the aforesaid years because he was of the view that some items of turnover had escaped assessment.\n\nAs per orders dated June 8, 1966 he made assessment by including in the turnover of the respondent certain amounts which had escaped assessment under the original asse1ssment orders dated March 21, 1963.\n\nThe deduction in respect of shop rent and tree tax was, however, allowed to the respondent in orders dated June 8, 1966 as it had been allowed in initial orders dated March 21, 1963.\n\nOn June 28, 1967 the appellant, i.e., the Deputy Commissioner of Commercial Taxes, made two orders revising the orders dated June 8, 1966.\n\nIn the said orders the appellant disallowed the deduction which had been allowed to the respondent in respect of _ the shop rent.\n\nThe oappellant in those orders referred to the decision of this Court in Shinde Brother etc. v.\n\nDeputy Commissioner Raichur(') and held that the amount of shop rent being not excise duty \"should not !Je deducted in computing the turnover of the respondent for the two years in question. The taxable turnover of the respondent for the two years in question was accordingly enhanced.\n\n\nThe respondent made two applications for rectification of the orders of the appellant dated June 28, 1967. It was urged on behalf of the respondent that the revision of assessments was barred by limitation under section 21 ( 3) of the Act and as such there was a mistake apparent on the record.\n\nThe appellant rejected those applications. The respondent then preferred two appeals to the Sales Tax Appellate Tribunal.\n\nThe Tribunal too rejected those appeals on the ground that they were not maintainable.\n\nThe respondent thereafter filed two petitions in the High Court under article 226 for the issuance of writs in the nature of certiorari for quashing the orders dated June 28, 1967. The High Court, as already mentioned, allowed both the petitions and quashed orders dated June 28, 1967.\n\nIn the opinion of the High Court, orders dated June 28, 1967 made by the appellant were without jurisdiction since they had been made beyond the period of four years from the date of the assessment orders dated March 21; 1963.\n\nMr. Naravan Nettar. learned counsel for the appellant. has contended in appeal before us that the period of four years mentioned in section 21(3) of the Act should be computed from the orders dated June 8, 1966 made under section 12A of the Act and not from the initial orders of assessment dated March 21, 1963.\n\nThe above stand has. been controverted by Mr. Mehta, who argued the case amicus curiae as no one appeared on behalf of. the respondent.\n\nAfter giving the matter our consideration, we are of the view that the contention advanced on behalf of the appellant is well-founded.\n\nBefore, however, dealing with the matter, we consider it appropriate to reproduce the relevent provisions of the Act.\n\nSection 12A of the Act relates to assessement of escaped turnover.\n\nSub-section ( 1) of that section at the relevant time read as under :\n\n\"(1) Where for any reason the whole or any part of the turnover of a dealer has escaped assessment to tax or licence fee or has been assessed at a lower rate than the rate at which it is assessable, the assessing authority may, subject to the provisions of sub-section (2), at any time within a period of five years from the expiry of the year to which the tax or licence fee relates, assess to the best of its judgment, the tax or licence fee payable on the turnover referred to after issuing a notice to the dealer and after making such enquiry as it considers necessary.\"\n\nSection 21 of the Act deals, inter alia. with revisional powers of the Deputy Commissioner.\n\nSub-section (2) and (3) of that section G read as under :\n\n\"(2) The Deputy Commissioner may of his own motion call for and examine the record of any order passed or oroceeding recorded under the provisions of this Act by a C0mmercial Tax Officer subordinate to him and against which no appeal has been preferred to him umier section 20, for H the purpose of satisfying him'self as to the legality or propriety of such order or as to the regularity of such ornceedinq and pass such order with respect thereto as he thinks fit.\n\n4-112SCI/76\n\nA ( 3) In relation to an order of assessment passed under this Act, the power under sub-sections (1) and (2) shall be exercisable only within a period of four years from the date on which the order was passed.\"\n\nThe short question which arises for determination in these appeals is that in the event of an order having been made under section 12A of the Act, what is the starting point for computing the period of four years, mentioned in section 21 ( 3), for the exercise of the powers under section 21 (2).\n\nIs it the initial assessment order or is it the order made under section 12A ?\n\nIn the context of the present case, the question to be answered is as to whether the period of four years is to be calculated from March 21, 1963 when the initial assessment orders were made, or from June 8, 1966 when the orders under section 12A of the Act were made.\n\nSo far as this question is concerned, we are of the opinion that the period of four years should be calculated from June 8, 1966, i.e., the date on which orders under section 12A of the Act were made.\n\nThe reason for that is that once an assessment is reopened, the initial order for assessment ceases to be operative.\n\nThe effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.\n\nThe initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order.\n\nThe result o.f reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect Orf which there is no allegation of the turnover escaping assessment.\n\nAs it is we find that in the present .case tfue assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier.\n\nIn the circumstances, the only orders which could be the subject matter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders.\n\nIn the case of V. Jagannathan Rao & ors.\n\nv. Commissioner of Income-tax and Exrcess Profits Tax, Andhra Pradesh (') this Court dealt with section 34 of the Indian Income-tax Act, 1922 which relates to reassessment in the case of income escaping assessment.\n\nIt was held by this Court that once assessment is reopened the previous under-assessment is set aside and the whole proceedings start afresh.\n\nRamaswami J. speaking for the Court observed :\n\n\"Section 34 in terms states that once the Income-tax Officer decides to reopen the assessment he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains.\n\nIt is, therefore, manifest that once assessment is\n\n~------·\n\nOJ [1970J 1 s.c.R. 726=75 ITR 373.\n\nreopened by issuing a notice under sub-ection ( 2) of section 22 the prvious under-assessment is set aside and the whole assessment proceedings start afresh.\n\nWhen once valid proceedings are started under section 34(1) (b) the Incometax Officer had not only the jurisdiction but it was his duty to levy tax on the entire income that had escaped assessment during that year.\"\n\nIn the case of Commissioner of Sales Tax, Madhya Pradesh v. fl. M. Esufali H. M. Abdulali(') this Court dealt with reassessment made under section 19 of the Madhya Pradesh General Sales Tax Act, 1958.\n\nIt was held that when reassessment is made, the former assessment is completely reopened and in its place fresh assessment is made.\n\nHegde J. speaking for the Court observed :\n\n\"What is true of the assessment must also be true of reassessment because reassessment is nothing but a fresh assessment.\n\nWhen reassessment is made under section 19, the former assessment is completely reop~_ned and in its place fresh assessment is made.\n\nWhile reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover.\n\nWhile making assessment under section 19, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce his account books.\n\nIf contention taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude.\n\nIt is difficult to conceive that such could be the position in law.\"\n\nIn International Cotton Corpn. (P) Ltd. \"1.\n\nCommercial Tax Officer, Hubli & Ors. (') this Court held that once can assessment order had been rectified and it was sought to make a further rectification of that order, the period of limitation for making such further rectification would commence not froni the date of the original assessment order but from the date of the earlier rectification order. Alagiriswami J. speaking for the Court in this context observed :\n\n\"The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance.\n\nWhat was sought to be rectified was the assessment order rectified as a consequence of this Court's decision in Yaddalam's case.\n\nAfter such rectification the original assessment order was no longer in force and that was not the order sought to be rectified.\n\nIt is admitted that all the rectification orders would be within time calculated from the original rectification order.\n\nRule 38 itself speaks of 'any order' and there is no doubt that the rectified order is also 'any order' which can be rectified under Rule 38;\" -\n\n\nAlthough the above case related to an order which had been subsequently rectified, the principle laid down therein would, in our opinion, be also applicable in cases where reassessment is made on the ground that certain amounts of turnover had escaped assessment.\n\nBefore we conclude, we may observe that according to section 33B of the Indian Income-tax Act, 1922 the Commissioner cannot revise an order of reassessment made under the provisions of section 34 of the Act.\n\nLikewise, sub-section (2) of section 263 of the Incometax Act, 1961 expressly prohibits the revision by the Commissioner of Income-tax of an order of reassessment made under section 147 of that Act.\n\nNo such prohibition in the provisions of the Act with which we are concerned has, however, ben brought to our notice.\n\nWe would, therefore, accept the appeals, set aside the judgment of the High Court and dismiss the petitions under article 226 filed by the respondent.\n\nLooking to all the facts, we leav.e the parties to bear their own costs in this Court as well as in the High Court.\n\nS.R.\n\nAppeals allowed", "total_entities": 69, "entities": [{"text": "DEPUTY COMMISSIONER OF COMMERCIAL TAXES", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "DEPUTY COMMISSIONER OF COMMERCIAL TAXES", "offset_not_found": false}}, {"text": "H. R. SRI RAMULU", "label": "RESPONDENT", "start_char": 46, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "H. R. SRI RAMULU", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 83, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 97, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 115, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "s. 21(2)", "label": "PROVISION", "start_char": 273, "end_char": 281, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12A", "label": "PROVISION", "start_char": 306, "end_char": 312, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore Sales Tax Act 1957", "label": "STATUTE", "start_char": 322, "end_char": 347, "source": "regex", "metadata": {}}, {"text": "s. 12A", "label": "PROVISION", "start_char": 439, "end_char": 445, "source": "regex", "metadata": {"linked_statute_text": "Mysore Sales Tax Act 1957", "statute": "Mysore Sales Tax Act 1957"}}, {"text": "s. 12A", "label": "PROVISION", "start_char": 577, "end_char": 583, "source": "regex", "metadata": {"linked_statute_text": "Mysore Sales Tax Act 1957", "statute": "Mysore Sales Tax Act 1957"}}, {"text": "Mysore General Sales Tax Act 1957", "label": "STATUTE", "start_char": 591, "end_char": 624, "source": "regex", "metadata": {}}, {"text": "s. 21", "label": "PROVISION", "start_char": 995, "end_char": 1000, "source": "regex", "metadata": {"linked_statute_text": "the Mysore General Sales Tax Act 1957", "statute": "the Mysore General Sales Tax Act 1957"}}, {"text": "June 8, 1966", "label": "DATE", "start_char": 1077, "end_char": 1089, "source": "ner", "metadata": {"in_sentence": "The appellant, in exercise of the powers under s. 21 (2) of the Act, by his orders dated 'June 28, 1967 revised the orders dated June 8, 1966 disallowing the deductions in respect of the, shop rent, following the decision of this Court in Shinde Brother etc."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 1402, "end_char": 1407, "source": "regex", "metadata": {"linked_statute_text": "the Mysore General Sales Tax Act 1957", "statute": "the Mysore General Sales Tax Act 1957"}}, {"text": "June 28, 1967", "label": "DATE", "start_char": 1609, "end_char": 1622, "source": "ner", "metadata": {"in_sentence": "However, the writ petitions filed were allowed by the High Court holding that the orders dated June 28, 1967 were without jurisdiction since they had been made beyond the period of four years from the date of the initial assessment orders dated March 21, 1963."}}, {"text": "March 21, 1963", "label": "DATE", "start_char": 1759, "end_char": 1773, "source": "ner", "metadata": {"in_sentence": "However, the writ petitions filed were allowed by the High Court holding that the orders dated June 28, 1967 were without jurisdiction since they had been made beyond the period of four years from the date of the initial assessment orders dated March 21, 1963."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 1922, "end_char": 1927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12A", "label": "PROVISION", "start_char": 2924, "end_char": 2930, "source": "regex", "metadata": {"statute": null}}, {"text": "B Narayan Nettar", "label": "LAWYER", "start_char": 3675, "end_char": 3691, "source": "ner", "metadata": {"in_sentence": "B Narayan Nettar, for the appellant."}}, {"text": "R. M. Mehta", "label": "LAWYER", "start_char": 3713, "end_char": 3724, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta, for the respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 3791, "end_char": 3797, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Jaxe> appellant under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as tlie Act) ."}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 3876, "end_char": 3893, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Jaxe> appellant under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as tlie Act) ."}}, {"text": "article 226", "label": "PROVISION", "start_char": 3940, "end_char": 3951, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3959, "end_char": 3980, "source": "regex", "metadata": {}}, {"text": "section 21", "label": "PROVISION", "start_char": 4068, "end_char": 4078, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mysore Sales Tax Act, 1957", "label": "STATUTE", "start_char": 4086, "end_char": 4112, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 4546, "end_char": 4550, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "section 12A", "label": "PROVISION", "start_char": 4810, "end_char": 4821, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "section 21", "label": "PROVISION", "start_char": 6204, "end_char": 6214, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 6380, "end_char": 6408, "source": "ner", "metadata": {"in_sentence": "The respondent then preferred two appeals to the Sales Tax Appellate Tribunal."}}, {"text": "article 226", "label": "PROVISION", "start_char": 6569, "end_char": 6580, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Naravan Nettar", "label": "OTHER_PERSON", "start_char": 7018, "end_char": 7032, "source": "ner", "metadata": {"in_sentence": "Mr. Naravan Nettar."}}, {"text": "section 21(3)", "label": "PROVISION", "start_char": 7146, "end_char": 7159, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 7236, "end_char": 7247, "source": "regex", "metadata": {"statute": null}}, {"text": "21, 1963", "label": "DATE", "start_char": 7317, "end_char": 7325, "source": "ner", "metadata": {"in_sentence": "has contended in appeal before us that the period of four years mentioned in section 21(3) of the Act should be computed from the orders dated June 8, 1966 made under section 12A of the Act and not from the initial orders of assessment dated March 21, 1963."}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 7374, "end_char": 7379, "source": "ner", "metadata": {"in_sentence": "been controverted by Mr. Mehta, who argued the case amicus curiae as no one appeared on behalf of."}}, {"text": "Section 12A", "label": "PROVISION", "start_char": 7720, "end_char": 7731, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 8435, "end_char": 8445, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 8853, "end_char": 8863, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 9403, "end_char": 9414, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 9507, "end_char": 9517, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 9561, "end_char": 9571, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 9643, "end_char": 9654, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 9893, "end_char": 9904, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 10095, "end_char": 10106, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 10973, "end_char": 10984, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12A", "label": "PROVISION", "start_char": 11218, "end_char": 11229, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 11419, "end_char": 11429, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 11437, "end_char": 11464, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 11682, "end_char": 11691, "source": "ner", "metadata": {"in_sentence": "Ramaswami J. speaking for the Court observed :\n\n\"Section 34 in terms states that once the Income-tax Officer decides to reopen the assessment he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains."}}, {"text": "Section 34", "label": "PROVISION", "start_char": 11731, "end_char": 11741, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 22(2)", "label": "PROVISION", "start_char": 12002, "end_char": 12015, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 22", "label": "PROVISION", "start_char": 12238, "end_char": 12248, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 34(1)", "label": "PROVISION", "start_char": 12389, "end_char": 12402, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 19", "label": "PROVISION", "start_char": 12699, "end_char": 12709, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh General Sales Tax Act, 1958", "label": "STATUTE", "start_char": 12717, "end_char": 12759, "source": "regex", "metadata": {}}, {"text": "Hegde", "label": "JUDGE", "start_char": 12895, "end_char": 12900, "source": "ner", "metadata": {"in_sentence": "Hegde J. speaking for the Court observed :\n\n\"What is true of the assessment must also be true of reassessment because reassessment is nothing but a fresh assessment."}}, {"text": "section 19", "label": "PROVISION", "start_char": 13094, "end_char": 13104, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh General Sales Tax Act, 1958", "statute": "the Madhya Pradesh General Sales Tax Act, 1958"}}, {"text": "section 19", "label": "PROVISION", "start_char": 13383, "end_char": 13393, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh General Sales Tax Act, 1958", "statute": "the Madhya Pradesh General Sales Tax Act, 1958"}}, {"text": "International Cotton Corpn. (P) Ltd.", "label": "ORG", "start_char": 13817, "end_char": 13853, "source": "ner", "metadata": {"in_sentence": "In International Cotton Corpn. ("}}, {"text": "Alagiriswami", "label": "JUDGE", "start_char": 14215, "end_char": 14227, "source": "ner", "metadata": {"in_sentence": "Alagiriswami J. speaking for the Court in this context observed :\n\n\"The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance."}}, {"text": "Yaddalam", "label": "OTHER_PERSON", "start_char": 14547, "end_char": 14555, "source": "ner", "metadata": {"in_sentence": "What was sought to be rectified was the assessment order rectified as a consequence of this Court's decision in Yaddalam's case."}}, {"text": "section 33B", "label": "PROVISION", "start_char": 15281, "end_char": 15292, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 15300, "end_char": 15327, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 34", "label": "PROVISION", "start_char": 15413, "end_char": 15423, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 263", "label": "PROVISION", "start_char": 15466, "end_char": 15477, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Incometax Act, 1961", "label": "STATUTE", "start_char": 15485, "end_char": 15504, "source": "regex", "metadata": {}}, {"text": "section 147", "label": "PROVISION", "start_char": 15611, "end_char": 15622, "source": "regex", "metadata": {"linked_statute_text": "the Incometax Act, 1961", "statute": "the Incometax Act, 1961"}}, {"text": "article 226", "label": "PROVISION", "start_char": 15870, "end_char": 15881, "source": "regex", "metadata": {"linked_statute_text": "the Incometax Act, 1961", "statute": "the Incometax Act, 1961"}}]}
{"document_id": "1977_2_599_600_EN", "year": 1977, "text": "RETTI DEENABANDHU & ORS.\n\nSTATE OF ANDHRA PRADESH\n\nJanuary 11, 1977\n\n[H. R. KHANNA AND R. S. SARKARIA, JJ.]\n\nAppeal against conviction-Object of challenge to conviction-High Court should not decline to go into the validity of the conviction on the ground that the appellant is et at liberty, by set off under s. 428 of the Code of Criminal Procedure 1973 (Act 2 of 1974). ·\n\nThe appellants, upon conviction under the relevant sections of the Indian Penal Code, Explosive Substances Act and Arms Act, were sentenced to various terms of imprisonment. The total sentence of imprisonment to be undergone . C for some of the appellants was two years while in the case of other appellants it was one year. The High Court dismissed the appeal in view of the appellants' entitlement to set off the period of their pre-trial detention against the entire sentence of imprisonment imposed upon them after observing that it was not necessary to go into the matter as it would be only of an academic interest.\n\nAccepting the appeal by Special Leave and remanding the cases to the High Court for disposing of on merits, the Court, D\n\nHELD : ( 1) The High Court was in error in so far as it declined to go into the validity of the conviction of the appellants. [600 Fl\n\n(2) The object of a challenge to conviction is to avoid certain consequences flowing from conviction and also to erase the stigma resulting from the. conviction. The fact that the convicted person has already undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under detention during the course of investi- E gation, enquiry and trial cannot prevent the accused from challenging his conviction in appeal. [600 C-Fl\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 20 of 1977.\n\nAppeal by Special Leave from the Judgment and Order dated 28-2-75 of the Andhra Pradesh High Court in Crl. A. No. 462 of 1973.\n\nS. C. Agarwala and A. P. Gupta for the Appellants.\n\nP. P. Rao, G. N. Rao and T. V. S. N. Chari for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J. This appeal by special leave is against the judgment of G the Andhra Pradesh High Court dismissing the appeal filed by the appellants ..\n\nThe appellants were convicted by the Additional Sessions Judge Visakhapatnam for offences under sections 147, 148 and 352 Indian Penal Code. Some of the appellants were also convicted for offences under section 5 of the Explosive Substances Act and section 25 of the H Indian Arms Act. They were sentenced to various terms of imprison ment and the sentences were ordered to run concurrently. The total sentence of imprisonment to be undergone by some of the appellants was\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nA two years while in the case of the other appellants it was one year. The appellants went up in appeal to the High Court against the judgment of the trial court. The High Court referred to the fact that the appellants had been in custody during the course of the investigation, inquiry and trial, for about two years. The appellants were held entitled under section 428 of the Code of Criminal Procedure, 1973 to set off the period of detention against the sentence of imprisonment imposed upon B them. The High Court in veiw of the above dismissed the appeal after observing that it was unnecessary to go into the matter as it would be\n\nonly of an academic interest. '\n\nWe have heard Mr. Agarwala on behalf of the appellants and Mr.\n\nRao on behalf of the State, and are of the opinion that the judgment of the High Court in so far-as it has refrained from going into the merits of the conviction of the appellants, cannot be sustained. The fact that a convicted person has already undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under detention during the course of investigation, inquiry and trial cannot prevent the said person from challenging his conviction in appeal.\n\nConviction for an offence entails certain conse- ; quences.\n\nConviction also carries with it a stigma for the convicted person. A convicted person in challenging his convicticn in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be wiped out.\n\nIn case the convicted person undergoes the sentence of imprisonment imposed upon him or he is otherwise entitled to be set at liberty by the time his appeal against conviction comes up for hearing in view of the length of the period he was in detention during the course of investigation, inquiry or trial, such a person would still be entitled to challenge his conviction. The fact that he is set at liberty and would not have to undergo any further sentence of imprisonment would not debar him from questioning the validity of his conviction. The object of such a challenge to conviction is to avoid the other consequences flowing from conviction and aso to erase the stigma resulting from the conviction.\n\nThe High Court, in our view, was in error in so far as it declined to go into the validity of the conviction of the appellants.\n\nWe, therefore, remand the case to the High Court for disposing of the appeal of the appllants on merit. ,\n\ns. R..\n\nAppeal allowed and case remanded.", "total_entities": 27, "entities": [{"text": "RETTI DEENABANDHU & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "RETTI DEENABANDHU & ORS", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 26, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "January 11, 1977", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "STATE OF ANDHRA PRADESH\n\nJanuary 11, 1977\n\n[H. R. KHANNA AND R. S. SARKARIA, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 70, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "s. 428", "label": "PROVISION", "start_char": 309, "end_char": 315, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure 1973", "label": "STATUTE", "start_char": 323, "end_char": 354, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 442, "end_char": 459, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Explosive Substances Act and Arms Act", "label": "STATUTE", "start_char": 461, "end_char": 498, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "28-2-75", "label": "DATE", "start_char": 1873, "end_char": 1880, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated 28-2-75 of the Andhra Pradesh High Court in Crl."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 1888, "end_char": 1913, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated 28-2-75 of the Andhra Pradesh High Court in Crl."}}, {"text": "S. C. Agarwala", "label": "LAWYER", "start_char": 1943, "end_char": 1957, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and A. P. Gupta for the Appellants."}}, {"text": "A. P. Gupta", "label": "LAWYER", "start_char": 1962, "end_char": 1973, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwala and A. P. Gupta for the Appellants."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 1995, "end_char": 2004, "source": "ner", "metadata": {"in_sentence": "P. P. Rao, G. N. Rao and T. V. S. N. Chari for the Respondent."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 2006, "end_char": 2015, "source": "ner", "metadata": {"in_sentence": "P. P. Rao, G. N. Rao and T. V. S. N. Chari for the Respondent."}}, {"text": "T. V. S. N. Chari", "label": "LAWYER", "start_char": 2020, "end_char": 2037, "source": "ner", "metadata": {"in_sentence": "P. P. Rao, G. N. Rao and T. V. S. N. Chari for the Respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 2103, "end_char": 2109, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J. This appeal by special leave is against the judgment of G the Andhra Pradesh High Court dismissing the appeal filed by the appellants ..\n\nThe appellants were convicted by the Additional Sessions Judge Visakhapatnam for offences under sections 147, 148 and 352 Indian Penal Code."}}, {"text": "sections 147, 148 and 352", "label": "PROVISION", "start_char": 2348, "end_char": 2373, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2374, "end_char": 2391, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 2455, "end_char": 2464, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Explosive Substances Act", "label": "STATUTE", "start_char": 2472, "end_char": 2496, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25", "label": "PROVISION", "start_char": 2501, "end_char": 2511, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Arms Act", "label": "STATUTE", "start_char": 2521, "end_char": 2536, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 428", "label": "PROVISION", "start_char": 3125, "end_char": 3136, "source": "regex", "metadata": {"linked_statute_text": "Indian Arms Act", "statute": "Indian Arms Act"}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 3144, "end_char": 3176, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Agarwala", "label": "OTHER_PERSON", "start_char": 3456, "end_char": 3464, "source": "ner", "metadata": {"in_sentence": "We have heard Mr. Agarwala on behalf of the appellants and Mr.\n\nRao on behalf of the State, and are of the opinion that the judgment of the High Court in so far-as it has refrained from going into the merits of the conviction of the appellants, cannot be sustained."}}, {"text": "Rao", "label": "OTHER_PERSON", "start_char": 3502, "end_char": 3505, "source": "ner", "metadata": {"in_sentence": "We have heard Mr. Agarwala on behalf of the appellants and Mr.\n\nRao on behalf of the State, and are of the opinion that the judgment of the High Court in so far-as it has refrained from going into the merits of the conviction of the appellants, cannot be sustained."}}]}
{"document_id": "1977_2_601_603_EN", "year": 1977, "text": "HARGOVIND DAYAL SRIVASTAVA & ANR: v.\n\nG. N. VERMA & ORS.\n\nJanuary 12, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM, JJ.]\n\nContempt of Courts Act 1971-Criminal contempt-Duty of members of the bar to protect dignity and decorum of judiciary.\n\nThe appellant No. 1 is the President of the Oudh Bar and appellant No. 2 is the Chairman of Action Committee of the Oudh Bar Association. They met and passed a Resolution that the Chief Justice of Allahabad High Court was acting in a most partisan manner under the influence of the Allahabad Bar and that it was unbecoming of the office which he holds.\n\nThe High Court issued notices for contempt, inter alia, to the appellants.\n\nThe High Court discharged the notices but made certain observations against the appellants.\n\nHELD : 1. If the High Court found that there was any cqptempt it should have punished the appellants. The High Court confused criminal contempt with contumacious conduct.\n\nThis Court is unable to find that the High Court D found contemners guilty of criminal contempt.\n\n[602 D, G, HJ\n\n2. There is no gainsaying that the members of the Bar did not act with dignity in regard to the resolution. The language used by them was unfortu nate,.\n\nIt is the duty of lawyers to protect the dignity and decorum of the judiciary. If lawyers fail in their duty the faith of the people in the judiciary would be undermined to a large extent. It is said that lawyers are the custodian of civilization Lawyers have to discharge their duties with dignity, decomm and discipline.\n\n[603 C-D] E\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 315 of 1974.\n\nAppeal from the Judgment and Order dated 22-5-1974 of the Allahabad High Court in Contempt Case No. 43/73.\n\nD. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0. P.\n\nLal for the Appellants.\n\nYogeshwar Prasad, (Miss) Rani Arora, S. K. Bagga and (Mrs.)\n\nS. Bagga, for Respondent No. 1.\n\n0. P. Rana for Respondents 2 and 3.\n\nThe Judgment of the Court was delivered by\n\nRAY, C. J.\n\nThis appeal is against the judgment and order dated 22 May 1974 of the High Co1,1rt of Allahabad in Criminal Contempt Case No. 43 of 1973. .\n\nThe High Court issued notices to five persons on . the ground that they committed contempt of Court.\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nThe two appellants before us are the President of the Avadh Bar Association and the Chairman, Action Committee of the Avadh Bar Association.\n\nThere were three charges against the appellants. It is not necessary to refer in detail to the same. The gist of the charge against the appellants was that they had met and resolved that the Chief Justice was acting in a most partisan manner under the influence of the Allahabad Bar. The text of the resolution was this-\"The Action Committee is of the opinion that the Chief Justice is acting in the discharge of administrative power under clause 14 of the U.P. High Court's Amalgamation Order, 1948 in a most partisan manner under the influence of Allahabad Bar quite unbecoming of the office which he holds\".\n\nThe High Court discharged the notices .. The High Court yet made certain observations; some of which are confusing, some of which are conflicting and some of which are vague.\n\nIf the High_ Court found that there was any contempt it should have punished the appellants.\n\nThe High Court however discharged the notices.\n\nThe High Court held that the Cha.irman of the Action Committee, described as contemner No. 2 was actively associated with the passing of the resolution which contained disparaging remarks about the Chief Justice and since he also issued that resolution for publication in newspapers, he is guilty of 'Criminal Contempt'.\n\nThe High Court held that since the resolution was passed under the presidentship of the first appellant described as contemner No. 1, he is as much guilty of having committed contempt as contemner No. 2 was. ·\n\nThe High Court further held that contemners Nos. 1 & 2 are guilty of .:ontumacious conduct, and the High Court gave the ground that they were responsible for the passing of the resolution. At another place the High Court used words showing that the conduct of the appellants individually was considered only \"indiscreet\" by it.\n\nThe High Court confused 'criminal contempt' with 'contumacious conduct'.\n\nThe matter becomes clear when the High Court said \"we do not propose to punish contemners Nos. 1 & 2 for the contumacious conduct of which we have adjudged them guilty though we express our disapproval of that conduct and hope that the indiscretion will not be repeated\".\n\nWe are unable to find that the High Court found the contemners guilty of criminal contempt. It is true that the High Court referred to the contumacious conduct of the appellants but the High Court did not wish to proceed against the appe1lants. The High Court said on that aspect as follows :\n\nHARGOVIND DAYAL V G. N. VERMA (Ray, C. ].) 603\n\n\"It is a matter of regret that the contemners who are prominent members of the Avadh Bar, should have themselves embarked on the path of vilifying the Chief Justice of this Court and that we do not want to be over-sensitive in the matter, keeping in mind the surrounding circumstances in which the contumacious act was committed by them and also keeping in view the fact that it was. a single act of the Chief Justice for which the attack was made, we do not propose to punish contemners for the contumacious conduct for which we have adjudged them guilty, though we expres£ our strong disapproval of that conduct and hope that the indiscretion will not be repeated\".\n\nCounsel for the appellants did not justify the language of the resolution. There is no gainsaying that the members of the Bar did not act with dignity in regard to the resolution.\n\nThe language used by them was unfortunate.\n\nCounsel for the appellants rightly said that it was not proper and it should not have been passed in that manner.\n\nIt is the duty of lawyers to protect the dignity and decorum of the judiciary. If lawyers fail in their duty the faith of the people in the judiciary will be undermined to a large extent. It is said that lawyers are the custodians of civilisation.\n\nLawyers have fo discharge their duty with dignity, decorum and discipline. ·\n\nIn view of the fact that the notices were discharged, the appeal is disposed of with the foregoing observations.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 28, "entities": [{"text": "HARGOVIND DAYAL SRIVASTAVA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "HARGOVIND DAYAL SRIVASTAVA & ANR", "offset_not_found": false}}, {"text": "G. N. VERMA & ORS", "label": "RESPONDENT", "start_char": 38, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "G. N. VERMA & ORS", "offset_not_found": false}}, {"text": "January 12, 1977", "label": "DATE", "start_char": 58, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "January 12, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 77, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 94, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. s. KAILASAM, JJ.", "label": "JUDGE", "start_char": 108, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Contempt of Courts Act 1971", "label": "STATUTE", "start_char": 130, "end_char": 157, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 446, "end_char": 466, "source": "ner", "metadata": {"in_sentence": "They met and passed a Resolution that the Chief Justice of Allahabad High Court was acting in a most partisan manner under the influence of the Allahabad Bar and that it was unbecoming of the office which he holds."}}, {"text": "D. Mukherjea", "label": "PETITIONER", "start_char": 1724, "end_char": 1736, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "R. N. Sharma", "label": "LAWYER", "start_char": 1738, "end_char": 1750, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0.", "canonical_name": "R. N. Sharma"}}, {"text": "Umesh Chand", "label": "LAWYER", "start_char": 1752, "end_char": 1763, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "R. N. Trivedi", "label": "LAWYER", "start_char": 1765, "end_char": 1778, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "S. P.\n\nPathak", "label": "LAWYER", "start_char": 1780, "end_char": 1793, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "Hari Nath Tilhari", "label": "LAWYER", "start_char": 1795, "end_char": 1812, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "S. R. Srivastava", "label": "LAWYER", "start_char": 1814, "end_char": 1830, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "M. N. Sharma", "label": "LAWYER", "start_char": 1832, "end_char": 1844, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0.", "canonical_name": "R. N. Sharma"}}, {"text": "0. P.\n\nLal", "label": "LAWYER", "start_char": 1849, "end_char": 1859, "source": "ner", "metadata": {"in_sentence": "D. Mukherjea, R. N. Sharma, Umesh Chand, R. N. Trivedi, S. P.\n\nPathak, Hari Nath Tilhari, S. R. Srivastava, M. N. Sharma and 0."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 1881, "end_char": 1897, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, (Miss) Rani Arora, S. K. Bagga and (Mrs.)\n\nS. Bagga, for Respondent No."}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 1906, "end_char": 1916, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, (Miss) Rani Arora, S. K. Bagga and (Mrs.)\n\nS. Bagga, for Respondent No."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 1918, "end_char": 1929, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, (Miss) Rani Arora, S. K. Bagga and (Mrs.)\n\nS. Bagga, for Respondent No.", "canonical_name": "S. K. Bagga"}}, {"text": "S. Bagga", "label": "LAWYER", "start_char": 1942, "end_char": 1950, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, (Miss) Rani Arora, S. K. Bagga and (Mrs.)\n\nS. Bagga, for Respondent No.", "canonical_name": "S. K. Bagga"}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 1978, "end_char": 1985, "source": "ner", "metadata": {"in_sentence": "P. Rana for Respondents 2 and 3."}}, {"text": "RAY", "label": "JUDGE", "start_char": 2056, "end_char": 2059, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C. J.\n\nThis appeal is against the judgment and order dated 22 May 1974 of the High Co1,1rt of Allahabad in Criminal Contempt Case No."}}, {"text": "Avadh Bar Association", "label": "ORG", "start_char": 2406, "end_char": 2427, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nThe two appellants before us are the President of the Avadh Bar Association and the Chairman, Action Committee of the Avadh Bar Association."}}, {"text": "Allahabad Bar", "label": "ORG", "start_char": 2763, "end_char": 2776, "source": "ner", "metadata": {"in_sentence": "The gist of the charge against the appellants was that they had met and resolved that the Chief Justice was acting in a most partisan manner under the influence of the Allahabad Bar."}}, {"text": "clause 14", "label": "PROVISION", "start_char": 2934, "end_char": 2943, "source": "regex", "metadata": {"statute": null}}, {"text": "U.P. High Court", "label": "COURT", "start_char": 2951, "end_char": 2966, "source": "ner", "metadata": {"in_sentence": "The text of the resolution was this-\"The Action Committee is of the opinion that the Chief Justice is acting in the discharge of administrative power under clause 14 of the U.P. High Court's Amalgamation Order, 1948 in a most partisan manner under the influence of Allahabad Bar quite unbecoming of the office which he holds\"."}}, {"text": "Avadh Bar", "label": "ORG", "start_char": 5054, "end_char": 5063, "source": "ner", "metadata": {"in_sentence": "603\n\n\"It is a matter of regret that the contemners who are prominent members of the Avadh Bar, should have themselves embarked on the path of vilifying the Chief Justice of this Court and that we do not want to be over-sensitive in the matter, keeping in mind the surrounding circumstances in which the contumacious act was committed by them and also keeping in view the fact that it was."}}]}
{"document_id": "1977_2_604_605_EN", "year": 1977, "text": "MAHABIR BEOPAR MANDAL LTD v.\n\nFORWARD MARKET COMMISSION\n\nJanuary 13, 1977\n\n[A. N. RAY, C.J. AND M. H. BEG, J.]\n\nForward Cr-111ract (Regulation) Act 1952-Secs. 14A, 14B- Forward Market Commission-Power to impose conditions.\n\nThe appellants contended that the Forward Market Commission under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration. Secondly, the provisions. contained in s. 4 of the Act do not confer power on the Commission to impose conditions.\n\nThirdly, in respect of recognised associations, the Commission bad' no power to impose conditions with regard to commodities in which they deal.\n\nDismissing the appeal,\n\nHELD : All the 3 conditions raised in the present appeal are covered' against the appellant by the decision of this Court in the case of Union of India v. Mis Rajdhani Grain and laggery Exchange Ltd. reported in [19751 Supp, SCR 1.\n\n[605 B-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 873 of 1975 ..\n\n(From the Judgment and Order dated 11-11-1974 of the Allahabad High Court in Civil Misc. Writ Petition No. 6976/74)\n\nAND Civil Appeal No. 1748 of 1975.\n\n(Appeal by Special Leave from the Judgment and Order dated 8-11-1974 of the Allahabad High Court in Civil Misc. Writ Petition No. 6932/74).\n\nAND Civil Appeal No. 1425 of 1974.\n\n(From the Judgment and Order dated 1-9-1972 of the Allahabad High Court in Special Appeal No. 8/66).\n\nA. N. Parekh, for the appellants in CA 1748/75.\n\nYogeshwar Prasad, for the appellants in CA 873/75.\n\nD. N. Misra for the appellant in CA 1425/74.\n\nL. N. Sinha, Solicitor General, S. N. Prasad (In CA 873/75) and: Girish Chandra, for the respondents in all the appeals.\n\nThe Judgment of the Court was delivered.by\n\nRAY, C.J.\n\nCivil Appeals Nos. 873 and 1425 areby certificate under Article 133 (1) of the Constitution of India and Civil Appeal No. 1748 is by special leave.\n\nMAHABIR BEOPAR MANDAL V. FORWARD MARKET COMMISSION 605 (Ray, C.J.) These appeals turn on the question whether the Commission described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose conditions under section 14-A and Section 14-B on the commodities in respect of which business can be carried on by persons who apply for registration.\n\nThis Court in Union of India & Anr. v. Mis. Rajdhani Grains and Jaggery Exchange Ltd. & Ors. (1975 Supp. S.C.R. l) dealt with B this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition concerned with the regulation and control of the business relating to forward contracts. It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration wi11 deal.\n\nAnother contention was raised before us that the .provisions contained in Section 4 of the Forward Contract (Regulation) Act 1952 do not confer power on the Commission to impose conditions.\n\nThis contention is also repelled by the decision of this Court to which reference has already been made. It has been held in that case that the Commission alone is vested with power to impose conditions in regard D to commodities in respect of which forward contracts can be entered into by a particular association. Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which business of forward contract can be carried on.\n\nAnother contention was advanced before us that with regard to the E recognised associations the Commission had no power to impose conditions with regard to commodities in which they deal. This contention is also answered by the decision of this Court (supra). Further the provisions contained in Chapter III-A specifically deal with registration of all associations concerned with regulation and control of forward contracts and the power of the Commission to grant or refuse such certificate of registration.\n\nAll contentions advanced by the appellants are already answered by the decision of this Court (supra) and the observations made herein. The appeals are .therefore dismissed, There will be no order as to, costs.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 22, "entities": [{"text": "MAHABIR BEOPAR MANDAL LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "MAHABIR BEOPAR MANDAL LTD", "offset_not_found": false}}, {"text": "FORWARD MARKET COMMISSION", "label": "RESPONDENT", "start_char": 30, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "FORWARD MARKET COMMISSION", "offset_not_found": false}}, {"text": "January 13, 1977", "label": "DATE", "start_char": 57, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "MAHABIR BEOPAR MANDAL LTD v.\n\nFORWARD MARKET COMMISSION\n\nJanuary 13, 1977\n\n[A. N. RAY, C.J. AND M. H. BEG, J.]\n\nForward Cr-111ract (Regulation) Act 1952-Secs."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG, J.", "label": "JUDGE", "start_char": 96, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Forward Market Commission", "label": "ORG", "start_char": 258, "end_char": 283, "source": "ner", "metadata": {"in_sentence": "The appellants contended that the Forward Market Commission under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration."}}, {"text": "sections 14A and 14B", "label": "PROVISION", "start_char": 364, "end_char": 384, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 530, "end_char": 534, "source": "regex", "metadata": {"statute": null}}, {"text": "A. N. Parekh", "label": "LAWYER", "start_char": 1517, "end_char": 1529, "source": "ner", "metadata": {"in_sentence": "A. N. Parekh, for the appellants in CA 1748/75."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 1566, "end_char": 1582, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad, for the appellants in CA 873/75."}}, {"text": "D. N. Misra", "label": "LAWYER", "start_char": 1618, "end_char": 1629, "source": "ner", "metadata": {"in_sentence": "D. N. Misra for the appellant in CA 1425/74."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 1664, "end_char": 1675, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General, S. N. Prasad (In CA 873/75) and: Girish Chandra, for the respondents in all the appeals."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 1696, "end_char": 1708, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General, S. N. Prasad (In CA 873/75) and: Girish Chandra, for the respondents in all the appeals."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 1729, "end_char": 1743, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General, S. N. Prasad (In CA 873/75) and: Girish Chandra, for the respondents in all the appeals."}}, {"text": "RAY", "label": "JUDGE", "start_char": 1830, "end_char": 1833, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered.by\n\nRAY, C.J.\n\nCivil Appeals Nos."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 1897, "end_char": 1908, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 1920, "end_char": 1941, "source": "regex", "metadata": {}}, {"text": "MAHABIR BEOPAR MANDAL V. FORWARD MARKET COMMISSION 605", "label": "JUDGE", "start_char": 1990, "end_char": 2044, "source": "ner", "metadata": {"in_sentence": "MAHABIR BEOPAR MANDAL V. FORWARD MARKET COMMISSION 605 (Ray, C.J.) These appeals turn on the question whether the Commission described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose conditions under section 14-A and Section 14-B on the commodities in respect of which business can be carried on by persons who apply for registration."}}, {"text": "section 14", "label": "PROVISION", "start_char": 2237, "end_char": 2247, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 2254, "end_char": 2264, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 3031, "end_char": 3040, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 15 to 18", "label": "PROVISION", "start_char": 3465, "end_char": 3482, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_606_610_EN", "year": 1977, "text": "KALUMIYA KARIMMIYA v.\n\nSTATE OF GUJARAT AND ORS.\n\nJanuary 14, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\n. l:and Acquisition Act 1894-Secs. 4, SA, 6-Reasonable opportunity in znquzry under sec. SA-Whether collector bound to give copy of the report submuted to Government to the owner of land-Effect of not giving the copy- Delay between sec. 4 & 6 notifications-Effect of-What is unreasonable delay-Vagueness of s, 4 notification. ·\n\nA notification was issued under section 4 ( 1) of the Land Acquisition Act ~894 n 7.6.1966 intending to acquire a total area of 13,900 sq. yds of land mc!.udmg 474. sq: yards of the appellant's land in Surat City. After considermg the obiecl!ons under s. SA a notification under section 6 was issued on\n\n13.1.1~69. _The _appellat filed a writ petition in the High Court challenging the said nolificalio~ which was summarily dismissed.\n\nTh,\\l High Court, however, grai:ited a rllficate ul'l:der Art. 133(1) (b) & (c) of the Constitution on the question of vzres of sect10ns 4, SA and 6 of the said Act.\n\nAppellant contended :\n\n( 1) In spite of the appellant's request for furnishing a copy of the report under s. SA the Collector did not give him a copy and, therefore, he did not have adequate and proper hearing under _s. SA.\n\n(2) There was considerable delay between the notification under sections 4 and 6. ·\n\n(3) Notification under s. 4 does not contain the public purpose as the requirement for \"fire station\". The notification merely mentions \"station workshop and parking purpose.\"\n\nDismissing the appeal,\n\nHELD : (1) Ordinarily there should be no difficulty in furnishing a copy of the report under s. SA to an object.or when he asks for the same. However, it is not a correct proposition that hearing under s. Sb is invalid because of failure to furnish a copy of the report at the conclusion of the proceeding under the said Act.\n\n[608 F-G]\n\n(2) A second hearing by the State Government after the report is furnished by the Collector is not necessary.\n\n[608-H]\n\nAbdul Husein Tayabali & Ors. v. State of Gujarat & Ors. [1968] (1) SCR S97, followed.\n\n(3) Since other dags of land belonging to numerous persons were the subject matter of acquisition and individual objections had to be heard there was no inordinate delay in making the section 6 notification. Even the appellant has not submitted before the High Court a copy of his written objection. Nor has the same been produced in this Court with the result that one does not know how much delay was caused by the appellant himself. )\"he delay in the present case is about 2t years and there is not even a clear statement of the appel\\ant about delay to be attributable to the Government. [609 B-b]\n\n( 4) Submission that s. 4 notification does not contain the public purpose is made on the basis of the copy of the notification anne; xed in. the pap_er book.\n\nEven in the 5tatement of case the appellant has not raised this obiectton. On\n\nthe other hand it was conceded that the purpose was fire station, workshop A and parking place and the objection was that the appellant's l and was not suitable for construction of fire station. [609E-F]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2731 of 1972.\n\n(From the Judgment and Order dated 20-11-1970 of the Gujarat High Court in Special Appeal No. 1247 /70).\n\nVimal Dave and Miss Kailash Mehta, for the appellant.\n\nD. V. Patel and M. N. Shroff, for respondent No. 1.\n\nL. N. Sinha, Sol. Genl and Girish Chandra, for respondent No. 2.\n\nK. C. Vakharia, P. H. Parekh and! Miss Manju Jetley, for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J.-This appeal by certificate under Article 132 (1) (b) and ( c) of the Constitution is from the judgment of the Gujarat High Court. The certificate was granted on October 21, 1972, before coming into force of the Constitution (Thirtieth Amendment) Act, 1972.\n\nMr. Dave, learned counsel for the appellant, does not press before us the challenge to the validity of sections 4, SA and 6 of the Land Acquisition Act, 1894.\n\nWe will now state the facts as will appear from the statement of case filed on behalf of the appellant.\n\nA notification was issued under section 4(1) of the Land Acquisition Act, 1894 (briefly the Act) on June 7, 1966, intending to acquire a total area of 13900 sq. yds of land including 474 sq. yds. of the appellant's land in Ward No. 11 of Surat City included in City Survey Nos. 236S and 2366.\n\nWe are informed that only the appellant in raising objection to the acquisition and the plan has not yet been implemented on account of the pending litigation.\n\nThe appellant submitted his objections under section SA ( 1) of the Act to the Collector who gave him a hearing under sub-section (2) of section SA.\n\nIn. due course the Collector submitted his report to the State Government and after consideration of the same the Government issued a declaration under section 6 on January lS, 1969, that the land was required for the public purpose noted in the preliminary notification under section 4.\n\nThe apellnt in para 3 of the statement of case while referring to the not1ficat1on under section 4(1) of the Act averred as follows:-\n\n\"It was stated in the said notice that the suit lands wen: likely to be needed for fire station, workshop and parking purpose of the Surat Municipality as indicated in Govern~ ment Notification dated 7-6-1966;,.\n\nIn para 4 o~ the said statement it was averred ''that the appellant c?ntested the notice _by raising an. objection that the respondent No. 3-the Corporat10n-was not m need of the suit land for the purpose of the fire station, etc.\" After the declaration under scc- C , tion 6 of the Act, .as stated earlier, a notice under section 9 of the Act was served on the appellant but he did not submit any claims with regard to compensation under that section.\n\nOn Septemb.:r 22, l 970, the appellant filed an application under Article 226 or the Constitution before the High Court of Gujarat challenging the aforesaid notifications under the Act. . The High Court by its order of November 30, 1970, rejected the petition.\n\nThe High Court, how- D ever, by its order of October 21, 1 972, granted certificate under Article 133(1) (bl and (c) of the Constitution on, the question of vires of sections 4, SA and 6 of the Land Acquisition Act.\n\nMr. Dave confines his submissions before us only to the following points, which we will deal with seriatim :\n\nFirst, that in spite of the appellant's reques~ for furnishing a copy of the report under section SA the Collector did not grant him a copy.\n\nHe complains that there was no proper and adequate hearing under section SA(2l of the Act.\n\nAccording to the learned counsel a proper hearing would include furnishing of a copy of the report under section SA.\n\nWe are unable to accept this submission.\n\nAlthough, ordinarily, there should be no difficulty in furnishing a copy of the report under section SA to an objector, when he asks for! the same, it is not a correct proposition that hearing under section SA is invalid because of failure to furnish a copy of the report at the conclusion of tlie hearing under the said section.\n\nUnless there are weighty reasons, a report in public enquiry like this, should be available to the persons who take part in the enquiry.\n\nBut failure to furnish a copy of the report of such an enquiry cannot vitiate the enquiry if it is otherwise not open to any valid objection.\n\nApart from this solitary ground, our attention has not been drawn to any infirmity in the hearing under section SA.\n\nWe are, therefore unable to hold that the said enquiry under section SA was invalid. .\n\nThe matter would have been different if a second enquiry were essential under the law at the stage when the State Government was considering the report under section SA for issuing its declaration under section 6 of the Act.\n\nWe are, however, clearly of op1111on that there is no reason to hold that a second hearing by the State Government at that stage is necessary under section 6 of the A.Ct,\n\n(See Abdul Husein Tayabali & Ors. v. State of Gujarat & Ors.(') Since that is the position in law, failure to furnish a copy of the report under Syctjon 8A is innocuous.\n\nThe matter, again, may be different if there is a proper allegation of ma/a fide against the Collector or the State Government.\n\nThere is no such allegation in this case.\n\nThe first submission of the learned counsel is, therefore, devoid of substance.\n\nThe learned counsel next contends that there was considerable delay between the notification under section 4 which was issued on June 7, 1966, and the declaration under section 6 ma, de on January 13, 1969.\n\nSince numerous dags of land belonging to a number of persons were the subject matter of acquisition and individual objections had to be heard, we do not think that there has been anv inordinate delay in making the notification.\n\nEven, the appellant has not submitted before the High Court a copy of his written objection nor is the same produced before us to indicate when his objections were actually filed and whether he was not also responsible for some delay in the conclusion of the enquiry.\n\nThe delay in this case is only about 2t years and, as we have said, there is not even a clear statement of the responsibility for delay which may be attributable to the Government.\n\nThe second submission of the learned counsel is also of no avail.\n\nMr. Dave lastly submits that the notification under section 4 did not contain the public purpose as the requirement for \"fire station\".\n\nThe notification, says counsel, mentioned station, workshop and parking purpose.\n\nHe is able to make this submission from a copy E of the notification in the Paper Book° at page 20 (Ex. A). We are, however, unable to agree with counsel that the notification under sectiO'll 4 did not in fact contain the purpose as fire station.\n\nEven in the statement of easer of the appellan~ whic~ we have set out earlier, no objection was ever taken against the so-called vague description Of the requirement in the notification.\n\nOn the other hand, it was conceded, therein, that the purpose was fire station, workshop and F parking purpose and the objection was that the appellant's land was not \"suited for the construction of fire station\".\n\nThere is, therefore, no substance in this submission.\n\nThis Court rather liberally grants prayers for dispensing with -statement of case when such requests are made by P!lrties. lndeed, the fonn in vogue, in which statements of case are submitted in this G Court, has perhaps outlived its practical utility in hearings before this Court. If anything, besides being expensive, it causes delay in making appeals ready for hearing.\n\nWe, however, feel, instead of the usual statements of case bv both the parties, a very succinct statement of case and a list of dates submitted by the appellant alone. with material facts necessary H for deciding the questions of law together with the findings of fact\n\n(I) [1968] 1 S.C.R. 597.\n\nA of the court below and pinpointing the only legal issues to be raised in this Court will be of advantage in expeditious disposal of appeals before this Court.\n\nFor once, on occasion, we are able to say that the statement of case in this appeal is of use to us in visiting the appellant with the forfeiture of his right to make his last submission with regard to the B vagueness or ambiguity of the purpose mentioned in the notification under section 4 of the Act.\n\nAll the submissions having failed, the appeal is dismissed. Having regard to the fact that there was a certificate by the High Court, we will make no order as to costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 52, "entities": [{"text": "KALUMIYA KARIMMIYA", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "KALUMIYA KARIMMIYA", "offset_not_found": false}}, {"text": "STATE OF GUJARAT AND ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT AND ORS", "offset_not_found": false}}, {"text": "January 14, 1977", "label": "DATE", "start_char": 50, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "January 14, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 69, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Acquisition Act 1894", "label": "STATUTE", "start_char": 117, "end_char": 137, "source": "regex", "metadata": {}}, {"text": "sec. 4 & 6", "label": "PROVISION", "start_char": 341, "end_char": 351, "source": "regex", "metadata": {"linked_statute_text": "Acquisition Act 1894", "statute": "Acquisition Act 1894"}}, {"text": "section 4", "label": "PROVISION", "start_char": 470, "end_char": 479, "source": "regex", "metadata": {"linked_statute_text": "Acquisition Act 1894", "statute": "Acquisition Act 1894"}}, {"text": "Surat City", "label": "GPE", "start_char": 640, "end_char": 650, "source": "ner", "metadata": {"in_sentence": "sq: yards of the appellant's land in Surat City."}}, {"text": "section 6", "label": "PROVISION", "start_char": 717, "end_char": 726, "source": "regex", "metadata": {"linked_statute_text": "Acquisition Act 1894", "statute": "Acquisition Act 1894"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 932, "end_char": 943, "source": "regex", "metadata": {"linked_statute_text": "Acquisition Act 1894", "statute": "Acquisition Act 1894"}}, {"text": "sections 4 and 6", "label": "PROVISION", "start_char": 1330, "end_char": 1346, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1374, "end_char": 1378, "source": "regex", "metadata": {"statute": null}}, {"text": "S97", "label": "PROVISION", "start_char": 2081, "end_char": 2084, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 2281, "end_char": 2290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 2721, "end_char": 2725, "source": "regex", "metadata": {"statute": null}}, {"text": "Vimal Dave", "label": "PETITIONER", "start_char": 3312, "end_char": 3322, "source": "ner", "metadata": {"in_sentence": "Vimal Dave and Miss Kailash Mehta, for the appellant."}}, {"text": "Kailash Mehta", "label": "LAWYER", "start_char": 3332, "end_char": 3345, "source": "ner", "metadata": {"in_sentence": "Vimal Dave and Miss Kailash Mehta, for the appellant."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 3367, "end_char": 3378, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and M. N. Shroff, for respondent No."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 3383, "end_char": 3395, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and M. N. Shroff, for respondent No."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 3420, "end_char": 3431, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 3447, "end_char": 3461, "source": "ner", "metadata": {"in_sentence": "Genl and Girish Chandra, for respondent No."}}, {"text": "K. C. Vakharia", "label": "LAWYER", "start_char": 3486, "end_char": 3500, "source": "ner", "metadata": {"in_sentence": "K. C. Vakharia, P. H. Parekh and!"}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 3502, "end_char": 3514, "source": "ner", "metadata": {"in_sentence": "K. C. Vakharia, P. H. Parekh and!"}}, {"text": "Manju Jetley", "label": "LAWYER", "start_char": 3525, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "Miss Manju Jetley, for respondent No."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 3606, "end_char": 3613, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGoswAMI, J.-This appeal by certificate under Article 132 (1) (b) and ( c) of the Constitution is from the judgment of the Gujarat High Court."}}, {"text": "Article 132", "label": "PROVISION", "start_char": 3651, "end_char": 3662, "source": "regex", "metadata": {"statute": null}}, {"text": "Dave", "label": "OTHER_PERSON", "start_char": 3880, "end_char": 3884, "source": "ner", "metadata": {"in_sentence": "Mr. Dave, learned counsel for the appellant, does not press before us the challenge to the validity of sections 4, SA and 6 of the Land Acquisition Act, 1894."}}, {"text": "sections 4", "label": "PROVISION", "start_char": 3979, "end_char": 3989, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 4007, "end_char": 4033, "source": "regex", "metadata": {}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 4173, "end_char": 4185, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 4193, "end_char": 4219, "source": "regex", "metadata": {}}, {"text": "section 6", "label": "PROVISION", "start_char": 4898, "end_char": 4907, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "January lS, 1969", "label": "DATE", "start_char": 4911, "end_char": 4927, "source": "ner", "metadata": {"in_sentence": "due course the Collector submitted his report to the State Government and after consideration of the same the Government issued a declaration under section 6 on January lS, 1969, that the land was required for the public purpose noted in the preliminary notification under section 4."}}, {"text": "section 4", "label": "PROVISION", "start_char": 5023, "end_char": 5032, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 5124, "end_char": 5136, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "section 9", "label": "PROVISION", "start_char": 5706, "end_char": 5715, "source": "regex", "metadata": {"statute": null}}, {"text": "Septemb.:r 22, l 970", "label": "DATE", "start_char": 5840, "end_char": 5860, "source": "ner", "metadata": {"in_sentence": "On Septemb.:r 22, l 970, the appellant filed an application under Article 226 or the Constitution before the High Court of Gujarat challenging the aforesaid notifications under the Act. ."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 5903, "end_char": 5914, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 5946, "end_char": 5967, "source": "ner", "metadata": {"in_sentence": "On Septemb.:r 22, l 970, the appellant filed an application under Article 226 or the Constitution before the High Court of Gujarat challenging the aforesaid notifications under the Act. ."}}, {"text": "November 30, 1970", "label": "DATE", "start_char": 6056, "end_char": 6073, "source": "ner", "metadata": {"in_sentence": "The High Court by its order of November 30, 1970, rejected the petition."}}, {"text": "October 21, 1 972", "label": "DATE", "start_char": 6144, "end_char": 6161, "source": "ner", "metadata": {"in_sentence": "The High Court, how- D ever, by its order of October 21, 1 972, granted certificate under Article 133(1) (bl and (c) of the Constitution on, the question of vires of sections 4, SA and 6 of the Land Acquisition Act."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 6189, "end_char": 6203, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 4", "label": "PROVISION", "start_char": 6265, "end_char": 6275, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 7840, "end_char": 7849, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 8011, "end_char": 8020, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 8558, "end_char": 8567, "source": "regex", "metadata": {"statute": null}}, {"text": "June 7, 1966", "label": "DATE", "start_char": 8588, "end_char": 8600, "source": "ner", "metadata": {"in_sentence": "The learned counsel next contends that there was considerable delay between the notification under section 4 which was issued on June 7, 1966, and the declaration under section 6 ma, de on January 13, 1969."}}, {"text": "section 6", "label": "PROVISION", "start_char": 8628, "end_char": 8637, "source": "regex", "metadata": {"statute": null}}, {"text": "January 13, 1969", "label": "DATE", "start_char": 8648, "end_char": 8664, "source": "ner", "metadata": {"in_sentence": "The learned counsel next contends that there was considerable delay between the notification under section 4 which was issued on June 7, 1966, and the declaration under section 6 ma, de on January 13, 1969."}}, {"text": "section 4", "label": "PROVISION", "start_char": 9466, "end_char": 9475, "source": "regex", "metadata": {"statute": null}}, {"text": "[1968] 1 S.C.R. 597", "label": "CASE_CITATION", "start_char": 10988, "end_char": 11007, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 11454, "end_char": 11463, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_611_618_EN", "year": 1977, "text": "REV. STA:INISLAUS\n\nSTATE OF MADHYA PRADESH & ORS.\n\nJanuary 17, 1977\n\n{A N. RAY, c. J.; M. H. BllG, R. s. SARKARIA, p, N. SHJNGHAL AND\n\n. •\n\nJASWANT SINGH, JJ.]\n\nConstitution of India-Article 25(1)-Freedom of re/igion-Rig; zt to profess-Practice and propogate religion-Whether forcible and fraudulent conversion included-Public order-Meaning of-Seventh Schedule List II Entry 1-Madhya Pradesh Dharnia Swatantraya Adhlnivam 1968-0rissa Freedom of Religion Act 1967-Constitutional validity of.\n\nThe constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa. The two Acts prohibit forcible conversion and make the offence punishable. The Madhya Pradesh High Court upheld the validity of the Act. The Orissa High Court held that Art. 25 ( 1) of the Constitution guarantees propogatj.on of religion and conversion 1s a part of Christian religion; that the State Legislature has no power to enact the impugned legislation which in pith and substance is a law relating to religion; and that entry 97 of List I would apply.\n\nUpholding the validity of both the Acts,\n\nHELO.: ( 1) Article 25 guarantees to all persons right to fr.eedom and conscience and the right freely to profess, pract.ice and propogate religion subject to public order, morality and health.\n\nThe word 'propogate' has beel'l used in the Article as meaning to transmit or spread from person to person or .from place to place. The Article does not grant right to convert other person to one's own religion but to transmit or spread one's religion by an exposition of its tenets.\n\nThe freedom of religion .enshrined in Art. 25 is not guaranteed in respect of one religion ol)ly but covers all religions alike which can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following other religion.\n\nWhat is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one's own religion.\n\n[616 B-F, 617 A-BJ\n\n(2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of force, allurement or fraudulent means and matters incidental thereto. Si!Jlilarly, the Orissa Act prohibits conversion by the use of force or by inducemen.t or by any fraudulent means.· Both the statutes, therefore, clearly provide for the maintenanee of public order because if forcible conversion had not been prohibited that would have created public disorder in the States.\n\nThe expression \"public order\" has a wide connotation.\n\n[617 C-E]\n\nRatilal Pc.11achand Gandhi v. The State of Bombay & Ors. [1954]\n\nS.C.R. 1055; Ramesh Thappar v. The State of Madras [1950] S.C.R. 594; Ramiilal Modi v. State of U.P. [1957] S.C.R. 860 and Arun Ghosh v. State of West Bengal [1966] I S.C.R. 709, followed.\n\n{3) If an attempt is made to raise communal passions, e.g. on the .ground that someone has been forcibly converted to another. religion it would in all\n\nH . probability give tise to an apprehe~&lon of a breach of the nublic. o:der effecting ·!he community at large. The impugned Acts therefore fall w1thm the ourview of Entry I of List II of the Seventh Schedule as they are meant to avoid\n\n5-112SCI/77\n\ndisturbaD:ce to the public order by prohibiting conversion from one religion to another m a manner r.eprehensible to the. conscience of the community. The two Acts d.o i:ot provide for the regulat10n of religion and do not fall under Entry 97 of Lm I. [618 A-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal N 1489 & 1511 of 1974.\n\nOS.\n\n(Appeals by certificate/Special Leave from the Judgment and Order dated 23-4-1974 of the Madhya Pradesh 'High Court in Misc\n\nPetition No. 136/73). ·\n\nCriminal Appeal No. 255 of 1974.\n\n(From the Judgment and Order dated 23-4-1974 of the Madhya c Pradesh High Court in Criminal Revision No. 159/71) and\n\nCivil Appeal Nos. 344-346 of 1976.\n\n(Appeals by Special Leave from the Judgment and Order dated 24-10-1972 of the Orissa High Court in C.J.C. 185, 186 and 217 of 1969).\n\nFrank Anthony, in CA 1489, Crl. A. 255/74 and CA 346/76 for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in 'CAs 346/76.\n\nSoli J. Sorabjee in CA 1511, Crl. A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in CAs 346/76.\n\nGobind Das (In CAs 344-346/76) B. Parthasarthi, for the appellants in CAs 344-346/76.\n\nSoli J. Sorabjee, B. P. Maheshwari and Suresh Sethi, for R. 3 in\n\nCA 346/76.\n\nBrijbans Kishore, B. R. SabharwaJ, for RR. in CA 345/76.\n\nGobind Das, Raj Kumar Mehta, for the Intervener (State Orissa) in C.A. 1489/74.\n\nThe Judgment of the Court was delivered by\n\nof ~\n\nRAY, C. J.-These appeals were hear~ together ?ecause they raie common questions of law relating to the mterpretat1on of the Constitution.\n\nCivil Appeals No. 1489 and 1511 of.1974 and Criminal Appeal No. 255. of 1974 are directed against a Judgment of the Madhya \"Pradesh High Court dated. 23 Apil: 1974. We shall refer to these as the Madhya Pradesh cases .. CIVIi .Appeals No. 344-346 of 1976 relate to a judgment of the Orissa High Court d.ated 24 October,\n\n1972. We shall refer tc:dhese _appeals as the Onssa cases.\n\nThe controversy in the Madhya Pradesh .case~ relates to the\n\nA-- Madhya Pradesh Dharina Swatantraya Adhiniyam, 1968, hereinafter referred . to. as the Madhya Pradesh Act. . The controversy in . the Orissa cases arises out of the Orissa Freedom. , of Religion Act, 1967 hereinafter referred to as the Orissa Act\n\nThe provisions of the 'two Acts. in so far as they relate to prohibition of forcible conversion and punishment therefor, are similar\n\nB' and the questions which have been raised before us are common to 1'oth of them.\n\nIt will, therefore, be enough, for the purpose of appreciating the controversy, to make a som.ewhar'detailed mention of the facts of th\\l Madhya Pradesh case. . . . .\n\nThe Sub-Divisional Magistrate of. Baloda-Bazar sanctioned the pro\"secution of Rev. Stainislaus for the commission of offences under C i:ections 3, 4 and 5 (2) of the Madhya Padesh Act.\n\nWhen the case came up before Magistrate, First-Class, Baloda-Bazar, the appellant Rev. Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry I of. List If and Entry I of Li.st III of the Seventh Schedule.\n\nThe appellant's contention . was D t'hat it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature.\n\nAn objection was also raised that the provisions of sections 3, 4 and $ (2) of the Act contravened Article 25 of the Constitution and were -roid.\n\nThe Magistrate took the view that there was no force in the objection and did not refer the case to the High Court under soction 432 of the Code of Criminal Procedure, 1898.\n\nThe appellant applied to the Additional Sessions Judge . for a revision of the Magistrate's order refusing to make. a reference to the High Court.\n\nThe Additional Sessions Judge also t08k the view that no question of constitutional importance arose in the case and he did not think it necessary to mak61 a reference to the High Court.\n\nThe appellant thereupon applied to the High Court for revision nnder section 439 of the Code of Criminal Procedure and he also filed ll petition under Articles 226 and 227 of the Constitution. ·\n\nThe High Court heard both the revision and the writ .petition together.\n\nThe appellant raised the following three questions in the High Court :-\n\n. G\n\n(i) that sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantraya Adhiniyam, 1968 are violat:ve of the petitioner's fundamental rights guaranteed by Article 25 ( 1) of the Constitution of India;\n\n(ii) that in exercise of powers conferred by Entry No. 1 . of List II, read with Entry No. 1 of List III of the H Seventh Schedule the Madhya Pradesh Legislature in the name of pubc order could not have enacted\n\nthe said legislation. But the matter would fall within the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parliament to legislate in respect of any matters not covered by List I, List II or List III.\n\nTherefore it is contended that Parliament alone had the powe; to legislate on this subject and the legislation enacted by the State Legislature is ultra vires the powers. of the State legislature;\n\n(iii) that section 5(1) and section 5(2) of the M. P.\n\nDharma Swatantraya Adhiniyam, 1968 amount to testimonial compulsion and, therefore, the said provisions are violative q:f Article 20(3) of the Constitution of India.\n\nThe High Court examined the controversy with reference to the relevant provisions of the Madhya Pradesh Act and the Madhya Pradesh Dharma SWatantraya Rules, 1969 and held as follows:-\n\n\"what is penalised is conversion by force, fraud' or by allurement.\n\nThe other element is that every person has a right to profess his. own religion and to act according to it.\n\nAny interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, in our opinion, .be said to contravene Article 25 ( 1) of the Constitution of India, as the Article guarantees religious freedom subject to public health.\n\nAs such, we do not find that the provisions of sect.ions 3, 4 and 5 of the M. P.\n\nDharma Swatantraya Adhiniyam, 1968 are violative of Article 25 (1) of the Constitution of India.\n\nOn the other hand. it guarantees that religious freedom to one and all including those who might be amenable to conversion by force, fraud or allurement. As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual.\"\n\nThe High Cour~ therefore held that there was no justifi1; ation for the argument that sections 3, 4 and 5 of the Madhya Pradesh Act were violative of Article 25.( 1) of the Constitution.\n\nThe High Court in fact went on to hold that those sections \"establish the equality of religious freedom for all citizens by prohibiting conversion bv objectionable activities such as conversion by force, fraud and by allurement\".\n\nAs regards the question of legislative competence, the High Court took note of some judgments of this Court and held that as \"the phrase 'public order' conveys a wider .connotaion as laid don bv their Lordships. of the Supreme Court m the different cases.\n\nWe are of the opinion that the subject matter of the Madhya Pradesh Dharma Swa•atJt.raya A<lhinivam. 1968 falls within the scope of Entry No. I of List lI of the Seventh Schedule! relating to the State List regarding public order\".\n\n. ~\n\nREV. STAINISi,.\\US v. MADHYA PRA{)ESH (Ray, C.J.) 615\n\nOn the remaining point relating to testimonial compulsion with reference to Article 20(3) of the Constitution, the High Court held • that section 5 of the Madhya Pradesh Act read with Form A, pres cribed by the Rules, merely made provision for the giving of intimation to the District Magistrate about conversion and did not require its maker to make a confession of any offence as to whether the conversion had been made on account of fraud, force or allurement, which had been penalised by the Act.\n\nThe High Court thus held that mere giving of such information was not violative of Article 30(1) of the Constitution.\n\nBut the question of testimonial coinpul sion within the meaning of Article 20(3) of the Constitution has not been raised for our consideration.\n\nThe Orissa cases arose out of petitions under Article 226 of the c Constitution challenging the vires of the Orissa Act.\n\nThe High Court stated its conclusions in those cases as follow$.:-\n\n( 1) Article 25 ( 1) guarantees propagatio~ of religion and conversion is a part of thei Christian religion.\n\n{2) Prohibition of conversion by 'force' or by 'fraud' as defined by the Act would be covered by the limitation subject to which the right is guaranteed under_ Article 25 (1) .\n\n(3) The definitionof the term 'inducement' is vague, and many proselytizing adivities may .be covered by the definition and the restriction in Article 25 ( 1 ) cannot be said to cover the wide definition.\n\n( 4) The State Legislature has no power to enact the impugned legislation which in pith and substance is a law relating to religion. Entry No. 1 of either List II. or List III does not authorise the impugned legislation.\n\n(5) Entry 97 of List I applies. ·.The High Court has therefore declared the Orissa Act to be ultra vires the Constitution and directed the issue of mandamus to the State Government not to give effect to it.\n\nThe criminal cases which were pending have been quashed,\n\nThe common questions which have been raised for our considera- l:ioi:J: are (ll whether the two Acts were violative of the Jun(:!amenta:I G right guaranteed under Article 25 (1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ?\n\nArticle 2.5 (1) of the Constitution reads as foUows :\n\n\"25 ( 1) Subject to public order, morality and health and to the other provisions of this Part, all personsare H eauallv entitled to freedom of comcie1ice and the right freely to profess, practise and 'propagate reli~ gion.\" \" · - ;: ·\n\n. SUPREME COURT RiPORTS [1977] 2 s.c.R..\n\n, cou~l for the appellant has argued 'that the right to 'propagate'\n\noe s rehg10n mean~ the nght to convert a person. to one's own reli- • g10n.\n\nOn that basis, counsel has argued further that the right to convert a person fo one's own rel:gion is a fundamental right guaranteed by Article 25 ( 1) . of the Constitution. ·\n\nThe expression 'propagate' has a number of meanings, including \"to multiply specimens of (a plant, animal, disease etc.) by any process of atural reproduction from the parent stpck\", but that cannot, for obv10us reasons, be the meaning for purposes of Article 25 ( l) of the Constitution.\n\nThe Article guarantees a right to freedom of religion, and the expression 'propagate' cannot therefore be said to have been used in a biological sense.\n\nThe expression 'propagate .. has been defined in the Shorter Oxford Dictionary. to mean \"to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)\".\n\nAccording to the Century Dictionary (which is an Encylopaedic Lexicon of the English Language) Vol. VI, 'propagate' means as follows:-\n\n\"To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as to propagate a report; to propagate the Christian religion\".\n\nWe have no doubt that it is in this sense that the word 'propagate' has been used in Article 25 ( 1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25 ( 1) guarantees \"freedom of conscience\" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundame:atal right to convert another person to one's own religio11. because if a\n\nperson purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread th1 tenets of his religion, that would impinge on the \"freedom of comcience\" guaranteed to all tho citizens of the country .alike.\n\nThe meaning of guarantee under Article 25 of tho Constitution came up for consideration in this Court in Ratilal Panachand Gandhi T.\n\nThe State of Bombay & Ors.(1) and it was held as follows:-\n\n\"Thus, subject to the restrictions which this Article imposes, every person has a furidamental right under our Constitution not merely to entertain such religiom• belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt act~ as are enjoined or sanctioned by his religion and further to propagate his religiom views for the ediftcation of others.\" ------ ·-·-- (!) [1954] S.Cl't. 10~5.\n\nThis Court has given the correct meaning of the Article, and we find no justilication for the view that it grants a fundamental right to convert persons to one's own religion. . It. has to be appreciated that the freedom of religion enshrined in the' Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions.\n\nWhat is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion.\n\nIt was next been argued by counsel that the Legislatures of Madhya Pradesh and Orissa States did not have legislative competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'religion' and fall under the Residuary Entry 97 in List I of the Seventh.Schedule to the Constitution.\n\nIt is .ot in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to another by use of force or allurement, or by fraudulent means, and matters incidental thereto.\n\nThe expressions \"allurement\" and 'fraud' have been defined by the Act.\n\nSection 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 penalises such forcible conversion.\n\nSimilarly, section 3 of the Orissa Act p;:ohibits forcible conversion by . the use of force or by inducement or by any fraudulent means, and section 4 penalises such forcible conversion.\n\nThe Acts therefore clearly provide for the maintenance of public order for, i£ forcible conversion had not been prohibited, that would have created public disorder in the States.\n\nThe expression \"Public order\" is of wide connotation.\n\nIt must have_ the connotation which it is meant to provide as the very first Entry in List II. It has been held by this Court in Ramesh Thapper v. The Statt1 of Madra3(') that \"public order\" is, an expression of wide connotation and signifies state of tranquillity which prevails among the members of a political society as a result of internal regulation~ enforced by the Government which they have established\".\n\nReference may also be made to the decision in Ramjilal Modi v.\n\nState of U. P. (') where this Court has held that the right of freedom of religion guaranteed by Articles 25 and 26 of the Constitution is expressly maqe subject to public order, morality and health, and that\n\n\"it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public 01der\". It has been held that these two Article's in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.\n\nReference may as well be made to the decision in Arun Ghosh v. State of West Benga1C) where it has been held that if a thing disturbs the current of the life of the community,\n\n(1) (1950) S.CR. 594.\n\n(2) (1957) S.C.R. 860.\n\n(3) [1966) I S.C.R. 709.\n\nand does_ not merely affect an individual, it would amount to disturbance of the public order.\n\nThus if an attempt is made to raise communal passions, e.g. on the ground that some one. has been \"forcibly\" converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. 'f!ie impugned Acts therefore fall within the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner repi:ehensible to the conscience of the community. The two Acts do not provide for the regulation of religion and' we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.\n\nIn the result Civil Appeals No. 1489 and 1511 of 1974 and.\n\nCriminal Appeal No. '255 of 1974 fail and are <Iismissed while Civil Appeals No. 344-346 of 1976 are allowed and the impugned judgment of the Orissa High Court dated 24 October, 1972 is set aside.\n\nThe parties shall pay and bear their own costs, in Madhya Pradesh appeals.\n\nThe State shall pay the respondent costs in the Orissa appeal according to previous direction.\n\nP.H.P.\n\nC.As. Nos. 1489 & 1511 of 1974 amt\n\nCr.. '1. No. 255 of 1974 dismissed.\n\nC.As. Nos. 344-346 of 1976 allowed.", "total_entities": 86, "entities": [{"text": "REV. STA:INISLAUS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "REV. STAINISLAUS", "offset_not_found": false}}, {"text": "STATE OF MADHYA PRADESH & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH & ORS", "offset_not_found": false}}, {"text": "January 17, 1977", "label": "DATE", "start_char": 51, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "January 17, 1977\n\n{A N. RAY, c. J.; M. H. BllG, R. s. SARKARIA, p, N. SHJNGHAL AND\n\n. •"}}, {"text": "A N. RAY", "label": "JUDGE", "start_char": 70, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "R. s. SARKARIA", "label": "JUDGE", "start_char": 99, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 140, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 161, "end_char": 182, "source": "regex", "metadata": {}}, {"text": "Article 25(1)", "label": "PROVISION", "start_char": 183, "end_char": 196, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 344, "end_char": 360, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Freedom of Religion Act 1967", "label": "STATUTE", "start_char": 434, "end_char": 462, "source": "regex", "metadata": {}}, {"text": "High Court of Orissa", "label": "COURT", "start_char": 727, "end_char": 747, "source": "ner", "metadata": {"in_sentence": "The constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 828, "end_char": 853, "source": "ner", "metadata": {"in_sentence": "The Madhya Pradesh High Court upheld the validity of the Act."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 890, "end_char": 907, "source": "ner", "metadata": {"in_sentence": "The Orissa High Court held that Art."}}, {"text": "Art. 25", "label": "PROVISION", "start_char": 918, "end_char": 925, "source": "regex", "metadata": {"linked_statute_text": "the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967", "statute": "the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 1264, "end_char": 1274, "source": "regex", "metadata": {"linked_statute_text": "the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967", "statute": "the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967"}}, {"text": "Art. 25", "label": "PROVISION", "start_char": 1770, "end_char": 1777, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 3344, "end_char": 3360, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3665, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "The two Acts d.o i:ot provide for the regulat10n of religion and do not fall under Entry 97 of Lm I. [618 A-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal N 1489 & 1511 of 1974."}}, {"text": "Frank Anthony", "label": "OTHER_PERSON", "start_char": 4210, "end_char": 4223, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, in CA 1489, Crl."}}, {"text": "Soli J. Sorabjee", "label": "LAWYER", "start_char": 4364, "end_char": 4380, "source": "ner", "metadata": {"in_sentence": "Soli J. Sorabjee in CA 1511, Crl.", "canonical_name": "Soli J. Sorabjee"}}, {"text": "J. B. Dadachanji", "label": "JUDGE", "start_char": 4408, "end_char": 4424, "source": "ner", "metadata": {"in_sentence": "A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl."}}, {"text": "K. J. /ohn,", "label": "JUDGE", "start_char": 4426, "end_char": 4437, "source": "ner", "metadata": {"in_sentence": "A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl."}}, {"text": "O. C. Mathur", "label": "LAWYER", "start_char": 4439, "end_char": 4451, "source": "ner", "metadata": {"in_sentence": "A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4456, "end_char": 4471, "source": "ner", "metadata": {"in_sentence": "A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl."}}, {"text": "Gobind Das", "label": "PETITIONER", "start_char": 4569, "end_char": 4579, "source": "ner", "metadata": {"in_sentence": "Gobind Das (In CAs 344-346/76) B. Parthasarthi, for the appellants in CAs 344-346/76."}}, {"text": "B. Parthasarthi", "label": "LAWYER", "start_char": 4600, "end_char": 4615, "source": "ner", "metadata": {"in_sentence": "Gobind Das (In CAs 344-346/76) B. Parthasarthi, for the appellants in CAs 344-346/76."}}, {"text": "Soli J. Sorabjee", "label": "LAWYER", "start_char": 4656, "end_char": 4672, "source": "ner", "metadata": {"in_sentence": "Soli J. Sorabjee, B. P. Maheshwari and Suresh Sethi, for R. 3 in\n\nCA 346/76.", "canonical_name": "Soli J. Sorabjee"}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 4674, "end_char": 4690, "source": "ner", "metadata": {"in_sentence": "Soli J. Sorabjee, B. P. Maheshwari and Suresh Sethi, for R. 3 in\n\nCA 346/76."}}, {"text": "Suresh Sethi", "label": "LAWYER", "start_char": 4695, "end_char": 4707, "source": "ner", "metadata": {"in_sentence": "Soli J. Sorabjee, B. P. Maheshwari and Suresh Sethi, for R. 3 in\n\nCA 346/76."}}, {"text": "Brijbans Kishore", "label": "LAWYER", "start_char": 4734, "end_char": 4750, "source": "ner", "metadata": {"in_sentence": "Brijbans Kishore, B. R. SabharwaJ, for RR."}}, {"text": "B. R. SabharwaJ", "label": "LAWYER", "start_char": 4752, "end_char": 4767, "source": "ner", "metadata": {"in_sentence": "Brijbans Kishore, B. R. SabharwaJ, for RR."}}, {"text": "Raj Kumar Mehta", "label": "LAWYER", "start_char": 4804, "end_char": 4819, "source": "ner", "metadata": {"in_sentence": "Gobind Das, Raj Kumar Mehta, for the Intervener (State Orissa) in C.A. 1489/74."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4923, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nof ~\n\nRAY, C. J.-These appeals were hear~ together ?"}}, {"text": "Religion Act, 1967", "label": "STATUTE", "start_char": 5693, "end_char": 5711, "source": "regex", "metadata": {}}, {"text": "Sub-Divisional Magistrate of. Baloda-Bazar", "label": "COURT", "start_char": 6145, "end_char": 6187, "source": "ner", "metadata": {"in_sentence": "The Sub-Divisional Magistrate of."}}, {"text": "Stainislaus", "label": "OTHER_PERSON", "start_char": 6224, "end_char": 6235, "source": "ner", "metadata": {"in_sentence": "Baloda-Bazar sanctioned the pro\"secution of Rev. Stainislaus for the commission of offences under C i:ections 3, 4 and 5 (2) of the Madhya Padesh Act."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 6687, "end_char": 6703, "source": "regex", "metadata": {"linked_statute_text": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act", "statute": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act"}}, {"text": "Parliament", "label": "ORG", "start_char": 6792, "end_char": 6802, "source": "ner", "metadata": {"in_sentence": "was D t'hat it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature."}}, {"text": "sections 3, 4", "label": "PROVISION", "start_char": 6923, "end_char": 6936, "source": "regex", "metadata": {"linked_statute_text": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act", "statute": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 6970, "end_char": 6980, "source": "regex", "metadata": {"linked_statute_text": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act", "statute": "Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 7158, "end_char": 7190, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 439", "label": "PROVISION", "start_char": 7598, "end_char": 7609, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7617, "end_char": 7643, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 7680, "end_char": 7700, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "sections 3, 4, 5", "label": "PROVISION", "start_char": 7885, "end_char": 7901, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 8027, "end_char": 8037, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 8050, "end_char": 8071, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8188, "end_char": 8204, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 8384, "end_char": 8400, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 5(1)", "label": "PROVISION", "start_char": 8740, "end_char": 8752, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 8757, "end_char": 8769, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the 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9765, "source": "regex", "metadata": {}}, {"text": "sections 3, 4 and 5", "label": "PROVISION", "start_char": 10187, "end_char": 10206, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 10251, "end_char": 10261, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 10739, "end_char": 10752, "source": "ner", "metadata": {"in_sentence": "of the Supreme Court m the different cases."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 10939, "end_char": 10955, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 20(3)", "label": "PROVISION", "start_char": 11146, "end_char": 11159, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 5", "label": "PROVISION", "start_char": 11208, "end_char": 11217, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 30(1)", "label": "PROVISION", "start_char": 11655, "end_char": 11668, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 20(3)", "label": "PROVISION", "start_char": 11758, "end_char": 11771, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 11882, "end_char": 11893, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution challenging the vires of the Orissa Act", "label": "STATUTE", "start_char": 11903, "end_char": 11955, "source": "regex", "metadata": {}}, {"text": "Article 25", "label": "PROVISION", "start_char": 12031, "end_char": 12041, "source": "regex", "metadata": {"linked_statute_text": "Constitution challenging the vires of the Orissa Act", "statute": "Constitution challenging the vires of the Orissa Act"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 12296, "end_char": 12306, "source": "regex", "metadata": {"linked_statute_text": "Constitution challenging the vires of the Orissa Act", "statute": "Constitution challenging the vires of the Orissa Act"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 12457, "end_char": 12467, "source": "regex", "metadata": {"linked_statute_text": "Constitution challenging the vires of the Orissa Act", "statute": "Constitution challenging the vires of the Orissa Act"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 13171, "end_char": 13181, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 2", "label": "PROVISION", "start_char": 13278, "end_char": 13287, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 13894, "end_char": 13904, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 14188, "end_char": 14198, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 14987, "end_char": 14997, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 15200, "end_char": 15210, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 25", "label": "PROVISION", "start_char": 15755, "end_char": 15765, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "State of Bombay", "label": "GPE", "start_char": 15862, "end_char": 15877, "source": "ner", "metadata": {"in_sentence": "The meaning of guarantee under Article 25 of tho Constitution came up for consideration in this Court in Ratilal Panachand Gandhi T.\n\nThe State of Bombay & Ors.(1) and it was held as follows:-\n\n\"Thus, subject to the restrictions which this Article imposes, every person has a furidamental right under our Constitution not merely to entertain such religiom• belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt act~ as are enjoined or sanctioned by his religion and further to propagate his religiom views for the ediftcation of others.\" ------ ·-·-- (!) ["}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 17096, "end_char": 17110, "source": "ner", "metadata": {"in_sentence": "It was next been argued by counsel that the Legislatures of Madhya Pradesh and Orissa States did not have legislative competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'religion' and fall under the Residuary Entry 97 in List I of the Seventh."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17647, "end_char": 17656, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 17749, "end_char": 17758, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 17807, "end_char": 17816, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 17937, "end_char": 17946, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 25 and 26", "label": "PROVISION", "start_char": 18795, "end_char": 18813, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 20031, "end_char": 20047, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 20387, "end_char": 20403, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_619_620_EN", "year": 1977, "text": "STATE OF MADHYA PRADESH & ORS.\n\nGALLA TILHAN VY AP ARI SANGH & ORS.\n\nJanuary 17, 1977\n\n[S. MuRTAZA FAZAL Au AND P. S. KArLASAM, JJ.]\n\nMadhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972, S. 37(5)(a), co1t<1titutiona/ validity of-Whether unreasonable to commission agents.\n\nThe respondents challenged the constitutional validity of s. 37(5)(a) of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972, before the High Court on the ground that it places unreasonable restriction on the commission agent and puts a great burden on him for storing the goods given to him by his principal, without charging the commission for its safe custody. The plea was accepted and the High Court struck down the impugned provision as unconstitutional.\n\nAllowing the appeal by Special Leave, the Court,\n\nHELD : Section 3 7 ( 5 )(a) is constitutionally valid and there is no hardship\n\nor unreasonableness in it. The provision prevents the commission agent from D levying any additional charges from the farmer or the principal for safe custody of the goods, but s. 37(4) of. the Act compensates him by authorising him to charge not. only his commis:!io\"n from th~ principal trader, but also the expenses incurred by him for the purpose of storing the produce, and .the services rendered by him.\n\n[620 D, E, G] ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1912-1914 of 1976.\n\n(Appeal by special Leave from the Judgment and order dated 7-2-1975 of the Madhya Pradesh High Court in Misc.\n\nPetition No. 231174 and 685 and 732173 respectively.)\n\nI. N. Shroff and H. S. Parihar, for the appellants.·\n\nS. K. Gambhir, for respondents Nos. 1 and 2.\n\nThe Judgment of the Court was delivered by\n\nFA~AL Au, J.\n\nIn this appeal by special leave, on an appication filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitutional \".\"alidity of sub-s. (5)(a)\n\nof s. 37 of the Madhya Pradesh Krislti Upaj Mandi Adhiniyam, 1?72 -hereinafter referred to as 'the Act'-(No. 24 of 1973).\n\nThe impugned sub-section runs as follows : ' ' ...\n\n\" ( 5) Every commission agep.t shall be liable-:-;\n\nto keep the gods' of' his. pr_inc; ipal 'in ·. sfe: custody . without any charge other than the comm1s~1on payable to him; and\"\n\n620.\n\nSUPREME COURT REPORTS [1977] 2 s.c.R.\n\nThe High. C:ourt thought that this statutory provision places unreasonale res.tncton on the comission agent and pu!B great burden on ~1m for storm~ 'f!he good.s given to him by the principal without chargrng. the. comm1ss1on for its safe custody. The Act is a social piece of\n\nleg1slaton and should have been liberally construed so as' to advance the. obiect of the Act and fulfil the aims to be achieved thereby.\n\nThe mam purpose of the Act is to secure a scientific method of storage, sale, distribution and marketing of agricultural produce and cut out\n\na~ far. as possible middle-man's profit.\n\nThe Act, therefore, contains prov!S!ons of a beneficial nature preventing profiteering tendencies. It is not, however, the hardship that can be termed unreasonable so as to make a statute unconstitutional.\n\nMoreover, the High Court does not appear to have looked to the scheme of the Act and has in fact completely overlooked the ptovisions of s. 3 7 ( 4) which runs as follows : .\n\n\" ( 4) The commission agent shall recover his commission only from his principal trader at such rates as may be specified in the bye-laws including all such expenses as may be incurred by him in storage of the produce and other services rendered by him.\"\n\nThis section clearly empowers the commission agent to charge such rates as may be specified by the bye-laws even for the storage of the\n\nProduce and other services rendered by him.\n\nThis provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission.\n\nAll that the Act prevenffi is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal.\n\nThis is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for\n\nafe custody.\n\nSection 37 ( 4), however, compensates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him.\n\nThis\n\nection, therefore, clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose or the storage.\n\nThat apart s. 2(e) of the Act which defines a \"Commission agent\" empowers him to charge any commission or percentage upon the amount involved in\n\nuch transaction.\n\nFor these reasons, therefore, we do not see any hardship or unreasonablenei& in the provisions df s. 3 7 ( 5) (a) of the Act.\n\nThe High Court, therefore, committed an error of law in striking down this proviion as unconstitutional.\n\nIn our opinion, therefore, s .. 3_7 (5)(a) of the Act is constitutionally valid. In the view we take, 1t is not necessary to 80 into the question whether the law violates Art. 19 of the CoI111titution which stands suspended during the emergency.\n\nThe lilppeal is accordingly allowed.\n\nThe order of the High Court is quashed.\n\nIn the circumstances, there will be no order as to costs.\n\nM.R.\n\nAppeal allowed.", "total_entities": 17, "entities": [{"text": "STATE OF MADHYA PRADESH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH & ORS", "offset_not_found": false}}, {"text": "GALLA TILHAN VY AP ARI SANGH & ORS", "label": "RESPONDENT", "start_char": 32, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "GALLA TILHAN VYAPARI SANGH & ORS", "offset_not_found": false}}, {"text": "January 17, 1977", "label": "DATE", "start_char": 69, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "January 17, 1977\n\n[S. MuRTAZA FAZAL Au AND P. S. KArLASAM, JJ.]"}}, {"text": "S. 37(5)(a)", "label": "PROVISION", "start_char": 184, "end_char": 195, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37(5)(a)", "label": "PROVISION", "start_char": 328, "end_char": 339, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 790, "end_char": 799, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37(4)", "label": "PROVISION", "start_char": 1040, "end_char": 1048, "source": "regex", "metadata": {"statute": null}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 1527, "end_char": 1539, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar, for the appellants.·"}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 1544, "end_char": 1557, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar, for the appellants.·"}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 1581, "end_char": 1594, "source": "ner", "metadata": {"in_sentence": "S. K. Gambhir, for respondents Nos."}}, {"text": "FA~AL Au", "label": "JUDGE", "start_char": 1671, "end_char": 1679, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFA~AL Au, J.\n\nIn this appeal by special leave, on an appication filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitutional \".\"alidity of sub-s. (5)(a)\n\nof s. 37 of the Madhya Pradesh Krislti Upaj Mandi Adhiniyam, 1?72 -hereinafter referred to as 'the Act'-(No."}}, {"text": "s. 37", "label": "PROVISION", "start_char": 1879, "end_char": 1884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3220, "end_char": 3224, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 37", "label": "PROVISION", "start_char": 4137, "end_char": 4147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(e)", "label": "PROVISION", "start_char": 4587, "end_char": 4594, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4838, "end_char": 4842, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 5144, "end_char": 5151, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_621_625_EN", "year": 1977, "text": "RANCHHODDAS CHHAGANLAL\n\nDEVAJI SUPADU DORIK AND ORS.\n\nlanuary 17, 1977\n\n[A. N. RAY, C.J., M. R BEG AND JASWANT SINGH, JJ.]\n\nTransfer of Property Act, 1882_:Sec. 53A-Doctrine of part performance- Whether transferee should be ready and willing to perform-Indian Penal Code-Finding without issue-Not sustainable-Cross objection-If judgment can be challenged by respondent without filing cross objection.\n\nArticle 133 of Constitution-Practice and procedure-Objection about validity of grant of certificate-To be raised at what stage .\n\n. ,1 The appellant agreed to sell certain land to the respondents by an agreement for sale entered into between t):ie parties for Rs. 17,000/-. The respondent was put in possession pursuant to the said agreement after Rs. 12,000/- were paid.\n\nHe failed to pay the balance of Rs. 5,000/- in spite of demand by the appellant The appellant filed a suit for possession of the land and, in the alternative, for a decree for Rs. 5,000/- with interest.\n\nThe respondent contended that the agreed price was Rs. 12,000/- which wa~ already paid and that, therefore, Rs. 5,000 /- were not payable. The resoondent contended that if the court came to the conclusion that Rs. 17,000/- was the agreed price then the Court should take into account certain amount which was already paid by the respondent.\n\nThe Trial Court _decreed the appellant's suit for possession and came to th1 conclusion that the agreed price was Rs. 17,000/-. The High Court in an E appeal confirmed the finding of the Trial Court that the agreed price wai Rs. 17,000/-. The High Court, however, granted the decree of Rs. 5,000 /- with interest but refused the prayer for possession.\n\nAllowing the appeal,\n\nHELD : ( 1) The respondent was. never ready and willing to perform the aireement as alleged by the appellant: One of the ingredients of part performance under s. 53A of the Transfer of Property Act is tliat the transferee has F taken possession in part performance of the contract. In the present case, there was ncr performance in part by the respondent of the contract between the parties.\n\nThe doctrine of part performance is a defence. It i• generally not a sword but a shield. The act of part performance must be such a• not only to be referable to acontract such as that alleged but to be referable to no other title Section 53A requires a positive act of readiness and willingness on the part of the transferee to perform the agreement.\n\n[624 A-E]\n\n(2) The High Court wrongly found that there was an extension of the per- G formance of the contract by one year. There was no issue rai•ed on that point. It is well settled that there should be specific issues on question• of fact.\n\nThe contention that the appellant could not put an end to the contract if ther• was failure on the part of the respondent to perform the agreement is fallacious.\n\n[ 624 F-G]\n\n(3) It was not open to the resoondent to challenge the findin~ of the Hfh Court that the agreement was for Rs. 17.000/-. The respondent can certainly H\n\nunnort the iudgment on anv ground which is onen to him under the imn1rnned\n\njudgment. The respondent did not file any cross-obiection on the ftndin~ in the\n\njudment of High Court about the nrice of the agreement. It 11, therefore, not open to him to challe11ge the finding.\n\n[623 G-H]\n\nA ( 4) The contention of the respondent that certificate was not competent because the value all along had not been over Rs. 20,000/- cannot be allowed t!' be taken at the late stage. If the respondent had taken this point at the t1e when the. matter was heard in the High Court the appelliint could have sausfied the High Court. Such a plea was not raised even in the statement of case. [623 D-Fl\n\nStare of Assain and Anr. etc. v. Basanta Kumar Dass etc. etc. (1973] (3}> S C.R. 158, followed.\n\n' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 945 of 1972.\n\n(From the Judgment and Decree dated 15-10-1969 of the Bombay High Court in First Appeal No. 420163). ·\n\nV. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·\n\nSharad Manohar and Suresh Sethi, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate from the judgment dated 15·0ctober 1969 of the Bombay High Court in First Appeal No. 420 of 1963.\n\nThe trial court by its judgment dated 24 June 1963 decreed the suit in favour of the appellant.\n\nThe High Court reversed the judgment of the trial court.\n\nThe pre-eminent question in this appeal is. whether the respondent has been ready and willing to perform the agreement entere<l into with the appellant.\n\nThe case of the appellant is that there was an oral agreement for sale of property consisting of agricultural land admeasuring 23 acres approximately for a sum of Rs. 170001-.\n\nThe respondent from time to time paid Rs. 120001to the appellant.\n\nThe respondent was also in possession of the property.\n\nThe appellant called upon the respondent to pay the full amount of purchase price.\n\nThe respondent failed to do so.\n\nThe nlaintiff, on respondent's refusal to perform the agreement, filed the suit.\n\nIn the suit the reliefs claimed were possession of the propertv and in the alternative a decree for Rs. 10,5001oomisting of the orinclnal sum of Rs. 50001as the b; ilanc<'\" amount of purchase price and interest thereon amounting to Rs. 55001-.\n\nThe. princioa1 defence was that the agreement for sale was only for Rs. 12000/-, and that the respondent paid the amount in full.\n\nThe respondent characterised /the suit as 'mean Pffort to recover illegally the additional prjce of the os1ensible Rs. 5000/-_'.\n\nThe respondent alsoalleged that if the f'n11rt drdded that the nnce of the nroperty was agreed to be Rs. 170001-, then the respondent wi:iuld a~~ the Court to take into account the sum of Rs. 12000/- paid bv h1m and\n\nalso the sum of Rs. 15001paid by him from time to time therea.fter.\n\n..\n\nAt the trial one of the issue$ was whether the appellant proved A -that llhe respondent entered into a 'Sauda' on 24 January 1952 with the appellant's father to purchase for Rs. 17000/- the properties men tioned in Schedule 'A' to the plaint.\n\nThe other issues were whether the defendant-respondent proved that the properties were agreed to be purchased for Rs. 120001-.\n\nA corolilary to the issue raised in the written statement was whether defendant proved llhe circumstances in which it was made to appear that the 'Sauda' was for Rs. 170001-.\n\nB In short the defendant alleged fraud against . the appellant.\n\nThe <:barge is that the appellant changed the figure to Rs. 17000/-.\n\nThe trial court held in favour of the appellant and rejected the defence .of .the respondent. -\n\nCounsel for the respondent contended that the suit of the appellant was not maintainable.\n\nIt was said that the appellant was not compNent to maintain the suit by reason of provisions contained in sections .39 and 55 of the Indian Contract Act.\n\nThe gist of the contention IS that the appellant could not put an end to the contract if there was failure on part of the respondent to perform the agreement.\n\nThe sub- .mission is fallacious.\n\nThe case of the appellant has always been that\n\nthe respondent refused to perform the agreement.\n\nThe appellant all .along asserted that the agreement was that the property was agreed .to be sor.d only for a sum of Rs. 170001-.\n\nThe respondent refused to perform the agreement.\n\nThe suit therefore was competent and valid. ·\n\nAnother contention was raised by the respondent that the certificate was not competent because the value all along has not been over Rs. 20000/-.\n\nThis Court has held in the decision in State of Assam and A 11r. Etc. v. Basanta Kumar Dass Etc. Etc. reported in 1973\n\n(3) S.C.R. 158 at page 168 that the objection to valuation cannot be allowed to be t?keill at this late stage.\n\nBut the graver objection to the respondent not being allowed to challenge the certificate is that if the respondent had taken this point at the time when the matter was heard in the High Court the appellant could have satisfied the High Court or the appeilant would have failed.\n\nThis Court in any event, if a c.ertificate h:i, d been granted on a challenge being made, would have been in posse1Ssion of facts anti the judgment of the High Court on that question.\n\nThat is the main reason why the respondent should not be allowed to challenge the certificate at this stage.\n\nThe respondent has also not raised such a plea in the statement of case.\n\n\" D\n\nThe remaining question is one of substance and is the real issue.\n\nIt is whether the agreement has been performed.\n\nCounsel for the G respondent submitted that it was open to the respondent to contend that the finding of the High Court that t1he agreement was for Rs. 17000/- should not be acc.epted.\n\nCounsel for the appellant rightly challenged the competency_ of such an objection.\n\nThe respondent can certainly support the judgment o nany ground which is . open to him under impugned judgment.\n\nThe judgment is that the agreement was between 11he parties, and that the sale price was Rs.\n\nH 17000/-. The respondent did not file any cross objection on the finding in judgment on that point.\n\nIt is therefore not open to the respondent to challenge that finding.\n\nThe principal hurdle in the way of the resporn; lent .is . that the respondent has never been ready and willing to perform the agreemen~, as .alleged by the appellant.\n\nThe respondent. alleged that the cons1derat10n for purchase was Rs. 12000/-. The respondent has never been ready and willing to perform the agreement alleged by the appellant.\n\nThe respondent relied on the doctrine of part-performance.\n\nOne of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property.\n\nThe most important consideration here is the contract. The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged.\n\nThe doctrine of part performance is a defence. It is a sword and nqt a shield. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract.\n\nTho appellant is right in the contention that there was never any performance in part by the respondent of the contract between the parties.\n\n_ In Fry on. Specific Performance, Sixth Edition, at page 276 it is 1tated that \"the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to be referable to no other title; and that the acts relied upon as part performanctJ must be unequivocally and in their own nature referable to some such agreement as that alle&ed\". ·\n\nThe High Court found that the respondent performed in part th<J agreement alleged by the appellant.\n\nIt has been said by the appellant that the High Court should have appreciated that Section\n\n53-A requires a positive act of readiness and willingness on part of the transferee to perform the agreement.\n\nIn the present case the respondent who was the transferee under the agreement did not perform his part of the contract from 1952 till 1963 that\" is after the judgment\n\nwas pr.:>nounced by the trial court.\n\nThe High Court wrongly found that tJhere was an extension of the performance of contract by ono year.\n\nThere was no issue raised on that point.\n\nIt is well settl<:d that there should be specific issues on questions of\" fact.\n\nParties did not go to trial on that question and there the High Court was in error in holding that there was an extension of time for performance of the contract.\n\nIt is therefore erroneous to say as the High Court did that\n\n- the respondent can take advantage of the period between 1953-54.\n\nSome attempt was :niade by counsel for the respondent that thrCJ was an admission bv the appellant's father that the purchase pnce was Rs. 12000/-. This contention cannot be accepted in vi\"Y-7 of the finding of the High Court that the puchase price was Rs. 17000 /-.\n\nOne of the questions in the High Court was ere should be o award of interest on the sum of Rs. 5000 /- which had been paid.\n\nThe High Court rightly allowed interest at the rate of 6 per cent yer\n\nannum.\n\nWe are told the amount of Rs. 5000/- has been deposited in the High Court.\n\nFor the foregoing reasons we are satisfied that the decree passed A by the trial court was correct and the High Court was in error in reversing the decree.\n\nThe High Court should not have reversed the . decree particularly when it was found that the respondent failed first in regard to the agreement alleged by the defendant_ and second in allowing the decree in favour of the respondent on the plea of par~ performance of a contract which was never pleaded by the defern; lant/\n\nrespondent and was not a contract upon which there could be any B performance in part.\n\nThe appeal is therefore accepted.\n\nThe Judgment of the High Court is set aside.\n\nThe judgment of the trial court is restored. Parties will pay and bear their own costs in this Court and the High Court.\n\nThe respondent will be at liberty to withdraw Rs. 5000/- depoited in the High Court.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 21, "entities": [{"text": "RANCHHODDAS CHHAGANLAL", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "RANCHHODDAS CHHAGANLAL", "offset_not_found": false}}, {"text": "DEVAJI SUPADU DORIK AND ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "DEVAJI SUPADU DORIK AND ORS", "offset_not_found": false}}, {"text": "lanuary 17, 1977", "label": "DATE", "start_char": 54, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "lanuary 17, 1977\n\n[A. N. RAY, C.J., M. R BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 73, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. R BEG", "label": "JUDGE", "start_char": 90, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 103, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 124, "end_char": 154, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 53A", "label": "PROVISION", "start_char": 156, "end_char": 164, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act, 1882", "statute": "Transfer of Property Act, 1882"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 253, "end_char": 270, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 133", "label": "PROVISION", "start_char": 402, "end_char": 413, "source": "regex", "metadata": {"linked_statute_text": "Doctrine of part performance- Whether transferee should be ready and willing to perform-Indian Penal Code", "statute": "Doctrine of part performance- Whether transferee should be ready and willing to perform-Indian Penal Code"}}, {"text": "s. 53A", "label": "PROVISION", "start_char": 1855, "end_char": 1861, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 1869, "end_char": 1893, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 53A", "label": "PROVISION", "start_char": 2319, "end_char": 2330, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 3962, "end_char": 3976, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·"}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 3978, "end_char": 3990, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·"}}, {"text": "Manju Jetlay", "label": "LAWYER", "start_char": 4000, "end_char": 4012, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, P. H. Parekh and Miss Manju Jetlay, for the appellant. _ ·"}}, {"text": "Sharad Manohar", "label": "LAWYER", "start_char": 4038, "end_char": 4052, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar and Suresh Sethi, for the respondents."}}, {"text": "Suresh Sethi", "label": "LAWYER", "start_char": 4057, "end_char": 4069, "source": "ner", "metadata": {"in_sentence": "Sharad Manohar and Suresh Sethi, for the respondents."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4137, "end_char": 4140, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate from the judgment dated 15·0ctober 1969 of the Bombay High Court in First Appeal No."}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 6885, "end_char": 6904, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section\n\n53", "label": "PROVISION", "start_char": 11015, "end_char": 11026, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_626_632_EN", "year": 1977, "text": "D. NAGARAJA ETC. v.\n\nSTATE OF KARNATAKA & ORS.\n\nJanuary 18, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\n<;:onstitutio'! of lndia-Aticle 226-Who can apply-Whether existence of a rzght essenllal-Mysore Village Offices Act 1908-Mysore Village Of]ices Abolition Act 1961.\n\nKarnataka- General Services (Revenu, e Subordinate Branch) Village.Acco1111tant3 (Recruitment) Rules, 1970,\n\nThe appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908.\n\nThis Court in the case of Gow/a Dasrath amarao held that a la\\\\'. which recognises the custom by which a preferential nght f? an office vested m t_he members of a particular family was not consistant with the fundamental nght guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimination on the ground of descent _only was violative of Article 16(2) of the Constitution and, therefore, void.\n\nWith a view to give effect to the said judgment of this Court Mysqre Village Offices Abolition Act of 1961 was enacted abolishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908. The President gave his assent to the said Act.\n\nThereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to rgu late the recruitment, pay and other condltions of service of Village Accountants.\n\nRule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Officers on the date' of commencement of those rules provided thy fulfilled certain educational qualifications and were below a certain age. .Challenge to the constitutional validity of the said Act was negatived by this Court in the case of B. R. Shankaranarayana & Ors. v. State of Mysore AIR 1966 S.C. 1571.\n\nThe State Legislature enacted the Kamataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continuance of Village Accountants hold the said post immediately before the commencement of the Act.\n\nSection 16 ( e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be \"deemed to be village Accountants for such villages till other persons were appointed.\n\nThe 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970.\n\nRules 4 and 5 lay down the eligibility of the persons for the appointment as Village Accountant and the constitution of a Committee for selection and the method of selection.\n\nThe Recruitment Committee invited applications, interviewed the applicants who were eligible and prepard a list of selected pnd1dates and, th 0 reafter, issued the order of aopointment.\n\nAs the appellants had to give up their posts in co_nsequence of the fresh appointments they filed the present writ petitions impugning the velidity of rules 4 and 5 of the 1970 Rules on the ground that thoy were violative of Articles J4 and 16 of the Constitution and challenging the selection and aoonintment of resnondents Nos. 3 to 191 as Village Accountants and for a direction that they should be continued as Village Accountants.\n\nThe High Court dismissed the writ petitions.\n\nDismissing the appeals,\n\nHELD : t. Though Article 226 of the Constitution in terms does not describe the classes of nersons entitled to applv thereunder. the existence of the right is implicit for invokinp; the. exercise. of the extra.ordinary jurisdiction by the High Court under the said Arttcle. It is well estabhshed that a person who.\n\nis not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity ()f the Abolition Act abolshing all hereditary Village Offices having been upheld' by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution. The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions. [631 E-H 632 A]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 883 898-905/75. and\n\n\" I~ Appeals by Special Leave from the Judgment and Order dated 20-2-75 of the Karnataka 'High Court in Writ Petition Nos. 5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828 and 5829 of 1974.\n\nR. B. Datar for the Appellants in all the appeals.\n\nC V. P. Raman, Addl. Sol. Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH J.\n\nThis judgment isha!Q dispose of Appeals Nos. 883 and 898 to 905 of 1975 which are directed against the common D judgment dated February 20, 1975 of the High Court of Karnataka at Bangalore dismissing writ petitions Nos. 5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974 on the ground that the appellants had no right to maintain the same.\n\nllhe circumstances leading to .these appeals are: The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908. 'In writ .petition No. 133 of 1959 entitled Gazu/a Daseratha Rama Rao v. State of A; P, .& Ors.(~) decided on Pecember 6, -1960, this Court held that a faw which recognised the custom by which .a preferential .Fight to an office vested in the members of a particular .family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised iby law with .regard to a hereditary office must yield to a fundamental right .and_section 6(1) of the Madras Hereditary Village Offices Act JU of •1895 in so ifar as it made discrimination on the ground of descent only was -violative of the fundamental right under Article 16 (2) .of ·.the Constitution and was void.\n\nWith a view to giving effect to the principle settled by this decision, the Legislature of the •then State \"Jif 'Mysore comprising the •territories of the erstwhile States of Mysore . and coorg and certain .parts of the erstwhile States of Bombay, Hyderabad and Madras enacted the Mysore Village •Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act') abolishing all the hereditary villlage offices including the office of shambogue or. village Accountant created under the Mysore Village .offices Act, 1908.\n\nPursuant to sub\"section (3) of section 1 which authorised the State Government 'to fix a date 1for the commencement .of the Act, the Government of Mysore issued a notification.on January 9, 1963 noti- 1fying that the Abolition Act would come into force with effect from February 1, 1-963.\n\n(ll [19611 2 S.C.R. 931 =A.LR. 1961 SC. 564. 6-112 scrm\n\nShortly after the according of the assent to the Abolition Act by the President on July 8, 1961, tihe Governor of Mysore framed rules\n\nclled the Mysore General Service (Revenue Subordinate Branch)\n\nillage Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Constitution and other powers enab; ing him in that behalf. These Rules, as evident from their title, were designed to regulate the recruitment, pay and other conditions of service of Village Accountants.\n\nRule 10 of the 1961 Rules which was in the nature of a non obstante provision provided for the initial recruitment to the posts of Village Accountants to be made from amongst persons holding the posts of village officers on the date of commencement of those Rules provided that such persons had passed the S. S. L. C. examination or an equivalent examination and tlreir age did not exceed 40 years on the said date.\n\nBy a proviso which was introduced in the year, 1963, it was provided that in the event of persons satisfying the qualifications mentioned in Rule 7 not being available even after the vacancies are twice advertised, the recruitment should be made from amongst persons holding the posts of village officers who were not more than 50 years of age on the date of commencement of the said Rules and who had passed the Lower Secondary or Vernacular Final or equivalent examination.\n\nBy a notification issued on January 6, 1963, the Government of Mysore directed the D.eputy Commissioners to appoint persons recruited under the 1961 Rules as village accountants and relieve the then holders of their offices. On the issue of the aforesaid notification dated January 9, 1963, a number of writ petitions under Article 226 of the Constitution were filed in the High Court challenging the legality and constitutional validity of the Abolition Act on the ground that it was a piece of colourable legislation. During the pendency of the writ pe; titions, an ad-interim order staying the operation of the afore- . said Notification dated January 9, 1963 was issued by the High Court. ' As a consequence of the stay order, the appellants and a number of other persons who were holding the posts of Shambogues under the Mysore Village Offices Act, 1908 had to be continued by the State Government in the posts held by them.\n\nThe writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B. R. Shankaranarayana & Ors. v.\n\nState of Mysore('). Thus the constitutional validity of the Abolition Act was finally upheld by the Court. During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act') which came into force on April 1, 1964. Section 16 of the Act provides for the appointment of Village Accountants and the continuance of village accountants hold- ing the said posts immediately before the commencement of the Act.\n\nuh-section (1) of section 16 lays down that, subiect to the general orders of the State Government and the Divisional Commissinner, the Deputy Commissioner can a?point Village ccountants fr villacres or groups of villages. Sub-section (2) of section 16 provides that the\n\n(1) A.LR. 1966 S.C. 1571.\n\npersons holding the office of the Village Accountant before the com- A mencement of the Act, shall be deemed to be Village Accountants for such villages till another person is appointed under sub-section (1) of section 16. Thus sub-section (2) of section 16, it would be seen, was; designed to cover the case of the persons who had perforce to be continued as Shambogues because of the aforesaid stay order issued by the High Court despite the abolition of those posts by the Abolition B\n\nThe 1961 Rules were repealed and replaced by another set of Rules called the Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules, 1970 (hereafter referred to as the 1970 Rules) made by the State Government in exercise of the powers conferred by sections 16 and 1 7 of the Act.\n\nC Rules 4 and 5 of the 197.0 Rules which were amended from time to time stood as follows on the relevant date :-\n\n\"4. Recruitment. ( 1) Recruitment to the cadre of village Accountant shall be made by direct recruitment from amongst:- D\n\n(i) persons who have served as Village Officers;\n\n(ia) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i) ; E\n\n(ii) persons who have been regularly recruited as Pan~ chayat Secretaries in accordance with the rules in force at {he time of the -recruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ;\n\n(iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at . the timi;: of recruitment and working as Panchayat Secretanes who-\n\n(a) have passed the Middle School examination or any other examination declared as . equivalent thereto by the State Government; and\n\n(b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if H sufficient number of eligible persons are not available under (ii) ;\n\n( c) are not more than 50 years of age as on 1st April, 1967 ;\n\n(iv) xx xx xx\n\n(v) othrs, if sufficient number of persons are not available under any of the above categories.\n\n(2) No persons other than the persons referred to in categories (ii) and (iii) of sub-rule ( 1) \"shall be eligible for appointment under these rules unless . he has passed the S.S.L.C. examination or .any examination declared by the State Government as equivalent thereto.\n\n( 3) The limit for appointment under sub-rule (I) shall be-\n\n( i) 3 3 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and\n\n(ii) 28 years in the case of others as on 1st January, 1970.\n\nProvided that in the case of person who have served as Village Officer or as .Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.\n\nProvided further that in the case of local candidates, such age shall be as~ 1st January, .1965 :\n\nExplanation-For the purpose of this rule \"Village Officer\" means a person who held a 'Village Office' other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961) .\"\n\n\"5. Committee for se/ection-(1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commissioner shall be the\n\nSecretary.\n\n(2) The Committee shall call for application for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Direct Recr_uitment by Selection) Rules, 1967.\n\n(3) The decision of the Committee shall be final subject to the approval of the Divisional Commissioner.\n\n( 4) The list approved by the Divisional Commissioner shall be published and appointments shall be made in order in which the names of persons selected are arranged in the 5aid list.\"\n\nPursuant to the 1970 Rules, applicatipns were invited by ·the A Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Hassan.\n\nAfter sorting out the applications received in response to the advertisement, the Committee interviewed the applicants who were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants. This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition B No. 1871 of 1972 entitled Komari Gowda v. State of Mysore & Ors. and the Committee was directed to select the candidates afresh in accordance with law.\n\nConsequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candidates which was publishe~ in the Karnataka Gazette on May 30, 1974.\n\nThereafter, the Deputy Commissioner, Hassan issued orders of appointment of the candidates who were selected by the Recruitment c Committee. Some of the candidates thus selecteQ were posted as Village Accountants under section 16 ~2) of the Act to the villages in which the appellants were functioning.\n\nAs the appellants, had to give up their posts in consequence of. the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of tl1e 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitu- D tion, (ii) th~ selection and appointment of repondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under s_ection 16(2) of the Act. The writ petitions having been dismissed by the High Court as stated above, the appellants have come up i11J appeal to this Court.\n\nThe sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions.\n\nIt is well settled that though Article 226 of the Constitution in term~ does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also welrestablished that .a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B. R. Slwnkaranarayana & Ors.\n\nv. State of Mysore (supra), and the first preference in the matter of appointment o~ Village Accountants having been given by Rule-4 of the 1970 Rules to all persons belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the aforesaid notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement 0£ Articles\n\n14 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of . H persons arbitrarily selected from out of a larger group who are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational\n\nqualifications for the post in question.. The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions. The appeals accordingly fail and are dismissed but without any order as to costs.\n\nP.H.P.\n\nAppeals dismissed. '", "total_entities": 59, "entities": [{"text": "D. NAGARAJA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "D. NAGARAJA ETC", "offset_not_found": false}}, {"text": "STATE OF KARNATAKA & ORS", "label": "RESPONDENT", "start_char": 21, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "STATE OF KARNATAKA & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 67, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 84, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Who can apply-Whether existence of a rzght essenllal-Mysore Village Offices Act 1908", "label": "STATUTE", "start_char": 155, "end_char": 239, "source": "regex", "metadata": {}}, {"text": "Abolition Act 1961", "label": "STATUTE", "start_char": 263, "end_char": 281, "source": "regex", "metadata": {}}, {"text": "Article 16", "label": "PROVISION", "start_char": 741, "end_char": 751, "source": "regex", "metadata": {"linked_statute_text": "The appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908", "statute": "The appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908"}}, {"text": "Article 16(2)", "label": "PROVISION", "start_char": 915, "end_char": 928, "source": "regex", "metadata": {"linked_statute_text": "The appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908", "statute": "The appellants held the post of Shambhpgues on hereditary basis under the Mysore Village Offices Act 1908"}}, {"text": "With a view to give effect to the said judgment of this Court Mysqre Village Offices Abolition Act", "label": "STATUTE", "start_char": 972, "end_char": 1070, "source": "regex", "metadata": {}}, {"text": "Mysore", "label": "GPE", "start_char": 1324, "end_char": 1330, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to rgu late the recruitment, pay and other condltions of service of Village Accountants."}}, {"text": "State Legislature enacted the Kamataka Land Revenue Act 1964", "label": "STATUTE", "start_char": 1991, "end_char": 2051, "source": "regex", "metadata": {}}, {"text": "Section 16", "label": "PROVISION", "start_char": 2052, "end_char": 2062, "source": "regex", "metadata": {"linked_statute_text": "The State Legislature enacted the Kamataka Land Revenue Act 1964", "statute": "The State Legislature enacted the Kamataka Land Revenue Act 1964"}}, {"text": "Section 16", "label": "PROVISION", "start_char": 2242, "end_char": 2252, "source": "regex", "metadata": {"linked_statute_text": "The State Legislature enacted the Kamataka Land Revenue Act 1964", "statute": "The State Legislature enacted the Kamataka Land Revenue Act 1964"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 3494, "end_char": 3505, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 4280, "end_char": 4298, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4451, "end_char": 4479, "source": "ner", "metadata": {"in_sentence": "631 E-H 632 A]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "R. B. Datar", "label": "OTHER_PERSON", "start_char": 4715, "end_char": 4726, "source": "ner", "metadata": {"in_sentence": "R. B. Datar for the Appellants in all the appeals."}}, {"text": "V. P. Raman", "label": "OTHER_PERSON", "start_char": 4769, "end_char": 4780, "source": "ner", "metadata": {"in_sentence": "C V. P. Raman, Addl."}}, {"text": "N. Nettar", "label": "OTHER_PERSON", "start_char": 4817, "end_char": 4826, "source": "ner", "metadata": {"in_sentence": "Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals."}}, {"text": "Pecember 6, -1960", "label": "DATE", "start_char": 5537, "end_char": 5554, "source": "ner", "metadata": {"in_sentence": "Ors.(~) decided on Pecember 6, -1960, this Court held that a faw which recognised the custom by which .a preferential .Fight to an office vested in the members of a particular .family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised iby law with .regard to a hereditary office must yield to a fundamental right .and_section 6(1) of the Madras Hereditary Village Offices Act JU of •1895 in so ifar as it made discrimination on the ground of descent only was -violative of the fundamental right under Article 16 (2) .of ·.the Constitution and was void."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 5762, "end_char": 5772, "source": "regex", "metadata": {"linked_statute_text": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908", "statute": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908"}}, {"text": "section 6(1)", "label": "PROVISION", "start_char": 5911, "end_char": 5923, "source": "regex", "metadata": {"linked_statute_text": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908", "statute": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 6094, "end_char": 6104, "source": "regex", "metadata": {"linked_statute_text": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908", "statute": "The appellants held the posts of shambogues on hereditary basis under the Mysore Village Offices Act, 1908"}}, {"text": "Bombay", "label": "GPE", "start_char": 6387, "end_char": 6393, "source": "ner", "metadata": {"in_sentence": "and coorg and certain .parts of the erstwhile States of Bombay, Hyderabad and Madras enacted the Mysore Village •Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act') abolishing all the hereditary villlage offices including the office of shambogue or."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 6395, "end_char": 6404, "source": "ner", "metadata": {"in_sentence": "and coorg and certain .parts of the erstwhile States of Bombay, Hyderabad and Madras enacted the Mysore Village •Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act') abolishing all the hereditary villlage offices including the office of shambogue or."}}, {"text": "Madras", "label": "GPE", "start_char": 6409, "end_char": 6415, "source": "ner", "metadata": {"in_sentence": "and coorg and certain .parts of the erstwhile States of Bombay, Hyderabad and Madras enacted the Mysore Village •Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act') abolishing all the hereditary villlage offices including the office of shambogue or."}}, {"text": "Offices Abolition Act, 1961", "label": "STATUTE", "start_char": 6444, "end_char": 6471, "source": "regex", "metadata": {}}, {"text": "section 1", "label": "PROVISION", "start_char": 6728, "end_char": 6737, "source": "regex", "metadata": {"linked_statute_text": "Offices Abolition Act, 1961", "statute": "Offices Abolition Act, 1961"}}, {"text": "Government of Mysore", "label": "ORG", "start_char": 6830, "end_char": 6850, "source": "ner", "metadata": {"in_sentence": "Pursuant to sub\"section (3) of section 1 which authorised the State Government 'to fix a date 1for the commencement .of the Act, the Government of Mysore issued a notification.on January 9, 1963 noti- 1fying that the Abolition Act would come into force with effect from February 1, 1-963."}}, {"text": "Shortly after the according of the assent to the Abolition Act", "label": "STATUTE", "start_char": 7044, "end_char": 7106, "source": "regex", "metadata": {}}, {"text": "July 8, 1961", "label": "DATE", "start_char": 7127, "end_char": 7139, "source": "ner", "metadata": {"in_sentence": "6-112 scrm\n\nShortly after the according of the assent to the Abolition Act by the President on July 8, 1961, tihe Governor of Mysore framed rules\n\nclled the Mysore General Service (Revenue Subordinate Branch)\n\nillage Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Constitution and other powers enab; ing him in that behalf."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 7358, "end_char": 7369, "source": "regex", "metadata": {"linked_statute_text": "Shortly after the according of the assent to the Abolition Act", "statute": "Shortly after the according of the assent to the Abolition Act"}}, {"text": "January 6, 1963", "label": "DATE", "start_char": 8505, "end_char": 8520, "source": "ner", "metadata": {"in_sentence": "By a notification issued on January 6, 1963, the Government of Mysore directed the D.eputy Commissioners to appoint persons recruited under the 1961 Rules as village accountants and relieve the then holders of their offices."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8801, "end_char": 8812, "source": "regex", "metadata": {"statute": null}}, {"text": "Shambogues under the Mysore Village Offices Act, 1908", "label": "STATUTE", "start_char": 9283, "end_char": 9336, "source": "regex", "metadata": {}}, {"text": "December 9, 1963", "label": "DATE", "start_char": 9494, "end_char": 9510, "source": "ner", "metadata": {"in_sentence": "The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B. R. Shankaranarayana & Ors."}}, {"text": "January 21, 1966", "label": "DATE", "start_char": 9569, "end_char": 9585, "source": "ner", "metadata": {"in_sentence": "The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B. R. Shankaranarayana & Ors."}}, {"text": "Thus the constitutional validity of the Abolition Act", "label": "STATUTE", "start_char": 9652, "end_char": 9705, "source": "regex", "metadata": {}}, {"text": "State Legislature enacted the Karnataka Land Revenue Act, 1964", "label": "STATUTE", "start_char": 9841, "end_char": 9903, "source": "regex", "metadata": {}}, {"text": "April 1, 1964", "label": "DATE", "start_char": 9968, "end_char": 9981, "source": "ner", "metadata": {"in_sentence": "During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act') which came into force on April 1, 1964."}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9983, "end_char": 9993, "source": "regex", "metadata": {"linked_statute_text": "the State Legislature enacted the Karnataka Land Revenue Act, 1964", "statute": "the State Legislature enacted the Karnataka Land Revenue Act, 1964"}}, {"text": "section 16", "label": "PROVISION", "start_char": 10192, "end_char": 10202, "source": "regex", "metadata": {"linked_statute_text": "the State Legislature enacted the Karnataka Land Revenue Act, 1964", "statute": "the State Legislature enacted the Karnataka Land Revenue Act, 1964"}}, {"text": "section 16", "label": "PROVISION", "start_char": 10416, "end_char": 10426, "source": "regex", "metadata": {"linked_statute_text": "the State Legislature enacted the Karnataka Land Revenue Act, 1964", "statute": "the State Legislature enacted the Karnataka Land Revenue Act, 1964"}}, {"text": "section 16", "label": "PROVISION", "start_char": 10684, "end_char": 10694, "source": "regex", "metadata": {"linked_statute_text": "the State Legislature enacted the Karnataka Land Revenue Act, 1964", "statute": "the State Legislature enacted the Karnataka Land Revenue Act, 1964"}}, {"text": "section 16", "label": "PROVISION", "start_char": 10720, "end_char": 10730, "source": "regex", "metadata": {"linked_statute_text": "the State Legislature enacted the Karnataka Land Revenue Act, 1964", "statute": "the State Legislature enacted the Karnataka Land Revenue Act, 1964"}}, {"text": "sections 16 and 1", "label": "PROVISION", "start_char": 11251, "end_char": 11268, "source": "regex", "metadata": {"statute": null}}, {"text": "1st January, 1970", "label": "DATE", "start_char": 11687, "end_char": 11704, "source": "ner", "metadata": {"in_sentence": "1) Recruitment to the cadre of village Accountant shall be made by direct recruitment from amongst:- D\n\n(i) persons who have served as Village Officers;\n\n(ia) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i) ; E\n\n(ii) persons who have been regularly recruited as Pan~ chayat Secretaries in accordance with the rules in force at {he time of the -recruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ;\n\n(iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at ."}}, {"text": "1st April, 1967", "label": "DATE", "start_char": 12681, "end_char": 12696, "source": "ner", "metadata": {"in_sentence": "equivalent thereto by the State Government; and\n\n(b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if H sufficient number of eligible persons are not available under (ii) ;\n\n( c) are not more than 50 years of age as on 1st April, 1967 ;\n\n(iv) xx xx xx\n\n(v) othrs, if sufficient number of persons are not available under any of the above categories."}}, {"text": "Karnataka Village Offices Abolition Act, 1961", "label": "STATUTE", "start_char": 13730, "end_char": 13775, "source": "regex", "metadata": {}}, {"text": "Hassan", "label": "GPE", "start_char": 14761, "end_char": 14767, "source": "ner", "metadata": {"in_sentence": "Pursuant to the 1970 Rules, applicatipns were invited by ·the A Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Hassan."}}, {"text": "November 19, 1972", "label": "DATE", "start_char": 15072, "end_char": 15089, "source": "ner", "metadata": {"in_sentence": "This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition B No."}}, {"text": "May 30, 1974", "label": "DATE", "start_char": 15441, "end_char": 15453, "source": "ner", "metadata": {"in_sentence": "Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candidates which was publishe~ in the Karnataka Gazette on May 30, 1974."}}, {"text": "section 16", "label": "PROVISION", "start_char": 15675, "end_char": 15685, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(2)", "label": "PROVISION", "start_char": 15864, "end_char": 15877, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 16035, "end_char": 16053, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 16611, "end_char": 16622, "source": "regex", "metadata": {"statute": null}}, {"text": "Village Accountants having been given by Rule", "label": "STATUTE", "start_char": 17290, "end_char": 17335, "source": "regex", "metadata": {}}, {"text": "Articles\n\n14 and 16", "label": "PROVISION", "start_char": 17751, "end_char": 17770, "source": "regex", "metadata": {"linked_statute_text": "Village Accountants having been given by Rule", "statute": "Village Accountants having been given by Rule"}}]}
{"document_id": "1977_2_633_635_EN", "year": 1977, "text": "PRITHVI RAJ TANEJA A\n\nSTATE OF MADHYA PRADESH AND OTHERS\n\nlanuary 18, 1977\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.] B\n\nLand Acquisition Act, 1894, S. 23-Compulsory acquisition of land- Whether price paid for small plots a criterion for determining compensation for vast areas-Assesmient of market value, when to remain undisturbed.\n\nThe appellant's land was acquired and compensation was awarded to him by the Land Acq.uisition Officer. Demanding a higher amount, the appellant had the matter referred to the District Judge who increased the award, but still C discontented, the appellant went in appeal. The High Court also increased the compensation but could not satisfy the appellant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his l'arge area were sold at much higher rates.\n\nDismising the appeal, the Court,\n\nHEID : 1. The price paid for small plots of land cannot provide a safe critarion for determining the amount of compensation for a vast area of land.\n\nD The large area of land cannot possibly fetch a price at the same rate at which small plots are sold. [635 A-Bl\n\nSmt. Padma Uppal etc. v. State of Punjab & Ors. [19.77]\n\n1 S.C.R. 329, applied. ·\n\n2. The essential thing is to keep in view the rlevant factors prescribed by the Act. If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the E acquired land should not be disturbed. [635 D-E]\n\nThakur Kanta Prasad Singh (dead) by L. Rs v. State of Bihar A.I.R. 1976 S.C. 2219, applied.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1827 of 1970.\n\n(From the Judgment andl Decree dated 28-4-1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).\n\nS .. N. Andley' and Uma Dutta, for the appellants\n\nRam Panjwani and H. S. Harihar, for the respondents.\n\nThe Judgment of the Court was delivered by G\n\nKHANNA, J. This is an appeal on certificate by Prithvi Raj Taneja {now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land.\n\n' A plot of land measuring 27 bighas: and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction of a police station and residntial quarters fo1•\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nA policemen. A bigha, it is stated, i~ equivalent to 2,500 square yards.\n\nThe land sought to be acquired measured 68,658 square yards. Notification under section 4 of the Land Acquisition Act for the acquisition of the Janel was issued on April 7, 1961. The Land Acquisition Officer' as per award dated June 13, 1961 awarded compensation for the land at the rate o~ Rs. 100 per bigha. In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small B trees standing on the Jan'd. The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the land, and Rs. 800 for a house standing on the land. In all, the appellant was awarded a sum of Rs. 7,616 including solatium at the rate of fifteen per cent by , the Land Acquisition Officer.\n\nThe appellant wanted compensation for. the land at the rate of c Rs. 10 per square yard.\n\nHe accordingly had the matter referred to the District Judge.\n\nLearned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.\n\nRegarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer. In other respects, the award of the Land Acquisition Officer was upheld.\n\nComputing sola- D tium at the rate of 10 .per cent, the total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six pe1• cent per annum.\n\nThe appellant not being satisfied with the award of the Additional Distiict Judge took the matter in appeal to the High Court. The High Court awarded compensation to the appellant at the rate of Re. 1 per square yard for the land in question.\n\nThe High Court also awarded Rs. 2,500 for the Joss of earnings to the appellant. Tl; le rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to fifteen per cent. In all, the appellant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.\n\nThe appellant thereupon obtained a certificate of fitness for appeal to this Court under article 133(1) (a) of the Constitution, as it stood at that time.\n\nIn appeal oefore us, Mr. Andley on behalf of the appellant has argued that more tl1an half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly. It is further\n\nstated that the land in question abutts Ashok Nagar-Isagarh Road and is situated near the tehsil building and the railway station. Learned counsel has also referred to the fact that small plots of fand adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960. In this respect, we find that the High Court has considered most of the above ClrCl, lmstances and; has come to the conclusion that Re. 1 per square yard represents fair\n\nmarket value of the land in dispute. The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.\n\nWe agree with the High Court that the price\n\nl'RITHVI RAJ v. MADHYA PRADESH (Khan, na, J.) 635\n\npaid for small plts of land cannot provide a safe criterion for deter- A mining the amount of compensation for a vast area of land. We may in this context refer to a recent judgment in the case of Smt.\n\nPadma Uppal etc. v. State of Punjab & Ors.(') wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that t_he large area of land cannot possibly fetch a price at the same rat~ a_t which smll plots are sold.\n\nSection 23 of the Land Acquisition Act provides that in deter mining the amount of compensation to be. awarded for the, land acquired under the Act, the Court shall take into account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act. The market value means the price that a willing purchaser would pay to a willing seller for the property.\n\nC having due regard to its existing condition with all its existing advantages and itspotential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the: scheme for which the property is compulsorily acquired.\n\nJn considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.\n\nThere is an element of guess-work inherent in most cases involving D determination of the market value of the acquired land~ But this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. [f the judgment of the High Court reveals that it has taken into consideration the relevant factors, the as_sessment of the market value of the acquired land should not be disturbed (see Thakur Kanta Prasad Singh (dead) by L. rs. v. State of Bihar(2 ). After having been taken through the E material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its finding.\n\nThe appeal consequently fails and is dismissed but in the circumstances without costs. ·\n\nM.R.\n\nAppeal dismissed.\n\n----·--· ---------------\n\n(I) [1977] l S.C.R. 329.\n\n(2) A.LR. 1976 S.C. 2219.", "total_entities": 26, "entities": [{"text": "PRITHVI RAJ TANEJA", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "PRITHVI RAJ TANEJA", "offset_not_found": false}}, {"text": "A\n\nSTATE OF MADHYA PRADESH AND OTHERS", "label": "RESPONDENT", "start_char": 19, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH AND OTHERS", "offset_not_found": false}}, {"text": "lanuary 18, 1977", "label": "DATE", "start_char": 58, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "PRITHVI RAJ TANEJA A\n\nSTATE OF MADHYA PRADESH AND OTHERS\n\nlanuary 18, 1977\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 77, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 91, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 133, "end_char": 159, "source": "regex", "metadata": {}}, {"text": "S. 23", "label": "PROVISION", "start_char": 161, "end_char": 166, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 748, "end_char": 761, "source": "ner", "metadata": {"in_sentence": "The High Court also increased the compensation but could not satisfy the appellant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his l'arge area were sold at much higher rates."}}, {"text": "Thakur Kanta Prasad Singh", "label": "OTHER_PERSON", "start_char": 1519, "end_char": 1544, "source": "ner", "metadata": {"in_sentence": "635 D-E]\n\nThakur Kanta Prasad Singh (dead) by L. Rs v. State of Bihar A.I.R. 1976 S.C. 2219, applied."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1612, "end_char": 1640, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Madhya Pradesh High Court (Gwalior Bench)", "label": "COURT", "start_char": 1729, "end_char": 1770, "source": "ner", "metadata": {"in_sentence": "(From the Judgment andl Decree dated 28-4-1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No."}}, {"text": "S .. N. Andley", "label": "LAWYER", "start_char": 1806, "end_char": 1820, "source": "ner", "metadata": {"in_sentence": "S .. N. Andley' and Uma Dutta, for the appellants\n\nRam Panjwani and H. S. Harihar, for the respondents."}}, {"text": "Uma Dutta", "label": "LAWYER", "start_char": 1826, "end_char": 1835, "source": "ner", "metadata": {"in_sentence": "S .. N. Andley' and Uma Dutta, for the appellants\n\nRam Panjwani and H. S. Harihar, for the respondents."}}, {"text": "Ram Panjwani", "label": "LAWYER", "start_char": 1857, "end_char": 1869, "source": "ner", "metadata": {"in_sentence": "S .. N. Andley' and Uma Dutta, for the appellants\n\nRam Panjwani and H. S. Harihar, for the respondents."}}, {"text": "H. S. Harihar", "label": "LAWYER", "start_char": 1874, "end_char": 1887, "source": "ner", "metadata": {"in_sentence": "S .. N. Andley' and Uma Dutta, for the appellants\n\nRam Panjwani and H. S. Harihar, for the respondents."}}, {"text": "G\n\nKHANNA", "label": "JUDGE", "start_char": 1954, "end_char": 1963, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nKHANNA, J. This is an appeal on certificate by Prithvi Raj Taneja {now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land."}}, {"text": "Prithvi Raj Taneja", "label": "PETITIONER", "start_char": 2004, "end_char": 2022, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nKHANNA, J. This is an appeal on certificate by Prithvi Raj Taneja {now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land.", "canonical_name": "PRITHVI RAJ TANEJA"}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 2111, "end_char": 2136, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nKHANNA, J. This is an appeal on certificate by Prithvi Raj Taneja {now deceased and represented by his legal representatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensation for the acquisition of land."}}, {"text": "section 4", "label": "PROVISION", "start_char": 2678, "end_char": 2687, "source": "regex", "metadata": {"statute": null}}, {"text": "June 13, 1961", "label": "DATE", "start_char": 2827, "end_char": 2840, "source": "ner", "metadata": {"in_sentence": "The Land Acquisition Officer' as per award dated June 13, 1961 awarded compensation for the land at the rate o~ Rs."}}, {"text": "article 133(1)", "label": "PROVISION", "start_char": 4682, "end_char": 4696, "source": "regex", "metadata": {"statute": null}}, {"text": "Andley", "label": "OTHER_PERSON", "start_char": 4774, "end_char": 4780, "source": "ner", "metadata": {"in_sentence": "In appeal oefore us, Mr. Andley on behalf of the appellant has argued that more tl1an half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly."}}, {"text": "Ashok Nagar Municipality", "label": "GPE", "start_char": 4897, "end_char": 4921, "source": "ner", "metadata": {"in_sentence": "In appeal oefore us, Mr. Andley on behalf of the appellant has argued that more tl1an half of the land in dispute is within the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly."}}, {"text": "Section 23", "label": "PROVISION", "start_char": 6318, "end_char": 6328, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 6598, "end_char": 6607, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_636_644_EN", "year": 1977, "text": "NARAYANA PRABHU VENKATESWARA PRABHU v.\n\nNARA YAN PRABHU KRISHNA PRABHU & ORS.\n\nJanuary 19, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J\n\n. Code of Cvi/ Procedure-s. 11-Explanations II and VI-Scope of- Exzstence of right of appeal-If a bar of res-judicarn.\n\nExplanation II to s. 11 C.P .C. provides that for the purposes of the section, the co.mpetence of a Court shall be determined irrespective of any provision as to a nght of appeal .from the decision of such Court. Expliination VI provides that where persons htagate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for. the putjJoes of this section be deemed to claim under the persons so litigatmg.\n\nThe respondents and the appellant were brothers. The respondents filed a suit for partition of the family properties in the Court of Additional Sub-Judge of competent jurisdiction. The appellant on the other hand filed a money suit against one of the brothers in the Court of a Munsiff in which he impleaded his other brothers. Ultimately, the money suit was transferred to the Court of the Additional Sub-Judge, where the partition suit was p.;\\'nding and both the suits were tried together. In appeal, the High Court heard and decided both the appeals together and pronounced separate judgments in continuation but under separate headings and a separate decree was prepared in each appeal.\n\nThe appellant filed an appeal in this Court under Art. 133(l)(a) of the Constitution before its amendment, as a matter of right, against the judgment of the High Court in the partition suit.\n\nA preliminary objection was taken by the respondents in this Court that tae appeal was barrec\\ by res-::\":icata in that the appellant did not file an appeal against the judgment and Jcree in the money suit. The appellant on the other hand contended that neither in law nor in equity was he barred by res-iudicata because he filed the appeal in the partition suit as a matter of right, which was not available to him in the money suit.\n\nDismissing the appeal,\n\nHELD : The preliminary objection i~ supported by s. 11 of the Code of Civil Procedure read in the light of Explanations II and VI.\n\n[644 BJ\n\n1 (a) Section 11 enables a party to raise the statutory pie'\\ of _res-iudicata if the conditions given therein are fulfilled.\n\nSection 11 contams, m statutory form, with explanations, a very salutary principle of public policy. [641 GD]\n\nIn the instant case, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was competent to try both the suits. After the money suit had been transferred, the second Additional Sub-Judge actually tried and decided both of them. That was enough to make the difference in the jurisdiction of the Court in which the suits were initially filed, quite immaterial. Similarly the High Court was competent to hear the appeals from judgments in both cases. It heard and decided the appeals together. [642 A-C]\n\nNarhari & Ors. v. Shankar & Ors. [1950] S.C.R. 754 distinguished.\n\nLonankutty v. Thomman & Anr., A.I.R. 1976 SC 1645=[1976] Supp. S.C.R. 74 followed.\n\nSheoparsan Singh v. Ramnandan Prasad Singh, AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Aniorlekar v. Dhondba 'Ea' V Bin Ganba' RA 'V' 'V' Ta' Mbve, ILR Vol. XV Bombay 104 and Avanasi Gounden & Or~. v.\n\nNachamma/, LLR 29 Madras 195 referred to.\n\nBhugwanbutti Chowdhrani v. A. If. Forbes ILR 28 Ca!.\" 72 approved.\n\n(b) The expression \"former suit\" in Explanation I of s. 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res-iudicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res-judicata would emerge. [643 ll]\n\n( c) One of the tests in deciding whether the doctrine of res-judicata applies to a particular case or not is to determine whether two inconsistent decrees will\n\ncome into existence if it is not applied.\n\nIn a partition suit each party claiming that the property is joint, asserts a right and litigates under a title . which is common to others who make identical claims. If that very issue is litigated in another suit and decided, there is no reason why others making the same claim C cannot be held to be claiming the right in common for themselves and others.\n\nEach of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. To hold otherwise would mean that there would be two inconsistent decrees.\n\n[643 G-HJ In the instant case, the fact that the other suit was a money suit between the appellant and one of his brothers; who was also the respondent in the partition suit, does not mate any difference to the applicability of the principle of res-judicata, [643 CJ D Kumaravelu Chelliar & Ors. v. T. P. Ramaswamy Ayyar & Ors., AIR 1933 PC 183 followed.\n\nSheodhan Singh v. Smt. Daryao Kunwar, [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors. v. Banamali Sen & Ors., [1953] S.C.R. 154 referred to.\n\n2. The question whether there is a bar of res-iudicata does not depend on the existence of a right of appeal of the same nature again~! each of the two decisions, but on the question whether the same issue, under the circumstances E given in s. 11, bas been beard and finally decided. [642 C-D]\n\nIn the instant case, the High Court heard and finally decided both the appeals before it. The mere fact that the appellant could come up to this Court\" in app_eal as of right by means of a certificate of fitness under the unaamended Art. 13 3 (1 )( c) in the partition suit, could not ta1'e away the finality of the decision so far as the High Court had determined the money suit and no . attempt was made to question the correctness or finality of that decision even by means of an application for special leave. [642 D-E]\n\n3. The appellant's application for condonation of delay in applying for leave to appeal against the High Court's judgment in the money suit must be dismissed. His delay in waking up to the existence of the bar of res-iudica{a is much too long to be condoned. The judgment of the High Court based oa the admissions of the appelant, does not disclose any error of law so as to deserve the grant of special leave to appeal. The partition suit was instituted as long ago as 1947. If tl:!ere is a case in which the nrincinle that litigation should have an end ought to be applied, it is this.\n\n[644 C-FJ CNJL APPELLATE JURISDICTION : Civil Appeal No. 1763 of 1968. (From the Judgment and Decree dated the 28th July, 1964 of the Kerala High Court in Appeal Suit ; No. 843 of 1960).\n\nT. C. Raghavan, Sardar Bahadur Saharya and V. B. Saharya, for the appellant.\n\nT. S. Krishnmnoorthy Iyer and M. R. Pillai, for Respondent No. 1.\n\nH T. S. Krishnamoorthy, P. K. Pillai and N. Suhdakaran, for Respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nBEG, !- This is a defendent's appeal by Certificate granted by the Kerala High Coqrt under Article 133(1) (a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133.\n\nThe parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as 'Narayana'). Krishna, the plaintiff (now dead) was the 3rd son of Narayana. The defendant-appellant, Venkateswara, was the eldest of the four sons of Narayana. The partition suit related to 72 items mentioned in schedule 'A' to the plaint claimed by the plaintiff to be joint family property. It appears C that there was no dispute with regard to certain items, but, the defendant-appellant claimed. other items as his exclusive property on the ground that they had been purchased from his personal income due to his own enterprise and exertions and ability in carrying on business.\n\nThe Trial Court had accepted the case of the defendant-appellant that all items, except No. 35 and a part of item No. 52 which belonged to the 3rd defendant, were the self-acquired properties of the defendantappellant. The High Court reversed this finding on the ground that there was \"little reliable evidence on record as to the exact source of the fund with which the first defendant started the trade\". The High Court rejected the submission of the defendant-appellant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara.\n\nThe High Court relying on certain documentary evidence, including the letter-heads showing the business as that of '; P. N. Venkateswara Prabhu & Brothers\" held that the business was joint family business.\n\nThe partition suit was filed originally in another Court but was sent to the Court of the Second Additional Sub Judge of Alleppey in 1957, and the preliminaryrl decree! was passed on 5th August, 1960.\n\nThe High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to be partible properties as part of Joint family business, but it excluded assets which came into existence after the filing of the partition suit which operated as a clear unequivocal expression of intention to separate. It also left the extent of mesne profits of landed properties to be decided in J?roceedings for the passing of the final decree.\n\nIt appeals that the defendant-appellant had also filed a money: suit in the Court of the Munsif only against defendant No. 3, one of the four brothers but all of them were impleaded in the partition suit.\n\nThe money sit was, however, transferred to the fil~ of the Aditional Sub Judge and tried together with the partition smt and was also decreed by the Additiom1l Sub Judge of Alleppey on the sam~ date as the partition suit. The plaintiff-respondent had appealed agamst both the decrees in the High Court. The two aoneals were henrd and decided together by the H; gh Court.\n\nThe High Court, after pronouncing judgment in the partition suit, proceeded to give judgment, A under a new heading and number of the appeal in the money suit. H said, in this separate judgment :\n\n\"The suit that gave rise to this appeal has been instituted by the respondent against the appellant for money due on 14-10-1123 on account of tobacco delivered to the latter's shop. The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant.\n\nThe court below, having found in the other suit the shops run by the parties to belong to the concernedfodividuals, has decreed the suit.\n\nAs we have reversed that •finding in A.S.\n\nNo. 843 of 1960 and found the shop standing in .the name of each brother to be a branch of the joint :family trade fo tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2-3-1124, the date of that partition suit, this suit has to be dismissed\".\n\nThe judgments were, therefore, two separate ones given in one continuation but under separate headings. Separate decrees were prepared\n\nin each appeal relating to a, separate case. -D\n\nAs the defendant appellant did not seek leave to file any appeal against the High Court's .judgment and decree in the money suit and there is no appeal before us against the decree in the .money suit, a ·\n\npreliminary objection is taken on the ground that the .defendant's appeal now before us is baued by res-judicata.\n\nLearned Counsel for the defendant-appellant urges that the two E suits were different in nature and were filed in different Courts originally so. that the Court trying the partition suit and the Court in which\n\nthe money suit was triable were not Courts of coordinate jurisdiction.\n\nIt was also objected that the .partition suit was earlier and Pie .money suit having been filed sixteen days later .could not be deemed -to be a suit decided earlier. Furthermore, it was pointed out that the judgment was common. It was also urged that all the four brothers were •F parties to the partition suit but the money suit was only between two brothers.\n\nIt is true that the appeals against both the decrees of the Trial Court were heard together in the High Court, and, although, .the appeal in the money suit is decided under a separate heading and the short judgment in it appears to be practically consequential on the judl!.tnent G in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees. ' It is urged that, whereas the defendant•appellant had filed an appeal on the strength of a certificate granted to him as a matter of right, following upon tne modification of -the decree of the Trial C0urt\n\nby the Hi!.!h Court, the .defendant-appellant .had no such right ofl appeal in this Court. . Hence, it was submitted that neither in -Jaw nor in equity could the defendant-appellant be barred from putting forward his objections to the decree in the partition suit.\n\nA Certain decisions were relied upon by learned Counsel for: the defendant-appellant Venkateswara in support of the contention that the plea of res judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case. We proceed to consider these cases.\n\nNarhari & Ors. v. Shankar & Ors.,(') is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, \"the Hyderabad Wing\" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His\n\n- Exalted Highness the Nizam's Judicial Committee. Technically, however, it was tliis Court's judgment. In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two sepa~ rate appeals. It elaborated the ratio of the decision as follows (at p. 757-758) :\n\n\"It is riow well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.\n\nAs has been observed by Tek Chand J. in his learned judg ment in Mst. Lachmi v. Mst. Bhuli (AIR 1927 Lah. 289) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.\n\nThe questi<>n of resjudicata arises only when there are two suits.\n\nEven when there are two suits, it has been held that a decision given shriultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.\n\nAs such, there is no question of the application of the principle of res judicata.\n\nThe same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal.\n\nThe two decrees in substance are one\".\n\nG . It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees dierent but the s?its were different. The mere fact that the judgments m the two smts we:e given to11ether or in continuation did ot matter. In fac.t, even m form. the iudgment in the appeal relatn:i11 to the money smt was separate from the rest of the judgment. And, in any case, there were two separate decrees.\n\n(1) [1950] S.C.R. 754.\n\n We think that Section 11 Civil Procedure Code enables the party, to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much. the principle of \"estoppel by record\", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence : firstly, interest reipublicoe ut sit finis litium-it concerns the State that there be an end to law suits; and, secondly, \"nemo\n\ndebet bis vexari pro una et eadem cause\"-no man should . be vexed twice over for the same cause.\n\nSir Lawrence Jenkings pointed out, in Sheoparsan Singh v. Ramntmdan Prasad Singh('), that the rule of res judicata \"while founded on ancient precedent, is dictated by a wisdom which is for all time\".\n\nLitigation which has no end or finality defeats its very object. This object is decision 0£ disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to sec that disputes brought before its judicial organs by citizens are decided finally as early as possible.\n\nHence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy.\n\nAn \"estoppel\", even if it be \"by record\", rests on somewhat different grounds. Even such an estoppel savours of an equity or justice created by actions of parties the results of which have become\n\nrecorded formally behind which they are not allowed to go.\n\nReliance was also placed on Govind Bin Lakshmanshet Anjorlekar\n\nv. Dhondba 'Ra'V Bin Ganba' Ra'V'Ta'Mbye( 2 ), on behalf of the appellant.\n\nHere, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not operate as res judicata in suits before Courts in which questions were elaborately litigated and decided in cases which could go to the High Court in second appeal.\n\nWe were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors. v. Nachamal( 3), where it was similarly held that :. \"A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal\".\n\nWe have to rememqer that Small Cause jurisdiction is a limited one exercisable only in specified matters.\n\nDecisions given beyond jurisdiction to try an issue cannot operate as res judicata.\n\nOur attention was drawn to explanation II of section 11, on G behalf of the respondents. It reads :\n\n\"Explanation II.-For the purposes of this Section, the competence of a Coui:t shall be determined irrespective of any provision as to a right of appeal from the decision of such Court\",\n\n(1) A.LR. 1961 P.C. 78=43 I.A .. 91.\n\n(2)\"1.L.R. Vol. XV Bombay 104.\n\n(3) I.L.R. 2'J Madras 195.\n\nIt seems to us that section 11 itself refers to a Court which actually tries the two suits.\n\nWe think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court.\n\nThat Court was, obviously, competent to try both the suits.\n\nAfter the money suit had been transferred from the Court of the Munsif, thi:: Second Additional Sub Judge actually tried and decided both of them.\n\nThis was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial..\n\nSimilarly, the High Court was competent to hear appeals from judgments in both.\n\nIt heard and decided the two appeals together.\n\nSo far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of, the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided.\n\nThat was certainly purported to be done 'by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal.\n\nThe mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of 'the case under the unamended Article 133(1) (c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal. ·\n\nLearned counsel for the respondents appears to us to have rightly relied upon.Bhugwaributti•Chowdhrani v. A.H. Forbes('), where itwas held that \"in .order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way\".\n\nHe also relied on Lonankutty v. Thomman & Anr.(2), a recent decision\n\nof three Judges of this Court, where Chandrachud, J., observed (at p. 1650) :\n\n\"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit.\n\nThey filed a second appeal in the High Court only as against the decree passed by the District Court in AS. 66 of 1958 which arose out of the decree passed by the trial Court in the appellant's suit.\n\nThus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive\".\n\nIt was also observed there :\n\n\"The decision of the District Court was given in an appeal arising out of a suit. which, though instituted subse-\n\n(1) I.L.R. 28 Cal. 78,\n\n(2) A.T.R. 1976 S.C. 1645=[1976] Supp. S.C. R. 74.\n\nN. PRABHU v. Pi<Am:u V. N. PRABHU K. PRABHU (Beg,].) 643\n\nquently, stood finally decided betore the High Court disposed of the second appeal.\n\nThe decision was, therefore, one in a 'former suit' within the meaning of section 1 l, Explanation I, Civil Procedure Code\". ·\n\nThe expression \"former suit'', according to explnatinn . I <?f . section 11, Civil Procedure Code, makes it clear that, 1f a dec1s1011 is given before the institution of the proceeding which is .sought to be B barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res jqdicata would emerge.\n\nThis as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty's case (supra).\n\nThe only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case.\n\nLearned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of section 11, Civil Procedure Code which provides as follows :\n\n\"Where persons litigate bona fide in respect of a public D right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating\".\n\nOn the other hand, learned counsel for the respondent submits that the case of the respondents fully covered by this explanation and E relies on Kumaravelu Chettiar & Ors. T. P. Ramaswamy Ayyar & Ors.(') where it was held:\n\n\"Explanation 6 is not confined to cases covered by 0.1, R. 8 but extends to include any litigation in which apart from the Rule altogether, parties are entitled to represent interested persons other than themselves\".\n\nWe think that the submission made by the learned counsel for the respondents is sound.\n\nIn a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If hat very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right \"in common for themselves and others\".\n\nEach of them can be deemed by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees.\n\nOne of the tests in deciding whether the 'doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.\n\nWe think this will be the case here. ·\n\n(I) A.T. R. 1933 P.C. 183. 7-l 12SCT/77\n\nWe nee.d not deal with other cases of this Court cited, jncluding Sheodan , smgh .v'. Smt. Darya<! Kunwar('), which supports the respondents subm1ss10ns, and Ra1 Lakshmi Bai & Ors. v. Banamali Sen & . Ors. ('), which is not directly applicable inasmuch as that was a case in which the general principles of res judicata and not section .11 Civil Procedure Code, were applied.\n\nThe preliminary objection m the asc befoe. us is fully supported, for the reasons given above,\n\ny sectio~ 11, Civil Procedure Code read in the light of the .Explanation mentioned above.\n\nConsequently, the preliminary objection must prevail.\n\nLerned counsel for the appellant, conscious of the difficulties in his way, filed after the hearing of the appeal was begun before us, an C . application for condonation of delay in applying for leave to appeal against the judgment of the High Court m the money suit.\n\nHe submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his client's favour.\n\nOn the other hand, learned counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up\n\nto the existence of the bar on the part of the appellant is much. too long to be condoned.\n\nMoreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal.\n\nIndeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit.\n\nWe may mention here that the partition suit was instituted as long ago as 194 7 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.\n\nWe, therefpre, reject the Civil Miscellaneous Petition No. 8585 of 1976, the application for condonation of delay in the filing the Special Leave Petition.\n\nWe dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the over-delayed special leave petition No. 2816 of 1976.\n\nThe result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the parties will bear their own costs.\n\nP.B.R.\n\n(1) [1966] 3 S.C.R. 300\n\n(2) [1953] S.C.R. 154.\n\nAppeal dismissed.\n\n. \\", "total_entities": 66, "entities": [{"text": "NARAYANA PRABHU VENKATESWARA PRABHU", "label": "PETITIONER", "start_char": 0, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "NARAYANA PRABHU VENKATESWARA PRABHU", "offset_not_found": false}}, {"text": "NARA YAN PRABHU KRISHNA PRABHU & ORS", "label": "RESPONDENT", "start_char": 40, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "NARA YAN PRABHU KRISHNA PRABHU & ORS", "offset_not_found": false}}, {"text": "January 19, 1977", "label": "DATE", "start_char": 79, "end_char": 95, "source": "ner", "metadata": {"in_sentence": "January 19, 1977\n\n[A. 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Suhdakaran, for Respondent No."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 7156, "end_char": 7170, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 133", "label": "PROVISION", "start_char": 7370, "end_char": 7381, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna", "label": "PETITIONER", "start_char": 7494, "end_char": 7501, "source": "ner", "metadata": {"in_sentence": "Krishna, the plaintiff (now dead) was the 3rd son of Narayana."}}, {"text": "Narayana", "label": "OTHER_PERSON", "start_char": 7547, "end_char": 7555, "source": "ner", "metadata": {"in_sentence": "Krishna, the plaintiff (now dead) was the 3rd son of Narayana."}}, {"text": "Venkateswara", "label": "PETITIONER", "start_char": 7582, "end_char": 7594, "source": "ner", "metadata": {"in_sentence": "The defendant-appellant, Venkateswara, was the eldest of the four sons of Narayana.", "canonical_name": "Venkateswara"}}, {"text": "Venkateswara", "label": "PETITIONER", "start_char": 8817, "end_char": 8829, "source": "ner", "metadata": {"in_sentence": "The High Court rejected the submission of the defendant-appellant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara.", "canonical_name": "Venkateswara"}}, {"text": "P. N. Venkateswara Prabhu & Brothers", "label": "ORG", "start_char": 8950, "end_char": 8986, "source": "ner", "metadata": {"in_sentence": "The High Court relying on certain documentary evidence, including the letter-heads showing the business as that of '; P. N. Venkateswara Prabhu & Brothers\" held that the business was joint family business."}}, {"text": "5th August, 1960", "label": "DATE", "start_char": 9222, "end_char": 9238, "source": "ner", "metadata": {"in_sentence": "was passed on 5th August, 1960."}}, {"text": "14-10-1123", "label": "DATE", "start_char": 10690, "end_char": 10700, "source": "ner", "metadata": {"in_sentence": "H said, in this separate judgment :\n\n\"The suit that gave rise to this appeal has been instituted by the respondent against the appellant for money due on 14-10-1123 on account of tobacco delivered to the latter's shop."}}, {"text": "2-3-1124", "label": "DATE", "start_char": 11332, "end_char": 11340, "source": "ner", "metadata": {"in_sentence": "843 of 1960 and found the shop standing in .the name of each brother to be a branch of the joint :family trade fo tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2-3-1124, the date of that partition suit, this suit has to be dismissed\"."}}, {"text": "Supreme Court of India", "label": "COURT", "start_char": 13828, "end_char": 13850, "source": "ner", "metadata": {"in_sentence": "is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, \"the Hyderabad Wing\" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His\nExalted Highness the Nizam's Judicial Committee."}}, {"text": "Mehr Chand Mahajan", "label": "JUDGE", "start_char": 13992, "end_char": 14010, "source": "ner", "metadata": {"in_sentence": "is no doubt the judgment of the Supreme Court of India, although it was, iJl one may so put it, \"the Hyderabad Wing\" of it in a transitional period when a learned Judge of this Court, Mr. Justice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His\nExalted Highness the Nizam's Judicial Committee."}}, {"text": "Naik", "label": "JUDGE", "start_char": 14213, "end_char": 14217, "source": "ner", "metadata": {"in_sentence": "In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two sepa~ rate appeals."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 14279, "end_char": 14288, "source": "ner", "metadata": {"in_sentence": "In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two sepa~ rate appeals."}}, {"text": "Tek Chand", "label": "JUDGE", "start_char": 14717, "end_char": 14726, "source": "ner", "metadata": {"in_sentence": "As has been observed by Tek Chand J. in his learned judg ment in Mst."}}, {"text": "Section 11", "label": "PROVISION", "start_char": 16251, "end_char": 16261, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 16262, "end_char": 16282, "source": "regex", "metadata": {}}, {"text": "Lawrence Jenkings", "label": "OTHER_PERSON", "start_char": 16829, "end_char": 16846, "source": "ner", "metadata": {"in_sentence": "Sir Lawrence Jenkings pointed out, in Sheoparsan Singh v. Ramntmdan Prasad Singh('), that the rule of res judicata \"while founded on ancient precedent, is dictated by a wisdom which is for all time\"."}}, {"text": "Section 11", "label": "PROVISION", "start_char": 17395, "end_char": 17405, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 17413, "end_char": 17433, "source": "regex", "metadata": {}}, {"text": "Madras High Court", "label": "COURT", "start_char": 18297, "end_char": 18314, "source": "ner", "metadata": {"in_sentence": "We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors."}}, {"text": "Avanasi Gounden", "label": "OTHER_PERSON", "start_char": 18318, "end_char": 18333, "source": "ner", "metadata": {"in_sentence": "We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors."}}, {"text": "section 11", "label": "PROVISION", "start_char": 18853, "end_char": 18863, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 19214, "end_char": 19224, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 20502, "end_char": 20512, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 20860, "end_char": 20874, "source": "regex", "metadata": {"statute": null}}, {"text": "Chandrachud", "label": "JUDGE", "start_char": 21536, "end_char": 21547, "source": "ner", "metadata": {"in_sentence": "He also relied on Lonankutty v. Thomman & Anr.(2), a recent decision\n\nof three Judges of this Court, where Chandrachud, J., observed (at p. 1650) :\n\n\"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit."}}, {"text": "section 1", "label": "PROVISION", "start_char": 22485, "end_char": 22494, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 22513, "end_char": 22533, "source": "regex", "metadata": {}}, {"text": "section 11", "label": "PROVISION", "start_char": 22604, "end_char": 22614, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 22616, "end_char": 22636, "source": "regex", "metadata": {}}, {"text": "Lonankutty", "label": "OTHER_PERSON", "start_char": 22980, "end_char": 22990, "source": "ner", "metadata": {"in_sentence": "This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty's case (supra)."}}, {"text": "section 11", "label": "PROVISION", "start_char": 23421, "end_char": 23431, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 23433, "end_char": 23453, "source": "regex", "metadata": {}}, {"text": "Kumaravelu Chettiar", "label": "OTHER_PERSON", "start_char": 23892, "end_char": 23911, "source": "ner", "metadata": {"in_sentence": "On the other hand, learned counsel for the respondent submits that the case of the respondents fully covered by this explanation and E relies on Kumaravelu Chettiar & Ors."}}, {"text": "T. P. Ramaswamy Ayyar", "label": "OTHER_PERSON", "start_char": 23919, "end_char": 23940, "source": "ner", "metadata": {"in_sentence": "T. P. Ramaswamy Ayyar & Ors.(')"}}, {"text": "Sheodan", "label": "WITNESS", "start_char": 25225, "end_char": 25232, "source": "ner", "metadata": {"in_sentence": "7-l 12SCT/77\n\nWe nee.d not deal with other cases of this Court cited, jncluding Sheodan , smgh .v'."}}, {"text": "Darya", "label": "RESPONDENT", "start_char": 25250, "end_char": 25255, "source": "ner", "metadata": {"in_sentence": "Darya<!"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 25499, "end_char": 25519, "source": "regex", "metadata": {}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 25646, "end_char": 25666, "source": "regex", "metadata": {}}, {"text": "[1966] 3 S.C.R. 300", "label": "CASE_CITATION", "start_char": 27710, "end_char": 27729, "source": "regex", "metadata": {}}]}
{"document_id": "1977_2_645_653_EN", "year": 1977, "text": "SASHI PRASAD BAROOAH\n\nTHE AGRICULTURE INCOME-TAX OFFICER, SHILLONG,\n\nASSAM & ORS.\n\nJanuary 19, 1977\n\n(H. R. KHANNA AND R. S. SARKARIA, JJ.]\n\nAssam A;; ric11/t11ral Income Tax Rules, 193,9 r. 23-Scope oj- Rule if ultra vi res.\n\nRule 23 of the Assam Agricultural Income-tax Rules, 1939 provides that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu undivided family hithert0: assessed as undivided or joint, such family shall be deemed, to continue to be a Hindu undivided or joint family.\n\nThe assessee was the Karta of a Hindu undivided family,_which was assessed to agricultural income-tax in respect of income derived from the manufacture and sale of tea.\n\nThe assessee contended before the Agricultural Income-tax Officer that, since there was disruption of the Hindu undivided family, no agricultural income-tax was payable exen though agricultural income had arisen from tea estates. This plea was rejected.\n\nHis petition under Art. 226 of the Constitution impugning the validity of r. 23 had been dismissed by the High Court.\n\nJn appeal to this Court it was contended that (i) after the dissolution of the family no assessment order could be made under r. 23 in respect of such disrupted Hindu Undivided family (ii) the State Government had no power to make a rule for the assessment of a Hindu undivided family after a partition took place in the family.\n\nDismissing the appeals,\n\nHELD: (1) The language of r. 23 clearly warrants the conclusion that in the absence of an order apportioning the libility to tax on the basis of parfition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed, for the purpose of the Act to continue to be a Hindu Undivided family.\n\nNo order apportioning the liability to tax on the basis of the alleged partition having been passed, the family shall continue to be treated as a Hindu undivided family.\n\n[651 C-F]\n\n2(a) The liability for tax having been created by the charging section, the rule deals with the question as to who should be the person that should be assessed to tax.\n\nThis is a matter of detail to carry out the purposes of the Act and the State Government was well within its competence to inake the rule in exercise of its rule-making power.\n\n[652 C-D]\n\n(b) The fact thaJ.. .unlike the Income-tax Act, there is no statutory provision in the Act and the matter is dealt with by the rules, would not make any mate rial difference. The rules would lie as much binding as would be statutory provision in 1jiis respect. r652 E-F]\n\n(c) It is well settled that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of taxation Jaws, such as slection of persons on whom the tax is to be levied, the rate at which it is to be charged in respect of different classes of goods and 'the like. r652 G-H]\n\nPt. Ba11arsi Das v. Stale of Madhya Pradesh [1959] S.C.R. 427, followed.\n\nPowell v. Appollo Candle Company Limited [1885] 10 A.C. 282 and Syed Mohamed & Co. v. The Stale of Madras 3 S.T.C. 367, referred to.\n\nC1v1L APPELLATE JuR1smcnoN : Civil Appeal'Nos. 245-251/72.\n\nFrom the Judgment and Order dated 21-9-1970 of tfue Assam and Nagaland High Court in Civil Rules Nos. 105 106 and 123 to 127/ 66. ,\n\nA. K. Sen, D. N. Mukherjee and N. R. Choudhary for the Appellant.\n\nPurshottam Chatterjee and S. N. Choudhary for the respondents.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.\n\nThe short question which arises for consideration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part <;>f rule 23 9f the Assam Agricultural Incometax Rules, 1939 (heremafter referred to as the rules) framed under section 50 of the Assam Agricultural Income-tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act) :\n\n\"Where an order apportioning the liability to the tax . on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shaLi be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.\"\n\nThe High Court held that the facts of this case were covered by the above quoted rule.\n\nThe High Court also repelled the challenge to the vires of the rule.\n\nThe appeals arise out of seven petitions filed under articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment.\n\nThe matter relates to assessment years 1946-47, 1947-48, 1948-49, 1949-50, 1950-51, 1951-52 and 1955-56.\n\nEach writ petition related to one of these years.\n\nWe may set out the facts relating to the assessment year 1946-4 7 as it is the common case of the parties that the decision about the writ petition rd'.ating to that year would govern the other writ petitions also.\n\nThe appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S. P. Barooah & Others.\n\nThe family was governed by Dayabhaga school of Hindu law and consisted of three members.\n\nThe family owned certain tea estates and carried on the business of tea plantation.\n\nIt was assessed under the Act in respect of its income derived from manufacture and sale of tea.\n\nThe case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.\n\nA general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms of sub-section ( 1) of section 19 of the Act calling upon persons whose agricultural income exceeded\n\nthe limits of taxable income to furnish returns within the specified A time.\n\nOn March 24, 1947 the appellant addressed a letter to the Agricultural Iucome-tax Officer praying for extension of . time for submission of the return.\n\nAnother letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income-tax Officer stating that he was trying to expedite the submission of the return.\n\nOn February 15, 1951 the Agricultural Income-tax Officer addressed a communication to the appellant asking him to file the return by B March 14, 1951.\n\nThe appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong.\n\nIn his letter dated July 21, 1951 the appellant informed the Agricultural Income-tax Officer that he would file his return as soon as some matters were settled.\n\nOn March 25, 1955 the appef.lant addressed another letter to the Agricultural Income-tax Officer stating that he had not received the relevant assessment orders made by the Incomec tax Officer (the income-tax officer under the Indian Income-tax Act,\n\n1922) relating to the assessment years 1946-47 onwards.\n\nOn July 11, 1959 the following two notices were sent by the Agricultural Income-tax Officer to the appellant :\n\n\"I am to inform you that following the dissolution of family business of Sashi Prasad Barna and Others in the D year 1945, you are liable to furnish a Return of agricultural incomes including those from the Tea Estates under your ownership from the assessment year 1946-47.\n\nPlease also note that the Returns along with certified copies of Central Income-tax Assessment should reach this office on or before 15-8-59.\n\nIn default, you will be liable E for summary assessment.\"\n\n\"Whereas I have reason to believe that your total agricultural income from sources chargeable to agricultural income-tax in the year ending the 31st March, 1947 to 1959-\n\n(a) has wholly escaped assessment;\n\n(b) I therefore propose-\n\n(i) to assess the said income that has escaped assessment.\n\nI hereupon require you to deliver to me not later than 15-8-59 or within 30 days of the receipt of this notice, a\n\n G Return in the attached form of your total agricultural incoine during the previous year ending the 31st March, 1946 to\n\n1958.\" . .\n\nAccompanying the two notices sent by the Agricultural Income-tax Officer was also a notice under section 19 (2) and section 30 of the Act.\n\nThe appellant failed to submit a return or to furnish certified H copies of the Central assessment orders.\n\nThe Agricultural Incoine~ tax Officer as per order dated June 22, 1961 assessed the total agricultural income of the appellant for the year 1946-47 to be\n\n. D\n\nRs. 1,45,994. An amount of Rs. 19,321.44 was held to be recoverable from the appellant.\n\nThe appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962.\n\nRevision filed by the appellant was dismissed by the Commissioner of Taxes as per order dated September 28, 1964. Certificate of public demand showing an amount of Rs. 3,74,087,89 as due from the appellant for the seven years in question was then issued by the Agricultural Income-tax Officer.\n\nProclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant.\n\nThe appellant thereupon filed, as mentioned earlier, seven writ petitions.\n\nPrayer made in tlle writ petitions was to quash the impugned assessment orders dated June 22, 1961, the notices of demand dated July 4, 1961 and the proclamation of sale dated December 31, 1964.\n\nForm one of the notices addressed by the taxation authorities to the appellant as well as from the return filed on their behalf, it would appear that the taxation authorities were not averse in the event of partition among the members of the Hindu undivided family, to assess the appellant in his individual capacity in respect of the agricultural income arising from those tea estates which had fallen to his share.\n\nSuch a course, it seems, was also not acceptable to the appellant.\n\nHis stand at the same time was that no assessment could be made in the name of Hindu undivided family as according to him the same had been disrupted as a result of partition.\n\nThe appellant thus wanted a complete imunity from payment of agricultural income-tax during the years in question even though agricultural income had arisen from tea estates.\n\nAlthough a number of grounds were taken in the writ petitions, at the hearing before the High Court only two grounds were pressed on behalf of the appellant.\n\nThe first ground was that after the dissolution of the Hindu undivided family, no assessment order could be made under the Act in respect of such disrupted Hindu undivided family.\n\nThe second submission advanced on behalf of the appellant was that in case it be held that the matter was covered by rule 23 reproduced above, in that event the said rule was ultra vires the powers of the State Government to frame rules under the Act.\n\nThe High Court, as already mentioned, decided on both the points in favour of the revenue and against the appellant.\n\nIn appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945. It is urged. as was done before the High Court, that after the disruption of that family, it could not be assessed under the Act.\n\nRule 23 reproduced above. according to the learned counsel, is not attracted in the present case.\n\nJn case, however, it be held that the said rule applies to the present case, the State Government, Mr. Sen submits, had no power to make such a rule.\n\nThe above contentions have been controverted by Mr. Chatterjee on behalf of the respondents.\n\nThe learned counsel has also emphasised the fact that in none of the communications sent by the appellant\n\nmentioned above, there was any reference to partition or the Hindu undivided family.\n\nAfter giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well founded.\n\nIt is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax Officer. ·\n\nIt may be apposite at this stage to refer to the material provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam.\n\nAccording to the dei}nition of \"person\" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family.\n\nSection 3 is the charging section.\n\nAccording to this section. agricultural income-tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of this Act on the total agricultural income of the previous year of every individual, Hindu undivided or joint family, company, firm and other association of individuals.\n\nSection 19 of the Act deals with the .return of income and reads as under :\n\n\"19. (1 ) The Agricultural Income-tax Officer shall; on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every\n\nperson whose agricultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year :\n\nProvided that the Agricultural Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or :c1ass of persons;\n\n(2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial yeai the Agricultural Income-tax Officer may serve in that financial year a notice in the prescribed form upon him requiring him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year. .\n\n(3) If any person has not furnished a return within the time allowed by or under sub-section ( 1), or sub-section\n\n(2) or, having furnished a return under either of those subsections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made, and any return so made shall be deemed to be made in due time under this section.\"\n\nSection 20 provides for the making of an assessment order.\n\nSection 30 deals with income escaping assessment, and its material part reads as under:\n\n\"If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income-tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 19, and may proceed to :mess or reassess such income, and the provisions of this Act shall, so far as may be, apply ;; ccordingly as if the notice were a notice issued i.; ndcr that sub-section : \"\n\nSection 50 empr.vers the State Government to make rules.\n\nThe material part of that section reads as under:-\n\n\"50. ( 1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be scified.\n\n(2) In particular, and without prejudice to the generality of the foregoing power, such rules may- (a) (b) (c) (d)\n\n- (e) (f) (g) (h)\n\n(i)\n\n(j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the property of such\n\n' ,,,_\n\n- family has been effected after the date of such A\n\n(k)\n\n(I)\n\n(m)\n\nassessment;\n\nWe have set out above the relevant part of rule 23.\n\nThe rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family .shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.\n\nIt would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition is passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be _ deemed for the purp.ose of the Act to continue to be a Hindu undivided family.\n\nAdmittedly no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the Karta.\n\nAs such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family.\n\nWe are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in . those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order.\n\nSuch cases, in our view, are covered by other part of rule 23.\n\nWe are, however, not concerned with that part.\n\nSo far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous.\n\nThe language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed -for the purposes of the Act to continue to be a Hindu undivided family.\n\nAs regards the second contention, Mr. Sen submits that the power which has been conferred byclause (j) of sub-section (2) of section 50 of the Act is to make rules prescribing the manner in which the tax shall be payable when the assessment is made on agricuhural income of a_ Hindu undivided or joint family and a partition of the property of such family has been effected after the date of such assessment.\n\nIt is urged that apart from that, the State Government has no power to make a rule for assessment of a Hindu undivided family after a partition takes place in such family.\n\nThis contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub-section (1) of section 50: According to that sub-section, the State Government may subject to previous publication make rules for carrying out the purposes of this Act.\n\nIt has not been disputed before us that there was previous publication of the rules in question.\n\nThe question is whether the\n\n/)-\n\npart of rule 23 reproduced above can be said to have been made for carrying out the purpose~ of the Act.\n\nThe answer to this question, in our opinion, should be in the affirmative.\n\nWhat the rule contemplates is that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed . for the purposes of the Act to continue to be Hindu undivided family.\n\nThe rule thus relates to the working of the Act.\n\nSection 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons.\n\nSuch a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which Hindu undivided family was assessed hitherto.\n\nThe rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family.\n\nThis is a matter of detail to carry out the purposes of the Act and the State Government in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section ( 1) of section 50 of the Act.\n\nThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis o~ the partition is made by the taxing authorities.\n\nSub-· section (1) of section 171 of the Income-tax Act 1961 provides that a Hindu undivided \"family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family.\n\nThe fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference.\n\nThe rules would be as much binding as would be the statutory provision in this respect.\n\nThe only requirement is that the rules should be validly made in exercise of the powers conferred by the Act.\n\nSo far as this aspect is concerned,. we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule.\n\nThe proposition is well settled that it is not unconstitutional for the legislature to leave it to the executive to detennine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like [see Pt. Banarsi Das\n\nv. State of Madhya Pradesh(')].\n\nIn that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947.\n\nThe said Act provided for exemption from taxation in res-\n\n(1) [1959] S.C.R. 427.\n\npect. of the supply of certain material.\n\nPower was also conferred upon the State Government to amend such exemption by notification.\n\nThis Court upheld the validity of that notification.\n\nWe may also refer to the case of Powell v. Appollo Candle Company Limited(') which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales.\n\nThat section conferred a power on the Governor to impose tax on certain articles of import.\n\nWhile repelling the challenge to the constitutional validity of that provision, the Privy Council observed :\n\n\"It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it.\n\nBut the duties levied under the Order-in-Council arc really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.\n\nIn these circumstances, their Lordships are of opinion that ,. the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature.\"\n\nIn Syed Mohamed & Co. v. The State of Madras(2), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.\n\nSection 5 (vi) of that Act had left it to the rnlemaking authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules wa~ attacked on the ground that it was only the legislature that was competent to decide who shall be taxed and that the determination of that question by the rule-making authorities was ultra vir.es. The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority\n\nunder section 5 (vi) was within permissible constitutional limits.\n\nPowell's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt. Banarsi Das.\n\nThe above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above .\n\nWe, therefore, uphold the judgment of the High Court and dismiss the appeals with costs.\n\nOne set of fee.\n\nP.B.R.\n\n(I) fl 885]\n\n10 A.C. 282,\n\n(2) J s:r.c. 367.\n\nAppeal;; dismissed.\n\n. G", "total_entities": 71, "entities": [{"text": "SASHI PRASAD BAROOAH", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SASHI PRASAD BAROOAH", "offset_not_found": false}}, {"text": "THE AGRICULTURE INCOME-TAX OFFICER, SHILLONG,\n\nASSAM ", "label": "RESPONDENT", "start_char": 22, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "THE AGRICULTURE INCOME-TAX OFFICER, SHILLONG, ASSAM & ORS", "offset_not_found": false}}, {"text": "January 19, 1977", "label": "DATE", "start_char": 83, "end_char": 99, "source": "ner", "metadata": {"in_sentence": "January 19, 1977\n\n(H. R. KHANNA AND R. S. SARKARIA, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 102, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Income Tax Rules", "label": "STATUTE", "start_char": 164, "end_char": 180, "source": "regex", "metadata": {}}, {"text": "Assam Agricultural Income-tax Rules, 1939", "label": "STATUTE", "start_char": 242, "end_char": 283, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1005, "end_char": 1013, "source": "regex", "metadata": {"linked_statute_text": "the Assam Agricultural Income-tax Rules, 1939", "statute": "the Assam Agricultural Income-tax Rules, 1939"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2367, "end_char": 2381, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Assam and Nagaland High Court in Civil Rules", "label": "STATUTE", "start_char": 3264, "end_char": 3308, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 3345, "end_char": 3354, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. N. Mukherjee and N. R. Choudhary for the Appellant."}}, {"text": "D. N. Mukherjee", "label": "OTHER_PERSON", "start_char": 3356, "end_char": 3371, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. N. Mukherjee and N. R. Choudhary for the Appellant."}}, {"text": "N. R. Choudhary", "label": "LAWYER", "start_char": 3376, "end_char": 3391, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. N. Mukherjee and N. R. Choudhary for the Appellant.", "canonical_name": "N. R. Choudhary"}}, {"text": "Purshottam Chatterjee", "label": "LAWYER", "start_char": 3412, "end_char": 3433, "source": "ner", "metadata": {"in_sentence": "Purshottam Chatterjee and S. N. Choudhary for the respondents."}}, {"text": "S. N. Choudhary", "label": "LAWYER", "start_char": 3438, "end_char": 3453, "source": "ner", "metadata": {"in_sentence": "Purshottam Chatterjee and S. N. Choudhary for the respondents.", "canonical_name": "N. R. Choudhary"}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 3520, "end_char": 3526, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.\n\nThe short question which arises for consideration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part <;>f rule 23 9f the Assam Agricultural Incometax Rules, 1939 (heremafter referred to as the rules) framed under section 50 of the Assam Agricultural Income-tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act) :\n\n\"Where an order apportioning the liability to the tax ."}}, {"text": "Assam Agricultural Incometax Rules, 1939", "label": "STATUTE", "start_char": 3748, "end_char": 3788, "source": "regex", "metadata": {}}, {"text": "section 50", "label": "PROVISION", "start_char": 3840, "end_char": 3850, "source": "regex", "metadata": {"linked_statute_text": "the Assam Agricultural Incometax Rules, 1939", "statute": "the Assam Agricultural Incometax Rules, 1939"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3877, "end_char": 3891, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "articles 226 and 227", "label": "PROVISION", "start_char": 4449, "end_char": 4469, "source": "regex", "metadata": {"linked_statute_text": "the Assam Agricultural Incometax Rules, 1939", "statute": "the Assam Agricultural Incometax Rules, 1939"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4477, "end_char": 4498, "source": "regex", "metadata": {}}, {"text": "Sashi Prasad Barooah", "label": "PETITIONER", "start_char": 4947, "end_char": 4967, "source": "ner", "metadata": {"in_sentence": "The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S. P. Barooah & Others.", "canonical_name": "SASHI PRASAD BAROOAH"}}, {"text": "January 1, 1945", "label": "DATE", "start_char": 5391, "end_char": 5406, "source": "ner", "metadata": {"in_sentence": "The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition."}}, {"text": "April 3, 1946", "label": "DATE", "start_char": 5595, "end_char": 5608, "source": "ner", "metadata": {"in_sentence": "A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms of sub-section ( 1) of section 19 of the Act calling upon persons whose agricultural income exceeded\n\nthe limits of taxable income to furnish returns within the specified A time."}}, {"text": "section 19", "label": "PROVISION", "start_char": 5697, "end_char": 5707, "source": "regex", "metadata": {"statute": null}}, {"text": "March 24, 1947", "label": "DATE", "start_char": 5857, "end_char": 5871, "source": "ner", "metadata": {"in_sentence": "On March 24, 1947 the appellant addressed a letter to the Agricultural Iucome-tax Officer praying for extension of ."}}, {"text": "May 10, 1947", "label": "DATE", "start_char": 6028, "end_char": 6040, "source": "ner", "metadata": {"in_sentence": "Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income-tax Officer stating that he was trying to expedite the submission of the return."}}, {"text": "February 15, 1951", "label": "DATE", "start_char": 6184, "end_char": 6201, "source": "ner", "metadata": {"in_sentence": "On February 15, 1951 the Agricultural Income-tax Officer addressed a communication to the appellant asking him to file the return by B March 14, 1951."}}, {"text": "March 16, 1951", "label": "DATE", "start_char": 6363, "end_char": 6377, "source": "ner", "metadata": {"in_sentence": "The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong."}}, {"text": "Shillong", "label": "GPE", "start_char": 6430, "end_char": 6438, "source": "ner", "metadata": {"in_sentence": "The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong."}}, {"text": "July 21, 1951", "label": "DATE", "start_char": 6461, "end_char": 6474, "source": "ner", "metadata": {"in_sentence": "In his letter dated July 21, 1951 the appellant informed the Agricultural Income-tax Officer that he would file his return as soon as some matters were settled."}}, {"text": "March 25, 1955", "label": "DATE", "start_char": 6606, "end_char": 6620, "source": "ner", "metadata": {"in_sentence": "On March 25, 1955 the appef.lant addressed another letter to the Agricultural Income-tax Officer stating that he had not received the relevant assessment orders made by the Incomec tax Officer (the income-tax officer under the Indian Income-tax Act,\n\n1922) relating to the assessment years 1946-47 onwards."}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 6830, "end_char": 6851, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 11, 1959", "label": "DATE", "start_char": 6914, "end_char": 6927, "source": "ner", "metadata": {"in_sentence": "On July 11, 1959 the following two notices were sent by the Agricultural Income-tax Officer to the appellant :\n\n\"I am to inform you that following the dissolution of family business of Sashi Prasad Barna and Others in the D year 1945, you are liable to furnish a Return of agricultural incomes including those from the Tea Estates under your ownership from the assessment year 1946-47."}}, {"text": "Sashi Prasad Barna", "label": "PETITIONER", "start_char": 7096, "end_char": 7114, "source": "ner", "metadata": {"in_sentence": "On July 11, 1959 the following two notices were sent by the Agricultural Income-tax Officer to the appellant :\n\n\"I am to inform you that following the dissolution of family business of Sashi Prasad Barna and Others in the D year 1945, you are liable to furnish a Return of agricultural incomes including those from the Tea Estates under your ownership from the assessment year 1946-47.", "canonical_name": "SASHI PRASAD BAROOAH"}}, {"text": "15-8-59", "label": "DATE", "start_char": 7431, "end_char": 7438, "source": "ner", "metadata": {"in_sentence": "Please also note that the Returns along with certified copies of Central Income-tax Assessment should reach this office on or before 15-8-59."}}, {"text": "section 19", "label": "PROVISION", "start_char": 8140, "end_char": 8150, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 8159, "end_char": 8169, "source": "regex", "metadata": {"statute": null}}, {"text": "December 27, 1962", "label": "DATE", "start_char": 8658, "end_char": 8675, "source": "ner", "metadata": {"in_sentence": "The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962."}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 10956, "end_char": 10959, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 11537, "end_char": 11547, "source": "ner", "metadata": {"in_sentence": "The above contentions have been controverted by Mr. Chatterjee on behalf of the respondents."}}, {"text": "Assam", "label": "GPE", "start_char": 12369, "end_char": 12374, "source": "ner", "metadata": {"in_sentence": "It may be apposite at this stage to refer to the material provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam."}}, {"text": "section 2(m)", "label": "PROVISION", "start_char": 12429, "end_char": 12441, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12507, "end_char": 12516, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam Finance Act", "label": "STATUTE", "start_char": 12639, "end_char": 12656, "source": "regex", "metadata": {}}, {"text": "section 6", "label": "PROVISION", "start_char": 12687, "end_char": 12696, "source": "regex", "metadata": {"linked_statute_text": "Assam Finance Act", "statute": "Assam Finance Act"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 12962, "end_char": 12972, "source": "regex", "metadata": {"linked_statute_text": "Assam Finance Act", "statute": "Assam Finance Act"}}, {"text": "Agricultural Income-tax Officer", "label": "RESPONDENT", "start_char": 13053, "end_char": 13084, "source": "ner", "metadata": {"in_sentence": "1 ) The Agricultural Income-tax Officer shall; on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every\n\nperson whose agricultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year :\n\nProvided that the Agricultural Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or :c1ass of persons;\n\n(2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial yeai the Agricultural Income-tax Officer may serve in that financial year a notice in the prescribed form upon him requiring him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year. ."}}, {"text": "1st April, 1939", "label": "DATE", "start_char": 13153, "end_char": 13168, "source": "ner", "metadata": {"in_sentence": "1 ) The Agricultural Income-tax Officer shall; on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every\n\nperson whose agricultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year :\n\nProvided that the Agricultural Income-tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or :c1ass of persons;\n\n(2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income-tax Officer, of such amount as to render such person liable to payment of agricultural income-tax for any financial yeai the Agricultural Income-tax Officer may serve in that financial year a notice in the prescribed form upon him requiring him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year. ."}}, {"text": "section 6", "label": "PROVISION", "start_char": 13413, "end_char": 13422, "source": "regex", "metadata": {"linked_statute_text": "Assam Finance Act", "statute": "Assam Finance Act"}}, {"text": "Section 20", "label": "PROVISION", "start_char": 14831, "end_char": 14841, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 14891, "end_char": 14901, "source": "regex", "metadata": {"statute": null}}, {"text": "section 19", "label": "PROVISION", "start_char": 15514, "end_char": 15524, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 50", "label": "PROVISION", "start_char": 15721, "end_char": 15731, "source": "regex", "metadata": {"statute": null}}, {"text": "section 50", "label": "PROVISION", "start_char": 18446, "end_char": 18456, "source": "regex", "metadata": {"statute": null}}, {"text": "section 50", "label": "PROVISION", "start_char": 19107, "end_char": 19117, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19854, "end_char": 19863, "source": "regex", "metadata": {"statute": null}}, {"text": "section 50", "label": "PROVISION", "start_char": 20802, "end_char": 20812, "source": "regex", "metadata": {"statute": null}}, {"text": "section 171", "label": "PROVISION", "start_char": 21043, "end_char": 21054, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act 1961", "label": "STATUTE", "start_char": 21062, "end_char": 21081, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 21397, "end_char": 21411, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 133", "label": "PROVISION", "start_char": 22833, "end_char": 22844, "source": "regex", "metadata": {"linked_statute_text": "In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947", "statute": "In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947"}}, {"text": "duties levied under the Order-in-Council arc really levied by the authority of the Act", "label": "STATUTE", "start_char": 23249, "end_char": 23335, "source": "regex", "metadata": {}}, {"text": "Supreme Court", "label": "COURT", "start_char": 23644, "end_char": 23657, "source": "ner", "metadata": {"in_sentence": "the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature.\""}}, {"text": "section 133", "label": "PROVISION", "start_char": 23681, "end_char": 23692, "source": "regex", "metadata": {"linked_statute_text": "But the duties levied under the Order-in-Council arc really levied by the authority of the Act", "statute": "But the duties levied under the Order-in-Council arc really levied by the authority of the Act"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 23925, "end_char": 23934, "source": "regex", "metadata": {"linked_statute_text": "But the duties levied under the Order-in-Council arc really levied by the authority of the Act", "statute": "But the duties levied under the Order-in-Council arc really levied by the authority of the Act"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 24475, "end_char": 24492, "source": "ner", "metadata": {"in_sentence": "The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority\n\nunder section 5 (vi) was within permissible constitutional limits."}}, {"text": "section 5", "label": "PROVISION", "start_char": 24599, "end_char": 24608, "source": "regex", "metadata": {"statute": null}}, {"text": "Powell", "label": "OTHER_PERSON", "start_char": 24661, "end_char": 24667, "source": "ner", "metadata": {"in_sentence": "Powell's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt."}}, {"text": "Syed Mohamed", "label": "OTHER_PERSON", "start_char": 24698, "end_char": 24710, "source": "ner", "metadata": {"in_sentence": "Powell's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt."}}, {"text": "Banarsi Das", "label": "OTHER_PERSON", "start_char": 24775, "end_char": 24786, "source": "ner", "metadata": {"in_sentence": "Banarsi Das."}}]}
{"document_id": "1977_2_654_659_EN", "year": 1977, "text": "R. DALMIA v.\n\nCOMMISSIONER OF INCOME-TAX, NEW DELHI\n\nJanuary 19, 1977\n\n[R. S. SARKARIA AND P. S. KAILASAM, JJ.J\n\nIndian Income Tax Act (XI of 1922)-s. 2(6C) (iii)-Scope of-\"Person concerned in the management of b11siness\"-Meanin11 of.\n\nWords and plzrases-\"concerned\", \"manage\", meaning of.\n\nSection 2(6C) (iii) of the Income-tax Act, 1922 provides that the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in .the company (that is to. say, who .is concerned in the management of the busmess of the company, bemg beneficial owner of shares, not being shares entitled to fixed rate of dividend carrying not less than 20% of !he voting power) and any sum paid by any such company in respect of anv obligation which, but for such appointment, w011ld have been payable by the director or other person aforesaid is income ..\n\nThe assessee was the beneficial owner of 1800 out of 3000 equiiy shares of a company.\n\nHe was, however, not its director.\n\nHe had a similar int<:rest in another company.\n\nBoth the companies had spent on his personal necessities a large sum of money, which the Income-tax Officer treated as his income under s. 2(6C) (iii) of the Act.\n\nThe Appellate Assistant Commissioner, as also the Tribunal, dismissed his appeal against the order of the Income-tax Officer and the High Court answered the reference against the assessee. . ' In appeal to this Court it was contended that the expression \"concerned\" in the management of the business of the company takes in only the person wh•\n\nlegally participates in the management of its business and not one who has only remote control of its business, even if he had the majority of voting power.\n\nDismissing the appeal,\n\nHELD : The expression \"person concerned in the management of business\" may take in not only a person who directly participates or engages in the management of the business but also one who indirectly controls its management through the managerial staff from behind the scenes.\n\n[657 BJ\n\n1. (a) The term \"concerned\" in s. 2(6C)(iii) cannot be restricted to a per son who is an employee of the business OL, an office-holder of the company.\n\nIn the context of \"management\" it is wide enough to include every person \"ifllerested\" in the management, in the sense of having the direction and control of the managerial staff. [659 C-D]\n\n(b) The word \"concerned\" is not a term of art, having a precise and fixed meaning. It has several nuances, and is used to convey diverse shades of meaning. It may mean \"to have a relation to. or bearing on, be of interest or importance\" or ''to have an anxiety, worry''. \"Concerned\" as an adjective may n1ean \"interested\", \"involved\".\n\nIn one context, it may mean one thing and in a different context another. [658 G-HJ\n\n(c) The word \"concerned\" takes its colour from the words \"in the management of the business\" in associatiop with which it occurs.\n\nJn the context of business, \"manage\" means \"to control, to guide, to administer to conduct or direct affairs', carry on 'business. \"Management\" includes the act of manageing by direction or regulation or administration or control or superintendence.\n\n[658 H, 659 A]\n\n(2) The .fast part of the clause is. confined to the obtaini_ng of the value of any benefit or perquisite from a company by a director, eveJ! if he has no subs- ·. tantial interest in the company. The second part applies to a person who may riot be a director but has a substantial interest iri the company. What is .\"subs- . tantial interest'' is further equated by the succeeding expression \"that is to say\"\n\nwith the co-existence of two elements, namely, (i) concern in the management of the business of the company and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than 20% of\n\nthe voting power. [657 G-HJ\n\nIn the instant case, the ass,, ssee. obtained the benefit from the company holding 1800 out of 3000 shares, that is, carrying a voting power of 60% and, therefore, satisfied the second element. His own admission that he was in\n\nB a\n\ncontrol of the company necessarily includes an admission of his being \"conerned in the management of the business of the company\". [658 A-BJ\n\n'- CIVIL APPELLATE. JURISDICTION: Civil Appeal No. 283 of 1972.\n\nAppeal by Special Leave from the Judgment and Order dated\n\n,~ 12-7~1971 of the Delhi High Court .in Income Tax Reference No. 31 of 1967.\n\n. .I\n\nBishamber Lal for the Appellant.\n\nV. S. Desai, !. Ramamurthi and R. N. Sachthey for the Res- D pondent.\n\nTl1e Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThis appeal by special leave is directed against a judgment, dated July 12, 1971, of the High Court of Delhi. It ariss out of these facts :\n\nThe. appellant (hereinafter referred to as the assessee) is an individual.\n\nThe assessment year is 19 5 5-5 6.\n\nBharat Union Agencies Pvt. Ltd. had spent Rs. 53,398/- after the personal necessities of the assessee during the previous year ending 30-9-1964, without charging for the same.\n\nThe assessee was not a director of the said Company.\n\nHe however was the beneficial owner F of 1800 shares out of the total of 3000 equity shares of the said Com- pany during the previous year.\n\nSimilarly, Allen Berry and Co. Pvt. t Ltd .. had spent a sum of Rs. 4406/- after the personal necessities of the assessee, without charging for the same.\n\nThe Income-tax Officer treated the total benefit of Rs. 57,804/- received by the assessec from these two Companies, as his 'income' G under s. 2(6C) (iii) of the Income-tax Act, 1922 which was introduced by the Finance Act, 1955 with effect from 1-4-1955, and charged it, to tax along with some other items of income.\n\nThe assessee carried an appeal to the Appellate Assistant Commissioner who found th11, t the assessee was beneficial owner of the shares of Bharat Union Agencies. Pvt. Ltd. carrying more than 20 per H cent of the voting power.\n\nHe further held on the basis of certain findings in the Report of the Commission of Inquiry on the administration of Dalmia Jain Companies published in 1963, that the assessee\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nhad 100 per cent of the share-holding control of Allen Berry and Co. Pvt. Ltd.\n\nThe Appellate Assistant Commissioner did not specifically deal with the question whether the assessee was \"concerned in the management\" of both these Companies.\n\nIn the result he upheld the order of the Income-tax Officer.\n\nThe assessee preferred a further appeal to the Inc:ome-tax Appellate Tribunal which held that the asscssee was \"concerned in the management of the Bha.rat Union Agencies (P) Ltd., being the beneficial owner of shares carrying more than 20% of the voting power, and as such the benefit of Rs. 53,398/- received by him from that Company was his 'income' within the later part of Clause (iii) of s. 2(6C) of the Income-tax Act, 1922.\n\nOn this reasoning the Tribunal dismissed the assessee's appeal in regard to the item of Rs. 53,398/-. However, it allowed, on a different ground his appeal with regard to the item of Rs. 4406/- received from Allen Berry and Co. (P) Ltd.\n\nIn this appeal we are not concerned with that item any more.\n\nAt the iristance of the assessec, the Tribunal stated the case and referred the following question under s. 66 ( 1) of the Income-tax Act, D 1922 to the High Court :\n\n\"Whether on the facts and in the circumstances of the case, the sum of Rs. 53,398/- spent by Bharat Union Agencies P. Ltd. after the personal necessities of the assessee is income within the meaning of section 2(6C) (iii) of the Income-tax Act, 1922\".\n\nThe High Court answered this question against the assessee. Hence this appeal.\n\nAt the outset, Shri Bishamber Lal, appearing for the appellant, tried to contend that the item of Rs. 53,398/- received by the assessee from Bharat Union Agencies Pvt. Ltd. was not a \"benefit or perquisite\" within the contemplation of s. 2(6C) (iii) of the 1922 Act because, firstly, the constituents of this item were not cash amounts 1 but gifts or bounties, and secondly, the receipt of this benefit by the assessee was unauthorised and could not be claimed by him as of right on the basis of any agreement with the Company.\n\nThis was altogether a new plea. It was not even indirectly raised before the authorities under the Income-tax Act or the High Court.\n\nlt has not been raised even in the Special Leave Petition under Article 136 of the Constitution.\n\nIt was never the case of the assessee that this amount of Rs. 53,398/- was not \"benefit obtained\", by the assessee from the Company within the meaning of s. 2 ( 6C) (iii). On the contrary it is apparent from the judgment of the Tribunal. that there was \"no dispute about the fact that the assessee received benefits from both the Companies to the extent stated by the authorities below\", i.e. benefits to the extent of Rs. 53,398/- and Rs. 4406/\" were received by the assessee from Bharat Union Agencies P.\n\nLtd. and Allen Berry and Co. Pvt. Ltd. respectively.\n\nThe plea now sought to\n\nbe raised in regard to the item of Rs. 53,398/- involvs a question of fact.. We therefore did not permit the Counsel to raise this plea for the first time at the time of arguments before us.\n\nCounsel next contended that the expression \"concerned in . tl.\\! management of the business of the Company\" takes in only that person who by virtue of a position or office held by him in the Company, legally and actually participates in the management of its business and not he who holds no such position or office but is in remote control of the Company and its affairs merely on account of being in ownership of a certain number of shares, carrying more than 20 per cent or even the majority of the voting power. In support of this restricted construction of the term \"concerned'', Counsel referred to a decision of the Madras High Court in Arya Bhavan, Madras v. M. S. Narayana Rao('), wherein Rajamannar C.J. held that the word \"concerned\" as used in the context of 'workman' in s. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, connotes a more intimate and direct relation to the matter than the word \"interest\" and therefore this term should be given a more restricted meaning than the word \"interest\".\n\nMr. Bishamber Lal also referred to the meaning of the terms \"concerned\", \"concerning\" as given in the Dictionary, \"Words and Phrases\", Permanent Edition pp. 504-505 Vol. 8.\n\nBefore dealing with this contention, it will be appropriate to examine the material part of s. 2(6C) (iii) of the 1922 Act, which runs as fo!Jows:\n\n\"(iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid.\"\n\nFrom an analysis of Clause (iii), it is clear that it falls in two distinct parts. The first part is confined to the obtaining of the value of any benefit or perquisite from a Company by a director, even if G he has no substantial interest in the Company.\n\nThe second part applies to a person who may not be a director but has a substantial interest in the Company.\n\nWhat is \"substantial interest\" is further equated by the succeeding expression, \"that is to say\", with the coexistence of two clements, namely, (i) concern in the management of the business of the Company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less H than twenty per cent of the voting power.\n\nThere is no dispute before\n\n(1) A.l.R. 1960 Mad. 143.\n\nSUPREME COURT REPQRTS\n\n(1977] 2 S.C.R.\n\nA us that the assessee had obtained the benefit of Rs. 53,398/- from Bharat Union Agencies Pvt. Ltd.\n\nIt is further admitted that he holds 1800 shares out of the total of 3000 equity shares in this Company, carrying a voting power of 60 per cent.\n\nThus, the existence of the secortd element is more than satisfied.\n\nControversy pivots around the first element, only.\n\nB The arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expression \"concerned in the management\" of the business of the Company, were canvassed before the Tribunal, also.\n\nThe Tribunal repelled these arguments.\n\nThe reasoning of the Tribunal-with which the High Court found itself entirely in agreement-is as under :\n\nC \"Shri Sharma conceded the position that the assessee was controlling both the Companies in question ... To exercise control over a Company is something more than. to manage the Company.\n\nA person who manages the company may not necessarily be in a position to control the business or affairs of the Company.\n\nHe may be managing under the instructions of those who are controlling the Company.\n\nBut D a person who controls a Company also directly or indirectly through the managerial staff manages the business of the Company.\n\nIt is again not necessary that the person who manages the business of the Company should be rightfully entitled to do it.\n\nA person who is not rightfully entitled to manage the business of the Company but usurps the power by virtue of his certain position, is, in our opinion, certainly E a person covered by this expFession. It is also not necessary ... that the management should be carried on in an ostensible manner.\n\nOne who carried on the management indirectly and imperceptibly through the persons who outwardly and ostensibly carry on the. management is covered by the expression. It is not necessary, in our opinion, that the management should be both seen, and felt; it is sufficient F if it is felt, without being seen.\"\n\nIn our opinion, the above is a correct exposition of the law on the point.\n\nThe word \"concern\" is not a term of art, having a precise, fixed meaning.\n\nIt has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean \"to have a relation to, or bearing on, be of interest or, importance\" or \"to have an anxiety, worry\". \"Concerned\" as an adjective may mean \"interested\", \"involved\".\n\nIn one context, it may mean one thing, and in a different context another.\n\nThe decisions as to the meaning of. this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned.\n\nThe best way therefore to construe this word is with reference to the context in which it is used.\n\nIn sub-clause (iii) of s. 2(6C) of the Income-tax Act, 1922, the word \"concerned\" takes its colour from the words \"in the management of the business\" in association with which it occurs.\n\nIn the context of . ):msiness, \"manage\" means \"to control, to guide, to administer, to conduct or direct affairs;\n\n...\n\nR. DALMIA v. GOMM. OF J.T. (Sarkaria, /.) 659\n\ncarry on 'business' (Shorter Oxford Dictionary, Webster New World\n\nDictionary). \"Management\" includes the act of managing by direction, or regulation, or administration or control or superintendence.\n\nConstrued with reference to the context, and the circumstances of\n\na case, the expression \"person concerned in the management of the business\" may take in not only a person who directly participates or engages in the management of the business but also one who indirectly B controls its management through the managerial staff, from behind the scenes.\n\nThe assessee's admission that he is in control of the Company necessarily includes an admission of his being \"concerned in the management of the business of the Company\", We, therefore, agree with the High Court, that the ambit of the term \"concerned\" in s. 2(6C) (iii) cannot be restricted to a person who is an employee of the business or an office-holder of the Company. In the context of C \"management\" it is wide enough to include every person 'interested' in the management, in the sense of having the direction and control of the managerial staff.\n\nOn the facts of the case, the assessee was such a person.\n\nWe are therefore, of opinion that the High eourt was right in answering the question referred to it, against the assessee.\n\nThe appeal fails and is dismissed with costs.\n\nP.B.R .\n\nAppeal dismissed.\n\n8-l 12SCI/77", "total_entities": 50, "entities": [{"text": "R. DALMIA", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "R. DALMIA", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, NEW DELHI", "label": "RESPONDENT", "start_char": 14, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, NEW DELHI", "offset_not_found": false}}, {"text": "January 19, 1977", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "R. DALMIA v.\n\nCOMMISSIONER OF INCOME-TAX, NEW DELHI\n\nJanuary 19, 1977\n\n[R. S. SARKARIA AND P. S. KAILASAM, JJ.J\n\nIndian Income Tax Act (XI of 1922)-s."}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 72, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ", "label": "JUDGE", "start_char": 91, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Indian Income Tax Act", "label": "STATUTE", "start_char": 113, "end_char": 134, "source": "regex", "metadata": {}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 148, "end_char": 156, "source": "regex", "metadata": {"linked_statute_text": "Indian Income Tax Act", "statute": "Indian Income Tax Act"}}, {"text": "Section 2(6C)", "label": "PROVISION", "start_char": 291, "end_char": 304, "source": "regex", "metadata": {"linked_statute_text": "Indian Income Tax Act", "statute": "Indian Income Tax Act"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 318, "end_char": 338, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 1252, "end_char": 1260, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 2(6C)(iii)", "label": "PROVISION", "start_char": 2125, "end_char": 2138, "source": "regex", "metadata": {"statute": null}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 4515, "end_char": 4528, "source": "ner", "metadata": {"in_sentence": ".I\n\nBishamber Lal for the Appellant.", "canonical_name": "Bishamber Lal"}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4549, "end_char": 4560, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, !."}}, {"text": "Ramamurthi", "label": "OTHER_PERSON", "start_char": 4565, "end_char": 4575, "source": "ner", "metadata": {"in_sentence": "Ramamurthi and R. N. Sachthey for the Res- D pondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4580, "end_char": 4594, "source": "ner", "metadata": {"in_sentence": "Ramamurthi and R. N. Sachthey for the Res- D pondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 4665, "end_char": 4673, "source": "ner", "metadata": {"in_sentence": "Tl1e Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThis appeal by special leave is directed against a judgment, dated July 12, 1971, of the High Court of Delhi."}}, {"text": "Bharat Union Agencies Pvt. Ltd.", "label": "ORG", "start_char": 4932, "end_char": 4963, "source": "ner", "metadata": {"in_sentence": "Bharat Union Agencies Pvt."}}, {"text": "Allen Berry and Co. Pvt. t Ltd", "label": "ORG", "start_char": 5315, "end_char": 5345, "source": "ner", "metadata": {"in_sentence": "Similarly, Allen Berry and Co. Pvt."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 5599, "end_char": 5607, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 5621, "end_char": 5641, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Finance Act, 1955", "label": "STATUTE", "start_char": 5670, "end_char": 5687, "source": "regex", "metadata": {}}, {"text": "1-4-1955", "label": "DATE", "start_char": 5705, "end_char": 5713, "source": "ner", "metadata": {"in_sentence": "57,804/- received by the assessec from these two Companies, as his 'income' G under s. 2(6C) (iii) of the Income-tax Act, 1922 which was introduced by the Finance Act, 1955 with effect from 1-4-1955, and charged it, to tax along with some other items of income."}}, {"text": "Bharat Union Agencies. Pvt. Ltd.", "label": "ORG", "start_char": 5918, "end_char": 5950, "source": "ner", "metadata": {"in_sentence": "The assessee carried an appeal to the Appellate Assistant Commissioner who found th11, t the assessee was beneficial owner of the shares of Bharat Union Agencies."}}, {"text": "Dalmia Jain Companies", "label": "ORG", "start_char": 6123, "end_char": 6144, "source": "ner", "metadata": {"in_sentence": "He further held on the basis of certain findings in the Report of the Commission of Inquiry on the administration of Dalmia Jain Companies published in 1963, that the assessee\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nhad 100 per cent of the share-holding control of Allen Berry and Co. Pvt."}}, {"text": "Allen Berry", "label": "OTHER_PERSON", "start_char": 6272, "end_char": 6283, "source": "ner", "metadata": {"in_sentence": "He further held on the basis of certain findings in the Report of the Commission of Inquiry on the administration of Dalmia Jain Companies published in 1963, that the assessee\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nhad 100 per cent of the share-holding control of Allen Berry and Co. Pvt."}}, {"text": "Bha.rat Union Agencies (P) Ltd.", "label": "ORG", "start_char": 6674, "end_char": 6705, "source": "ner", "metadata": {"in_sentence": "The assessee preferred a further appeal to the Inc:ome-tax Appellate Tribunal which held that the asscssee was \"concerned in the management of the Bha.rat Union Agencies (P) Ltd., being the beneficial owner of shares carrying more than 20% of the voting power, and as such the benefit of Rs."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 6920, "end_char": 6928, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 6936, "end_char": 6956, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Allen Berry and Co. (P) Ltd.", "label": "ORG", "start_char": 7167, "end_char": 7195, "source": "ner", "metadata": {"in_sentence": "4406/- received from Allen Berry and Co. (P) Ltd.\n\nIn this appeal we are not concerned with that item any more."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 7364, "end_char": 7369, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7382, "end_char": 7396, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bharat Union Agencies P. Ltd.", "label": "ORG", "start_char": 7519, "end_char": 7548, "source": "ner", "metadata": {"in_sentence": "53,398/- spent by Bharat Union Agencies P. Ltd. after the personal necessities of the assessee is income within the meaning of section 2(6C) (iii) of the Income-tax Act, 1922\"."}}, {"text": "section 2(6C)", "label": "PROVISION", "start_char": 7628, "end_char": 7641, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 7655, "end_char": 7675, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 7994, "end_char": 8002, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8387, "end_char": 8401, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 8486, "end_char": 8497, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8674, "end_char": 8678, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Bharat Union Agencies P.\n\nLtd.", "label": "ORG", "start_char": 9002, "end_char": 9032, "source": "ner", "metadata": {"in_sentence": "4406/\" were received by the assessee from Bharat Union Agencies P.\n\nLtd. and Allen Berry and Co. Pvt."}}, {"text": "Allen Berry and Co. Pvt. Ltd.", "label": "ORG", "start_char": 9037, "end_char": 9066, "source": "ner", "metadata": {"in_sentence": "4406/\" were received by the assessee from Bharat Union Agencies P.\n\nLtd. and Allen Berry and Co. Pvt."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 9921, "end_char": 9938, "source": "ner", "metadata": {"in_sentence": "In support of this restricted construction of the term \"concerned'', Counsel referred to a decision of the Madras High Court in Arya Bhavan, Madras v. M. S. Narayana Rao('), wherein Rajamannar C.J. held that the word \"concerned\" as used in the context of 'workman' in s. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, connotes a more intimate and direct relation to the matter than the word \"interest\" and therefore this term should be given a more restricted meaning than the word \"interest\"."}}, {"text": "Rajamannar", "label": "JUDGE", "start_char": 9996, "end_char": 10006, "source": "ner", "metadata": {"in_sentence": "In support of this restricted construction of the term \"concerned'', Counsel referred to a decision of the Madras High Court in Arya Bhavan, Madras v. M. S. Narayana Rao('), wherein Rajamannar C.J. held that the word \"concerned\" as used in the context of 'workman' in s. 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, connotes a more intimate and direct relation to the matter than the word \"interest\" and therefore this term should be given a more restricted meaning than the word \"interest\"."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 10082, "end_char": 10087, "source": "regex", "metadata": {"statute": null}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 10328, "end_char": 10341, "source": "ner", "metadata": {"in_sentence": "Mr. Bishamber Lal also referred to the meaning of the terms \"concerned\", \"concerning\" as given in the Dictionary, \"Words and Phrases\", Permanent Edition pp.", "canonical_name": "Bishamber Lal"}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 10590, "end_char": 10598, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT REPQRTS\n\n(1977] 2 S.C.R.", "label": "COURT", "start_char": 12091, "end_char": 12129, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPQRTS\n\n(1977] 2 S.C.R.\n\nA us that the assessee had obtained the benefit of Rs."}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 12901, "end_char": 12907, "source": "ner", "metadata": {"in_sentence": "The reasoning of the Tribunal-with which the High Court found itself entirely in agreement-is as under :\n\nC \"Shri Sharma conceded the position that the assessee was controlling both the Companies in question ... To exercise control over a Company is something more than."}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 14977, "end_char": 14985, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 14993, "end_char": 15013, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(6C)", "label": "PROVISION", "start_char": 16118, "end_char": 16126, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_660_665_EN", "year": 1977, "text": "TOWN MUNICIPAL COUNCIL\n\nURMILLA KOTHARI\n\nJanuary 20, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nKa_rnataka Municipalities Act, 1964-Sec. 124-Karnataka Mu11icipalities T_axatu:n .Rules, 1965-Rule 26-Trncks pa, rsing on the highways within muni- ,.t c1pal /lm1ts-Whether octroi payable-Meaning of \"brought into\" and \"immediate exportation\".\n\nThe rspWldent is a transporter. The respondent lifts the iron ore in his trucks from Hubli Railway yard and carries it to Karwar and Belekeri harbours.\n\nThe trucks of the respondent have to pass in the course of transit through the limits of various Town Municipalities situate on the highway of which the appellant happens to be one.\n\nThe respondent does not nnload or re-load the iron ore at any intermediary point or stop. The appellant passed a resolution in purported exercise of s. 124 of the Karnataka Municipalities Act; 1964 read with rule 26 of the Karnataka Municipalities Taxation Rules, 1965, imposing a fee of Re. 1 /- per trip of each tmck. The respondent filed a writ petition challenging the levy of the fee.\n\nThe learned single Judge of the High Court\n\n<limissed the writ petition. The Division Bench, however, allowed the appeal.\n\nDismissing the appeal by ce1iificate,\n\nHELD : The present case is not covered by \"any article or animal brought into the municipal limits for the purpose of immediate exportation\" mentioned in s. 124. \"Brought into\" and \"immediate exportation\" do not comprehend within their sweep the coptinuous process of tranit of goods by vehicles which merely use the State High W1y passing through the areas which lie within 1.he municipal limits. In the instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within the .nunicipal limits and is not unloaded and reloaded at any place within the mc.1icipal areas. The continuity or continuous process of the carriage of iron ore is not in any way, in fact, broken within the municipal limits. The respondent cannot be said either to bring in or export the iron ore as contemplated by s. 124 of the Act read with Rule 26 of the Rules and, as such, is not liable to pay octroi or what is styled as supervision fee.\n\nA contrary interpretation would make rail borne goods passing through the Railway Station within the limits of the municipality liable to the imposition of the fee on their arrival at the Railway Station and departure therefrom which could not be the intention of the \"Legislature. [662 G-H, 664 B, G-H, 665 A-BJ\n\nTke Central India Spinning and Weavi1111 and Manufacturing Company ~- Limited, the Empire Mills, Nagpur v. The Municipal Committee, Nagpur [19581 SCR 1102=AIR 1958 SC 352, followed.\n\nBrown v. State of Maryla11d (1827) 12 Wheat -419, 442: 6 L. Ed. 678, 686 and Wilson v. Robertson 24 L.J.Q.B. 185, quoted with approval.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1386 of\n\n1~76.\n\nFrom the Judgment and Order dated 21-9-76 of the Karnataka High Court in W.A. No. 150 of 1976.\n\nH H. B. Datar, Sanjeev Aggarwal and R. B. Datar for the Appellant.\n\nS. T. Desai, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent.\n\nThe Judgment of the Court was delvered by\n\nJASWANT SINGH, J.\n\nThis appeal by certificate which is directed against the judgment and order dated September 21, 1976, of tho High Court of Karnataka at Bangalore reversing the judgment and order dated March 3, 1976 of a Single Judge of .that Court dismissing writ petition No. 6945 of 1975 filed by the respondent involves a substantial question of law of general public importance relating to the validity of the levy of what is styled as 'supervision fee' under section 124 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act') read with rule 26 of the Karnataka Municipalities Tax(!tion Rules, 1965 (hereinafter referred to as 'the Rules').\n\nThe facts of the case lie in a short compass and may be stated as follows:- Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking.\n\nHaving taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited.\n\nThe latter has in turn entrusted the execution of the contract to the respondent which is engaged in transport business.\n\nThe iron ore is accordingly lifted by the respondent in its trucks from Hubli Railyard and carried to Karwar and Belekeri harbours.\n\nThe trucks of the respondent carrying the iron ore have (en route) to pass in the course of transit through the limits of various town municipalities situate on the highway of which the appellant happens to be one, but they do not unload and reload the iron ore at any intermediary point or stop.\n\nThe appellant, on the basis of a resolution passed by it on January 25, 1975, and approved by the State Government levies the aforesaid fee of Re. 1/- per truck under section 124 of the Act read with rule 26 of the Rules.\n\nThe trucks of the respondent using the State highway within the municipal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips.\n\nFeeling that the fee realised by the appellant was invalid, the respondent filed a writ petition, being writ petition No. 6945 of 1975 in the High Court of Karnataka challenging the levy of the fee and seek· ing the issuance of a writ of mandamus restraining the appellant from realising the said fee.\n\nA Single Judge of the High Court upheld the fee in question and dismissed the writ petition holding that the expression 'importer', 'place of import' and 'place of export' a8 used in section 124(1) of the Act are comprehensive enough to describe a person who merely brings the goods within the municipal limits for immediate exportation and the respondent who answered that description was bound to pay the fee. Aggrieved by this judgment and order, the respondent took the matter in appeal to a Division Bench of. the High Court which a1lowed the appeal and issued the writ prayed for by the respondent by its\n\nA !udgment and order dated September 21, 1976. It is against this Judgment and order that the present appeal is directed.\n\nAt the hearing of the appeal, counsel have reiterated the contentions urged on behalf of the parties in the High Court.\n\nThe sole question that arises for determination in this appeal relates to the validity of the aforesaid levy.\n\nFor a proper determination of this question, it is necessary to advert to section 124 of the Act and rule 26 of the Rules.\n\n\"Section 124 : Non-liability for octroi and refund of octroi on } goods in transit.- 1 c\n\n(1) Any article or animal brought into the municipal limits for the purpose of immediate exportation may at the option of the importer not to be subjected to lfvy of octroi if such article or animal be conveyed direct from the place of import to the place of export by such routes, within such time, and under such supervision as the municipal council may by resolution determine.\n\nFor purposes of this subsection the municipal council shall on payment of the prescribed fees issue promptly the necessary transport permits .\n\n. (2) When any article in respect of which octroi has been paid is exported from the municipal limits, in the same condition in which it was brought into or received from beyond the municipal limits, the amount of octroi paid shall, subject E to such rules as may be prescribed, be refunded.\"\n\n\"Rule 26 : ... In case the person bringing the goods wishes to transport the goods at once beyond the limits of the municipality he shall do so only after obtaining a transport permit in Form IV, on payment of a fee of rupees two for each lorry and rupee one in other cases in the case of a city municipal council and rupee one for each lorry and fifty paise in other cases in the case of a town municipal council.\"\n\nThe opening words of section 124 of the Act viz. \"any article or animal brought into the municipal limits for the purpose of immediate exportation\" on the construction of which the up-shot of the case depends are very important.\n\nThey imply processes of 'importing into' and 'exporting from' the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits.\n\nAs rightly held bv the Division Bench of the High Court, the expressions 'brought into' and 'immediate exportation' do not comprehend within their sweep the continuous process of transit of goods, by vehicles which merelv use the State highways passing through the areas which lie within the municipal limits.\n\nIn the instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within the municipal limits and is not unloaded and reloaded at any place within the municipal\n\n\"•·\n\narea.\n\nAs such, the important element of repose and rest which the words 'brought into the municipal limits for the purpose of immediate exportation' imply is absent in the instant case.\n\nIn The Central India Spinning and Weaving and Manufacturing Company Limited, The Empire Mills, Nagpur v. The Municipal Committee, Nagpur('), this Court while discussing the meaning of the expression 'a terminal tax on goods or animals imported into or exported from the limits of the municipality' occurring in section 66(1) (o) of the C.P. and Berar Municipalities Act, 1922, hold that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax.\n\nThe following observations made therein which have an important bearing on the decision of the present appeal are worth quoting :-\n\n\"The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of whirh are \"terminal tax\", \"imparted into or exported from\" and \"the limits of the Municipality\".\n\nIn construing these word~ of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. . . . . . . Lexico-logically they (the words 'import' and 'export') do not have any reference to goods in 'transit' a word derived from transit bearing a meaning similar to transport, i.e. to g9 across.\n\nThe dictionary meaning of the words 'import' and 'export' is not restricted to their derivative meaning but bear other connotations also. . ... The word \"transit\", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (something) to traverse, to cross.\n\nEven according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods \"imported into or exported from\" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur ..... By giving to the words \"imported into or exported from\" their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended.\n\nThe effect of the construction of \"import\" or \"export\" in the manner insisted upon by the respondent would make rail-borne goods passing through a railway staton within the limits of a Municipality liable to the imposition of the tax on their arrival at the railway station or\n\n(!) (1958] S.C.R. 1102=A.T.R. 1958 S.C. 352.\n\nA departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State.\n\nIt is hardly likely that that was the intention of the Legislature.\n\nSuch an interpretation would lead to absurdity which has, according to the rules of interpretation, to be avoided.\"\n\nThe enunciation of law in the above case fully covers the present case. In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor exported from any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination. In Brown\n\nv. State of Maryland('), Chief Justice Marshall dealing with the word 'importation' said as follows :--\n\n\"The practice of most commercial nations conforms to this idea.\n\nDuties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country.\n\nThus sea-stores, goods imported and re-exported in the same vessel, goods landed and carried over land for the purpose of being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties.\n\nThe whole course of legislation on the subject shows that in the opinion of the legislature the right to sell is connected with the payment of the duties.\" '\n\nIn Wilson v. Robertson(2) where section 33 of The 48 Geo; 3, c.\n\nciv. imposed a duty on all goods \"imported into or exported from Berwick Harbour'', and the harbour extended from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commissioners' rings and posts in order to moor the vessel while lowering the masts, passed through Berwick Bridge and unloaded her cargo about 200 yards above the bridge and beyond the limits of the harobur; it was held that these goods were not \"imported into\" the harbour and as such liable to duty.\n\nBearing in mind the above authoritative enunciation of law, we are of opinion that as the continuity or continuous proces~ of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rnle 26 of the Rules and as such is not liable to pay the octroi or what is styled as 'supervision _fee'.\n\nA contrary nterpretaton woud . make rail borne goods passmg through the Railway Stations w1thm the\n\n(!) 1827 12 Wheat 419=442=6 L. Ed. 678. 686.\n\n(2) 24 L.J.Q.B. 185.\n\nlimits of the municipality liable to the imposition of the fee on their A arrival at these Railway Stations and departure therefrom which could not be the intention of the Legislature.\n\nThe High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.\n\nIn the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.\n\nP.H.P. .ppeal dismissed.", "total_entities": 45, "entities": [{"text": "TOWN MUNICIPAL COUNCIL", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "TOWN MUNICIPAL COUNCIL", "offset_not_found": false}}, {"text": "URMILLA KOTHARI", "label": "RESPONDENT", "start_char": 24, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "URMILLA KOTHARI", "offset_not_found": false}}, {"text": "January 20, 1977", "label": "DATE", "start_char": 41, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "TOWN MUNICIPAL COUNCIL\n\nURMILLA KOTHARI\n\nJanuary 20, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 60, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 77, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Municipalities Act, 1964", "label": "STATUTE", "start_char": 123, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "Sec. 124", "label": "PROVISION", "start_char": 148, "end_char": 156, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1964", "statute": "Municipalities Act, 1964"}}, {"text": "Karwar", "label": "GPE", "start_char": 478, "end_char": 484, "source": "ner", "metadata": {"in_sentence": "The respondent lifts the iron ore in his trucks from Hubli Railway yard and carries it to Karwar and Belekeri harbours."}}, {"text": "s. 124", "label": "PROVISION", "start_char": 841, "end_char": 847, "source": "regex", "metadata": {"linked_statute_text": "Municipalities Act, 1964", "statute": "Municipalities Act, 1964"}}, {"text": "Karnataka Municipalities Taxation Rules, 1965", "label": "STATUTE", "start_char": 915, "end_char": 960, "source": "regex", "metadata": {}}, {"text": "s. 124", "label": "PROVISION", "start_char": 1399, "end_char": 1405, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Municipalities Taxation Rules, 1965", "statute": "the Karnataka Municipalities Taxation Rules, 1965"}}, {"text": "s. 124", "label": "PROVISION", "start_char": 2090, "end_char": 2096, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1958 SC 352", "label": "CASE_CITATION", "start_char": 2689, "end_char": 2704, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2854, "end_char": 2882, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "H H. B. Datar", "label": "LAWYER", "start_char": 3014, "end_char": 3027, "source": "ner", "metadata": {"in_sentence": "H H. B. Datar, Sanjeev Aggarwal and R. B. Datar for the Appellant."}}, {"text": "Sanjeev Aggarwal", "label": "LAWYER", "start_char": 3029, "end_char": 3045, "source": "ner", "metadata": {"in_sentence": "H H. B. Datar, Sanjeev Aggarwal and R. B. Datar for the Appellant."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 3050, "end_char": 3061, "source": "ner", "metadata": {"in_sentence": "H H. B. Datar, Sanjeev Aggarwal and R. B. Datar for the Appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 3082, "end_char": 3093, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 3095, "end_char": 3106, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 3108, "end_char": 3122, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 3127, "end_char": 3137, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent."}}, {"text": "section 124", "label": "PROVISION", "start_char": 3665, "end_char": 3676, "source": "regex", "metadata": {"statute": null}}, {"text": "Karnataka Municipalities Act, 1964", "label": "STATUTE", "start_char": 3684, "end_char": 3718, "source": "regex", "metadata": {}}, {"text": "Hubli Railyard", "label": "GPE", "start_char": 4045, "end_char": 4059, "source": "ner", "metadata": {"in_sentence": "The facts of the case lie in a short compass and may be stated as follows:- Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking."}}, {"text": "Mysore Minerals Limited", "label": "ORG", "start_char": 4067, "end_char": 4090, "source": "ner", "metadata": {"in_sentence": "The facts of the case lie in a short compass and may be stated as follows:- Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking."}}, {"text": "Belekeri", "label": "GPE", "start_char": 4222, "end_char": 4230, "source": "ner", "metadata": {"in_sentence": "Having taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited."}}, {"text": "West End Minerals and Exports Private Limited", "label": "ORG", "start_char": 4296, "end_char": 4341, "source": "ner", "metadata": {"in_sentence": "Having taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited."}}, {"text": "January 25, 1975", "label": "DATE", "start_char": 4957, "end_char": 4973, "source": "ner", "metadata": {"in_sentence": "The appellant, on the basis of a resolution passed by it on January 25, 1975, and approved by the State Government levies the aforesaid fee of Re."}}, {"text": "section 124", "label": "PROVISION", "start_char": 5064, "end_char": 5075, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalghatgi", "label": "GPE", "start_char": 5204, "end_char": 5213, "source": "ner", "metadata": {"in_sentence": "The trucks of the respondent using the State highway within the municipal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips."}}, {"text": "Dharwar", "label": "GPE", "start_char": 5224, "end_char": 5231, "source": "ner", "metadata": {"in_sentence": "The trucks of the respondent using the State highway within the municipal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips."}}, {"text": "High Court of Karnataka", "label": "COURT", "start_char": 5436, "end_char": 5459, "source": "ner", "metadata": {"in_sentence": "6945 of 1975 in the High Court of Karnataka challenging the levy of the fee and seek· ing the issuance of a writ of mandamus restraining the appellant from realising the said fee."}}, {"text": "section 124(1)", "label": "PROVISION", "start_char": 5780, "end_char": 5794, "source": "regex", "metadata": {"statute": null}}, {"text": "September 21, 1976", "label": "DATE", "start_char": 6236, "end_char": 6254, "source": "ner", "metadata": {"in_sentence": "udgment and order dated September 21, 1976."}}, {"text": "section 124", "label": "PROVISION", "start_char": 6638, "end_char": 6649, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 124", "label": "PROVISION", "start_char": 6689, "end_char": 6700, "source": "regex", "metadata": {"statute": null}}, {"text": "section 124", "label": "PROVISION", "start_char": 8036, "end_char": 8047, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 9477, "end_char": 9490, "source": "regex", "metadata": {"statute": null}}, {"text": "Berar Municipalities Act, 1922", "label": "STATUTE", "start_char": 9511, "end_char": 9541, "source": "regex", "metadata": {}}, {"text": "Nagpur", "label": "GPE", "start_char": 11355, "end_char": 11361, "source": "ner", "metadata": {"in_sentence": "Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods \"imported into or exported from\" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur ..... By giving to the words \"imported into or exported from\" their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended."}}, {"text": "India", "label": "GPE", "start_char": 11568, "end_char": 11573, "source": "ner", "metadata": {"in_sentence": "Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods \"imported into or exported from\" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur ..... By giving to the words \"imported into or exported from\" their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended."}}, {"text": "Hubli", "label": "GPE", "start_char": 12516, "end_char": 12521, "source": "ner", "metadata": {"in_sentence": "In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor exported from any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination."}}, {"text": "section 33", "label": "PROVISION", "start_char": 13681, "end_char": 13691, "source": "regex", "metadata": {"statute": null}}, {"text": "section 124", "label": "PROVISION", "start_char": 14610, "end_char": 14621, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_666_670_EN", "year": 1977, "text": "MANGAL ORAM & ORS.\n\nSTATE OF ORISSA & ANR.\n\nJanuary 20, 1977\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.)\n\nLa_nd acquisition-Land acquired \"for development of , industries namely est11b/ishment of a steel plant and allied and ancillary industries\"-Establishing Rp!'rkela Steel Plant and a civil township around it, whether outside the definl/lon of word.s \"development of industries\" in ss. 2(c) and 3(1)-0rissa Development of lndustrie.J, Irrigation, Agriculture, Capital construction and resell/ement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of\n\n1948) read with Notification dated 20-2-54.\n\nSection 2(c) of the Orissa Development of Industries, Irrigation, Agiiculture; . pita! construction and Resettlement of Displaced persons\" (Land Acqms1tlon) Act, 1948 (Act XVIII of 1948), defines development of industries to mean and include the construction of Hiralmnd Dam and other dams and reservoirs, Hydro Electric Projects and such other schemes or property as the State Government may by a notification specify in this behalf. By a notification dated 20th Febl'l!ary, 1954 it was stated that \"the project for the establishment of a steel plant and allied and ancillary industry in the block of villages round about Rourkela 'hall be included within the meanin~ of the expression \"development of industries\" as defined in cl. ( c) of e. 2 of the Act.\n\nBy notification dated 22nd February, 1954 and 9th February, 1955 82 sq. miles of land was acquired for the \"development of industries, namely esta blishment of steel plant and allied and ancillary industries\". The above land vested absolutely in the State Government free from all encumbrances on the dates of the above notifications.\n\nThe writ petitions filed by some ownern of some of the acquired lands challenging the validity of the acquisition were dismissed in limine.\n\nIn appeal to this Court, the appellants contended (a) the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant as it cannot be said to be for the purpose of the development of industry; (b) the acquired land could ouly be used for the steel pl1mt and ancillary industries and not for a civil township; (c) the trans\n\nfer of 3.21 acres of land by the Railway authorities long after 14 years of the acquisition to the Notified Area Committee for construction of taxi-stand, busroad etc. in and around the Railway Station is bad.\n\nDismissing the appeals to this Court,\n\nHELD : ( 1) In the face of the notification dated 20th February, 1954 and s. 2(c) of the Orissa Development ?f Industry, Irrigation, Agiicutl!r.e, Capital Construction and Resettlement of D!Splaced Persons (Land Acqu1S1tlon) Act 1948 the establishment of steel plant and ancillary industries at Rourkela answ'ers to the definition of development of industries as given in the Act.\n\n[668 G-HJ\n\nClause ( c) of Section 2 confers wide powers on the State Government to notify any sche.me or projec~ as it .ma}'. consider appropriate for the devel_opment of industnes and there IS nothmg m that clause that the scheme or pro1ect can be the subject matter of a notification must be similar to Hirakund Dam or other darns or reservoirs or hydro electric project3. [669 A-Bl\n\n(2) The contention tha~ the acquired land uld ouly be. use~ for th~ steel plant and ancillary industr.1es and no~ for the CIVll twnsh1p ts deo1d of force.\n\nA township is a necessary adiunct aJ!d concomitant of a big steel plant. The establishment of a steel plant necessarily postulates the constmction of residential quarters for the workmen, shopping areas, schools, hospitals, A post-offices etc. The fact therefore that part of the land which was acquired has been used for civil township would not affect the validity of the acquisition of the land. r 669 C-Dl\n\n(3) There is no principle of law by which a valid, compulsory acquisition stands void because long later the requiring authority diverts it to 8. pubHo purpose other than the one stated in the declaration. In the instant CllSe, the transfer of 3.21 acres of the land by the Railways is to the Notified Area Com- B mittee who is the appropriate body to construct and maintain the link roads, bus and taxi stands and shop surrounding the Railway Station. The land is not being used for a purpose extraneous from that for which the land was initially acquired. [669 G-H, 670 A-Bl\n\nGulam Mu.rtafa & Ors. v. State of Maharashtra & Ors. [1976] 1 SCR 875 applied; '\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1237 and C\n\n~ 1238/72.\n\nFrom the Judgment and Order dated 8-11-71 of the Orissa High Ceurt in O.J.C. Nos. 339 and 385 of 1968.\n\nAND\n\nCivil Appeal No. 1730 of 1973.\n\nAppeal by Special Leave from the Judgment and Order dated the 26th February, 1973 of the Orissa High Court in O.J.C. No. 130 of 1973.\n\nGobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals.\n\nD. P. Singh and G. S. Chatterjee for Respondent No. 1 in CAs. 1237-38/72.\n\nSantosh Chatterjee and G. S. Chatterjee for Respondent No. 2 in C.As. 1237-38/72.\n\nB. Parthasarthi for Respondents 1, 3, and 4 in CA 1730/73.\n\nL. N. Sinha, Sol. Gen. of India and Vinoo Bhagat for Respondent 7 in CA 1730/73.\n\nNemo for Respondents 2, 5, 6 in C.A. 1730/73.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J. This judgment would dispose of three civil appeals Nos. 1237 and 1238 of 1972 and 1730 of 1973 against the judgment of Orissa High Court. The first two appeals have been filed on certificate, while the third appeal has been filed by special leave.\n\nWe may first deal with civil appeals 1237 and 1238.\n\nOn February 22, 1954 a notification was issued under sub-section (1) of section 3 of the Orissa Development of Industries, Irrigation, Agriculture, I Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nreferred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the \"development of industries, namely, establishment of a steel plant and allied and ancillary industries\".\n\nThe steel plant mentioned in the notification subsequently came to be known as the Rourkela steel plant.\n\nAnother notification wa.<i issued on Febmary 9, 1955 for the acquisition of further four square miles of land for the above purpose. It may be mentioned that according to section 5 (1) of the Act, when a notice of acquisition is served or is published under section 4, the land shall vest absolutely in the State Government free from all encumbrances on the date the notice is served or published in the gazette.\n\nThe appellants, who were owners of some of the acquired lands, filed writ petitions before the High Court challenging the validity of the acquisition.\n\nThe High Court dismissed both the petitions.\n\nIn appeal before us, Mr. Gobind Das on behalf of the appellants has contended that the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant.\n\nOur attention is invited in this connection to sub-section\n\n(1) of section 3 of the Act which provides inter alia that whenever it appears to the State Government that it is necessary or expedient to acquire speedily any land for the purpose of the development of industry, a notification to that effect shall be published in the gazette stating the area and the boundaries of the land proposed to be acquired.\n\nThe argument of Mr. Gobind Das is that the acquisition of the land for the establishment of a steel plant cannot be said to bG for the purpose of the development of the industry.\n\nIt is not denied by the learned counsel that a steel plant constitutes an industrial undertaking and that the object of establishing a steel plant is not different from the purpose of the development of the industry as ordinarily understood. It also cannot be disputed that Rourkela steel plant constitutes a big milestone in the industrial development of the country. The contention of Mr. Gobind Das, however, is that the words \"development of industries\" have a limited meaning as defined in the Act and the establishment of a steel plant cannot be considered to be for development of industries.\n\nThe definition of \"development of industries\" has been given in section 2(c) of the Act.\n\nAccording to the definition, development of industries means and includes the construction of the Hirakud Dam and other dams and reservoirs, Hydr0-Electric Projects and such other schemes or projects as the State Government may, by notification from time to time, specify in this behalf.\n\nWe have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954. Two days before that notification, on February 20, 1954 the Governor of Orissa issued a notification in pursuance of clause ( c) of section 2 of the Act In that notification, it was stated that the proiect for the establishment of a steel µlant and allied and ancillary industries in the block of villages round about Rourkela, shall be included within the meaning of the expression \"development of industries\", as defined in clause (c) of section 2 of the Act.\n\nIn the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of \"deve- 1 Iopment of industries'', as given in the Act.\n\nWe are unable to subsribe to the submission of Mr. Gobind Das that the scheme5 and pro- A jects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro- Electric projects. Clause ( c) of section 2 confers wide powers on the State Government to ntjfy any scheme or project as it may sidr appropriate for the development of industries and we find nothing m that clause that the scheme or project which can be the subject matter of a notification must be one simifar to Hirakud Dam or other dams B or reservoirs or hydro-electric projects.\n\nIt is then argued by Mr. Gobind Das that part of the lands which were acquired for the purpose of steel plant and ancillary industries are being used as a civil township.\n\nIt is contended that the acquired land could only be used for the steel plant and ancillary industries and not for a civil township.\n\nThis contention is equally devoid of force.\n\nThe establishment of a steel plant n.ecessarily postulates the construction of residential quarters for the workmen to be employed in the plant.\n\nIn addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play-grounds, for hospitals and for residential qua1iers of persons opening their shops catering to the needs of the employees of the steel plant.\n\nLands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as also for cremation and burial of the dead.\n\nLand would also be needed for a variety of other purposes and civic amenities.\n\nA township is a necessary adjunct and concomitant of a big steel plant. The fact, therefore, that part of the land which was acquired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.\n\nIn civil appeal 1237 of 1972, Mr. Gobind Das has also advanced an argument that possession of the land was not taken from the appellant.\n\nWe, however, find that the judgment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued.\n\nIn the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal before u~.\n\nCivil appeal 1730 of 1973 arises out of writ petition to challenge the validity of a notification dated March 19, 1958 under section 4 of the Land Acquisition Act for the acquisition of 31.06 acres of land for expansion of rail facilities to serve the steel plant at Rourkela.\n\nA writ petition to challenge this notification was filed on February 3, 1973. The contention which was advanced before the High Court and has been repeated before us with a view to challenge the validity of the acquisition of this land is that fourteen years after the acquisition of the land, the railway authorities for whom the land was acquired have transferred 3.21 acres of land to the Notified Area Committee, Rourkela.\n\nThe above submission, in our opinion, is without merit.\n\nAccording to the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the\n\nSUPREM!. COURT REPORTS\n\n[1977] 2 S.C.R.\n\nlink road, bus and taxi stands and shops surrounding the railway station. The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired.\n\nApart from that, we find that this Court has recently held in the case of Gulam Mustafa &: Ors.\n\nv. State of Maharashtra & Ors.(') that there is no principle of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.\n\nAll the three appeals consequently fail and are dismissed but in the circumstances without costs.\n\nS.R.\n\nAppeals dismissed.\n\n(1) [1976] I S.C.R. 875.", "total_entities": 52, "entities": [{"text": "MANGAL ORAM & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "MANGAL ORAM & ORS", "offset_not_found": false}}, {"text": "STATE OF ORISSA & ANR", "label": "RESPONDENT", "start_char": 20, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA & ANR", "offset_not_found": false}}, {"text": "January 20, 1977", "label": "DATE", "start_char": 44, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "January 20, 1977\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.)"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 63, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 77, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 96, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "ss. 2(c) and 3(1)", "label": "PROVISION", "start_char": 397, "end_char": 414, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Act XVIII of", "label": "STATUTE", "start_char": 564, "end_char": 583, "source": "regex", "metadata": {}}, {"text": "Section 2(c)", "label": "PROVISION", "start_char": 630, "end_char": 642, "source": "regex", "metadata": {"linked_statute_text": "Orissa Act XVIII of\n\n1948", "statute": "Orissa Act XVIII of\n\n1948"}}, {"text": "20th Febl'l!ary, 1954", "label": "DATE", "start_char": 1089, "end_char": 1110, "source": "ner", "metadata": {"in_sentence": "By a notification dated 20th Febl'l!ary, 1954 it was stated that \"the project for the establishment of a steel plant and allied and ancillary industry in the block of villages round about Rourkela 'hall be included within the meanin~ of the expression \"development of industries\" as defined in cl. ("}}, {"text": "Rourkela", "label": "GPE", "start_char": 1253, "end_char": 1261, "source": "ner", "metadata": {"in_sentence": "By a notification dated 20th Febl'l!ary, 1954 it was stated that \"the project for the establishment of a steel plant and allied and ancillary industry in the block of villages round about Rourkela 'hall be included within the meanin~ of the expression \"development of industries\" as defined in cl. ("}}, {"text": "22nd February, 1954", "label": "DATE", "start_char": 1411, "end_char": 1430, "source": "ner", "metadata": {"in_sentence": "By notification dated 22nd February, 1954 and 9th February, 1955 82 sq."}}, {"text": "9th February, 1955", "label": "DATE", "start_char": 1435, "end_char": 1453, "source": "ner", "metadata": {"in_sentence": "By notification dated 22nd February, 1954 and 9th February, 1955 82 sq."}}, {"text": "20th February, 1954", "label": "DATE", "start_char": 2550, "end_char": 2569, "source": "ner", "metadata": {"in_sentence": "Dismissing the appeals to this Court,\n\nHELD : ( 1) In the face of the notification dated 20th February, 1954 and s. 2(c) of the Orissa Development ?"}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 2574, "end_char": 2581, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 2908, "end_char": 2917, "source": "regex", "metadata": {"statute": null}}, {"text": "[1976] 1 SCR 875", "label": "CASE_CITATION", "start_char": 4466, "end_char": 4482, "source": "regex", "metadata": {}}, {"text": "Gobirul Das", "label": "PETITIONER", "start_char": 4845, "end_char": 4856, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "S. Bhandare", "label": "LAWYER", "start_char": 4865, "end_char": 4876, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "M. S.\n\nNarasimhan", "label": "LAWYER", "start_char": 4878, "end_char": 4895, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "A. K.\n\nMathur", "label": "LAWYER", "start_char": 4898, "end_char": 4911, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "A. K. Sharma", "label": "LAWYER", "start_char": 4913, "end_char": 4925, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "Malini Paduval", "label": "LAWYER", "start_char": 4937, "end_char": 4951, "source": "ner", "metadata": {"in_sentence": "Gobirul Das, (Mrs.) S. Bhandare, M. S.\n\nNarasimhan,\n\nA. K.\n\nMathur, A. K. Sharma and (Miss) Malini Paduval for the Appellants E in all the appeals."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 4994, "end_char": 5005, "source": "ner", "metadata": {"in_sentence": "D. P. Singh and G. S. Chatterjee for Respondent No."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 5010, "end_char": 5026, "source": "ner", "metadata": {"in_sentence": "D. P. Singh and G. S. Chatterjee for Respondent No."}}, {"text": "Santosh Chatterjee", "label": "LAWYER", "start_char": 5069, "end_char": 5087, "source": "ner", "metadata": {"in_sentence": "Santosh Chatterjee and G. S. Chatterjee for Respondent No."}}, {"text": "B. Parthasarthi", "label": "LAWYER", "start_char": 5152, "end_char": 5167, "source": "ner", "metadata": {"in_sentence": "B. Parthasarthi for Respondents 1, 3, and 4 in CA 1730/73."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 5212, "end_char": 5223, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol."}}, {"text": "Vinoo Bhagat", "label": "LAWYER", "start_char": 5248, "end_char": 5260, "source": "ner", "metadata": {"in_sentence": "Gen. of India and Vinoo Bhagat for Respondent 7 in CA 1730/73."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 5385, "end_char": 5391, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J. This judgment would dispose of three civil appeals Nos."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 5515, "end_char": 5532, "source": "ner", "metadata": {"in_sentence": "1237 and 1238 of 1972 and 1730 of 1973 against the judgment of Orissa High Court."}}, {"text": "22, 1954", "label": "DATE", "start_char": 5710, "end_char": 5718, "source": "ner", "metadata": {"in_sentence": "On February 22, 1954 a notification was issued under sub-section (1) of section 3 of the Orissa Development of Industries, Irrigation, Agriculture, I Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nreferred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the \"development of industries, namely, establishment of a steel plant and allied and ancillary industries\"."}}, {"text": "section 3", "label": "PROVISION", "start_char": 5770, "end_char": 5779, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Act XVIII of 1948", "label": "STATUTE", "start_char": 5937, "end_char": 5961, "source": "regex", "metadata": {}}, {"text": "SUPREME COURT REPORTS\n\n[1977) 2 S.C.R.", "label": "COURT", "start_char": 5977, "end_char": 6015, "source": "ner", "metadata": {"in_sentence": "On February 22, 1954 a notification was issued under sub-section (1) of section 3 of the Orissa Development of Industries, Irrigation, Agriculture, I Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nreferred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the \"development of industries, namely, establishment of a steel plant and allied and ancillary industries\"."}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 6048, "end_char": 6068, "source": "ner", "metadata": {"in_sentence": "On February 22, 1954 a notification was issued under sub-section (1) of section 3 of the Orissa Development of Industries, Irrigation, Agriculture, I Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nreferred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the \"development of industries, namely, establishment of a steel plant and allied and ancillary industries\"."}}, {"text": "Febmary 9, 1955", "label": "DATE", "start_char": 6373, "end_char": 6388, "source": "ner", "metadata": {"in_sentence": "Another notification wa.<i issued on Febmary 9, 1955 for the acquisition of further four square miles of land for the above purpose."}}, {"text": "section 5", "label": "PROVISION", "start_char": 6507, "end_char": 6516, "source": "regex", "metadata": {"linked_statute_text": "Orissa Act XVIII of 1948", "statute": "Orissa Act XVIII of 1948"}}, {"text": "section 4", "label": "PROVISION", "start_char": 6594, "end_char": 6603, "source": "regex", "metadata": {"linked_statute_text": "Orissa Act XVIII of 1948", "statute": "Orissa Act XVIII of 1948"}}, {"text": "section 3", "label": "PROVISION", "start_char": 7224, "end_char": 7233, "source": "regex", "metadata": {"linked_statute_text": "Gobind Das on behalf of the appellants has contended that the State Government was not competent to acquire the land in question under the Act", "statute": "Gobind Das on behalf of the appellants has contended that the State Government was not competent to acquire the land in question under the Act"}}, {"text": "Rourkela steel plant", "label": "ORG", "start_char": 8023, "end_char": 8043, "source": "ner", "metadata": {"in_sentence": "It also cannot be disputed that Rourkela steel plant constitutes a big milestone in the industrial development of the country."}}, {"text": "section 2(c)", "label": "PROVISION", "start_char": 8414, "end_char": 8426, "source": "regex", "metadata": {"statute": null}}, {"text": "February 22, 1954", "label": "DATE", "start_char": 8831, "end_char": 8848, "source": "ner", "metadata": {"in_sentence": "We have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954."}}, {"text": "February 20, 1954", "label": "DATE", "start_char": 8888, "end_char": 8905, "source": "ner", "metadata": {"in_sentence": "Two days before that notification, on February 20, 1954 the Governor of Orissa issued a notification in pursuance of clause ( c) of section 2 of the Act In that notification, it was stated that the proiect for the establishment of a steel µlant and allied and ancillary industries in the block of villages round about Rourkela, shall be included within the meaning of the expression \"development of industries\", as defined in clause (c) of section 2 of the Act."}}, {"text": "Orissa", "label": "GPE", "start_char": 8922, "end_char": 8928, "source": "ner", "metadata": {"in_sentence": "Two days before that notification, on February 20, 1954 the Governor of Orissa issued a notification in pursuance of clause ( c) of section 2 of the Act In that notification, it was stated that the proiect for the establishment of a steel µlant and allied and ancillary industries in the block of villages round about Rourkela, shall be included within the meaning of the expression \"development of industries\", as defined in clause (c) of section 2 of the Act."}}, {"text": "section 2", "label": "PROVISION", "start_char": 8982, "end_char": 8991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 9290, "end_char": 9299, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(c)", "label": "PROVISION", "start_char": 9704, "end_char": 9716, "source": "regex", "metadata": {"statute": null}}, {"text": "Hirakud Dam", "label": "RESPONDENT", "start_char": 9748, "end_char": 9759, "source": "ner", "metadata": {"in_sentence": "We are unable to subsribe to the submission of Mr. Gobind Das that the scheme5 and pro- A jects which could be the subject-matter of a notification under section 2(c) must be such as are similar to Hirakud Dam or other Hydro- Electric projects."}}, {"text": "section 2", "label": "PROVISION", "start_char": 9810, "end_char": 9819, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 11971, "end_char": 11980, "source": "regex", "metadata": {"statute": null}}, {"text": "February 3, 1973", "label": "DATE", "start_char": 12184, "end_char": 12200, "source": "ner", "metadata": {"in_sentence": "A writ petition to challenge this notification was filed on February 3, 1973."}}]}
{"document_id": "1977_2_671_677_EN", "year": 1977, "text": "SITA RAM BHAU PATIL\n\nRAMCHANDRA NAGO PATIL (DEAD) BY L. Rs. & ANR.\n\nJanuary 20, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM, JI.]\n\n) Bombay Tenancy &: Agricultural Lands Act 1948-Sec. 16-Power of\n\n~· ,~\n\nRevenue Tribunal to interfere with findings of fact.\n\nllldian Evidence A.ct-Sec. 17-Admissibi/ity and relevance af vrevious ad111is.io11-E11tries in record of right-Presumptive value.\n\nThe appellant was owner of the suit land. The appellant's wife sold this land to respondent No 1. Thereafter, 1he appellant made an application under s. 70(b) of the Bombay Tenancy & Agricultural Lands Act, 1948, for a declaration that ht< was a tenant of two of the 4 plots of the land. The dispute went up to the Maharashtra Revenue Tribunal who rejected the claim of the appellant to tenancy. Thereafter, the respondent filed an application under section 70(b) of the said Act praying for a declaration that the appellant was not a tenant in respect of the remaining two survey numbers also.\n\nThe respondent alleged that he never leased the land to the (lppellant and that he came to know of the entry of the record of rights for the year 1955-56 on the strength of mutation alleged to have been made on 30.1.1966. The respondent was cross-examined and it was suggested to him that he had made an admission in previous deposition although the said. deposition was not shown to the\n\nrepondent. After the cross-examination of the respondent was over, a certified copy of the said deposition was placed on record.\n\nThereafter the appellant was examined and he relied on the extract of the record of rights. The Mamlatdar rejected the claim of the appellant to be a tenant which was confirmed by the Deputy Collector. The Maharashtra Revenue Tribunal held in exercise of its revisional powers that the appellant was proved to be a tenant of the land and set aside the concurrent. findings of the two authorities below. In a writ petition filed by the respondent under Art. 227 of the Constitution the High Courts set aside the order of ihe Revenue Tribunal.\n\nDismissing the appeal by Special Leave,\n\nHELD : 1. Admission on which reliance has been placed by the appellant suffers from 3 infirmities :\n\n(i) Earlier deposition related to two different survey numbers.\n\nWhatever was stated about another survey number is irrelevant and inadmissible.\n\nSince under s. 17 of the Indian Evidence Act an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact.\n\n(ii) In fact there was no admission in the earlier proceedings; and\n\n. (iii) The deposition was not brought to the notice of respondent when he was being cross-examined.\n\nPrivy Council has laid down in the case of Bal Gangadhar Tilak that before any person is to be faced with any statemeat he should be given an opportunity to see that statement and to answer the atatement. [673 E, 674 A-C, 675 A-El\n\nBal Gancadhar Tilak v. Sltri11ivu P\"niit 42 Indian Appeals 135 at pa2e 147, applied.\n\n2. There is a presumption abput the correctness of the record of rights.\n\nHowever, there is no abstract principle that whatever will appear in the Record of Rights will be presumed to be correct. In the present case it is ihown by evidence that the entries are not correct. [676 B-DJ\n\n3. Under section 76 of the Act power of Tribunal to interfere is limited.\n\nThere was no error of law on the face of the record. If the authority entrusted with. adjudication goes into the question and assesse~ the same, the decision may be nght or wrong but that will not go to show that there is any error of law on the face of record. [676 E, 677 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1997 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated the 13th February, 1968 of the Bombay High Court in Special Civil Application No. 643 of 1967.\n\nB. N. Lokur and A. G. Ratnaparkhi for the Appellant.\n\nS. V. Gupte, R. B. Datar and Sanjeev Kumar for Respondents.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J. This appeal by special leave is from the judgment dated 13 February 1968 of the High Court of Bombay.\n\nThe appellant was owner of land covered by Survey No. 201/2, 194/13, 200/29 and 194/15. The appellant's wife sold this land to respondent No. 1 on 14 June 1946.\n\nOn 12 April 1962 the appellant made an application under section 70(b) of the Bombay Tenancy & Agricultural Lands Act (hereinafter ref('._rred to as the Bombay Act) for a declaration that he was a tenant of two of the four plots of land namely, Survey Nos. 194/15 and 200/29. This dispute between the appellant and the respondent in regard to alleged tenancy claim for these two survey numbers went up to the Maharashtra Revenue Tribunal.\n\nThe Tribunal by order dated 19 March, 1954 rejected the claim of the appellant to tenancy in respect of the land covered by Survey Nos. 200/29 and 194/15.\n\nThereafter the respondent filed an application on 24 January 1963 under section 70(b) of the Bombay Act for a declaration that the appellant was not tenant of the remaining two Survey Nos. 201/2 and 194/13. The respondent alleged that he never leased the land to the appellant. The respondent further said that he came to know about entry in the record of rights for the years 1955-56 on the strength of mutation alleged to have been made on 30 January 1956 and sanctioned on 13 November 1956. This application of the respondent was resisted by the appellant on the ground that he was tenant of these two survey Nos. 201/2 and 194/13.\n\nThe matter was heard by the Mamlatdar. By an order dated 31 July 1963 the Mamlatdar rejected the claim of the appellant to be a tenant.\n\nThereafter the matter was taken up to the District Deputy Collector. The Deputy Collector by his order dated 27 June 1966 upheld the Mamlatdar's order. Before the Mamlatdar and the Deputy Collector the respondent examined himself.\n\nHe was cross examined and his attention was drawn in cross examination towards an alleged admission about the appellant being his tenant in the deposition recorded by the Tenancy Aval Karkun in an earlier case on 10 September\n\n1962. The respondent denied that he made any admission.\n\nThe previous deposition was not shown to him on that day.\n\nF--\n\nOn 9 July 1963 a certified copy of the deposition in the earlier proceedings was placed on record.\n\nOn that very day the appellant examined himself, saying that he was a tenant of the land and he pad\n\nno other evidence to show in support of his case except the certified copy of the statement which was produced on that day.\n\nThe appellant also relied on the extracts of the record of rights B showing that the respondent was shown as 'Kabzedar' of Survey Nos.\n\n201/2 and the appellant was shown as tenant of the same. .In regard to Survey No. 194/13 it also appeared from the record of rights that the respondent was shown as 'kabzedar' and the appellant as a tenant.\n\nOn this evidence the Mamlatdar held that the appellant was not cultivating the lands as a tenant of the respondent and he declared that c the appellant was not a tenant.\n\nThe Deputy Collector affirmed the order of the Mamlatdar.\n\nThe Maharashtra Revenue Tribunal however by its order dated 19 January 1967 hel<l that the appellant was \"proved to be a tenant of the land. The respondent thereupon took the matter to the High Court under Article 227.\n\nThe High Court set aside the order of the Reve- D nue Tribunal. The appellant obtained special leave from this Court.\n\nOn behalf of the appellant three contentions were advanced. First, that the respondent was bound by his admission that the appellant is a tenant.\n\nSecond, there is a presumption of the correctness of the record of rights under section 135-J of the Bombay Land Revenue Code 1879.\n\nThird, the Maharashtra Revenue Tribunal was justified E in setting aside the findings of fact of the Mamlatdar a!1d the Deputy • Collector because of error of law.\n\nThe admission on which reliance has been placed by counsel for the appellant suffers from three infirmities.\n\nIn the deposition of the respondent in Tenancy Case No. 6/61-62 dated 10 September 1962, the respondent gave evidence in regard to dispute between the respon- F dent and the appellant in relation to Survey Nos. 200/29 and 194/15 respondent said that he never kept the appellant as a tenant on the '-'. land.\n\nIn cross examination it was suggested to the respondent that the land bearing Survey No. 201/2 belonged to the respondent and that the appellant is a tenant in the land.\n\nThe respondent said as follows : G \"The land Survey No. 201/2 situate in Balkum belongs to me in Balkum.\n\nThe applicant is a tenant in the said land.\n\nI do not take the rent in respect of the said land. . . . . . . . I have prior to 15-20\n\nyears purchased this land from Sitaram Bhau.\n\nEven the land bearing S. No. 201/2 was purchased right from him.\n\nI have never cultivated the land bearings S. No. 201/2.\n\nIt was barren at that time.\n\nWhen this land was to be acquired J learnt whether Sitaram Bhau was cul- H !hating this land .... or whether his name has been entered as a tenant against this land(?) I cannot say as to whose land is around the land bearing S. No. 201/2 or other Land.\"\n\nSUPREMECOURT REPORTS\n\n[1977] 2 S.C.R.\n\nA This evidence read in its entirety is not an admission at all.\n\nperson who says that. 'I have taken no rent' obviously says that thera is BO relationship of landlord or tenant.\n\nThe first infirmity in regard to this admission is that whatever was said by the respondent in regard to Survey No. 201/2 is irrelevant and inadmissible in the deposition of the respondent in that case.\n\nSection 17 of the Indian Evidence Act states that 'An admission is a statement, oral or documentary, which 1mggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumsl!ances, hereinafter mentioned'. In regard to dispute between the appellant and the respondent arising out of Survey No. 194/15 and 200/29, Survey Nos. 201/2 and 194/13 were neither issues in fact nor relevant fact.\n\nThe second infirmity against this admission being used against the respondent is that as long as the respondent was under cross examination, it was not brought to his notice. It is said by counsel for the appellant relying on the decision of this Court in Bharat Singh and Anr. v. Bhagirathi reported in 1966(1) S.C.R. 606, that this admission was proved by the appellant and this admission on the ruling of the decision of this Court (Supra) is substantive evidence and is therefore admissible against the respondent.\n\nThe decision of this Court in Bharat Singh's case (Supra) is that :\n\n\"Admissions have to be clear if they are to be used against the person making them.\n\nAdmissions are substantive evidence by themselves, in view of ss. 17 & 22 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.\"\n\nAdmission proved are said in the decision to be\n\n\"admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether the party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions\".\n\nCounsel for the appellant submitted that the respondent even though not confronted with the admissions would be bound by his admissions and the appellant would be entitled to rely on the admissions as admissible.\n\nThere is the observation in the very next sentence in the aforesaid decision of this Court that \"the purpose of contradicting the witness under section 145 of the Evidence Act is very much different from the purpose of proving the admission\".\n\nIt, therefore, follows that admission is relevant and it has to be proved before it becomes evidence.\n\nIf admission is proved and if it is thereafter to be use9 against the party who has made it the question comes within the provisi@ns of Section 145 of .the Evidence Act.\n\nThe provisions in the Indian Evidence Act that 'admission is not conclusive proof' are to be considered in regard to two features of evidenc.e.\n\nFirst, what weight is to be attached to an admission ? In order to l\\ttach weight it has to\n\nbe found out whether the admission is clear, unambiguous and is a A relevant piece of evidence.\n\nSecond, even if the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who has made it, \"it is sound that if a Witness is under cross examination on oath, he should be given an opportunity, if the document are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute.\n\nThis is a general salutary and intelligible rule\" (see Bal Gangadhar Tilak v. Shrinivas B Pandit-42 Indian Appeals 135 at page 147). The Judicial Committee in that case said, \"it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed\".\n\nThe general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same.\n\nThe specific statutory provision is contained in Section 145 of the Indian Evidence C Act that \"A witness may be cross-examined as to previous statements made by him in writing c: reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him\". Therefore, a mere proof of admission, after the person whose admission it D is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him.\n\nThe third infirmity with regard to this admission is whether this is a clear and unequivocal admission.\n\nThe High Court said that \"a certified copy of the deposition was placed on record on 9 July 1973, on which day against it does not appear that the contents of the depo- E sition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness.\" The contents of the alleged admission to which reference has been made are not unambiguous and cannot be accepted as an admission.\n\nThe contents are that he was not receiving any rent and the land was\n\nfllow. Therefore, the High Court was right in rejecting the contentions advanced by the appellants that there w11s any admission and in F setting aside the decision of the Revenue Tribunal.\n\nThe second contention on behalf of the appellant is that the certain record of rights relied on by the appellant would establish that the appellant was a tenant.\n\nThe High Court rightly accepted the contention of the respondent that after a careful consideration of the evidence on record the fact finding courts, i.e. the Mamlatdar and the Special Deputy Collector recorded a finding that the appellant had not culti- G vated the land in dispute as the tenant of the respondent.\n\nTherefore the Revenue Tribunal had no jurisdiction to interfere and set aside the finding of fact. ·\n\nAs to the record of rights it appears that the High Court referred to two important features.\n\nIt is true that the record of rights relate to Survey Nos. 201/2 and 194/13 and there is mention of the appel- H lant as tenant.\n\nThere is also a reference to the mutation proceedings.\n\nThe name of the respondent is shown as Kabjedar.\n\nTwo of the 9-l 12SCJ/77\n\nimportant heads in the record are 'Mode' and 'Crops & fallows'.\n\nThe Mode is shown as \"I\" and under Crops and Fallows en, ry 'Paddy' is shown.\n\nThe High Court referred to this feature of the record of rights Mode \"I\" means that the respondent cultivated as owner of the land that was never even case of the appellant.\n\nThe High Court rightly said that the irresistible conclusion therefore is that the extracts from the record of rights contain entries which do not have any relation to true facts. If that is the position with regard to these extracts, these cannot be relied on for inference that actually the land was cultivated and paddy crops were grown on the said land.\n\nWith regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness.\n\nThere is no abstract principle that whatever will appear in the record of rights will C be presumed to be correct when it is shown by evidence that the entries are not correct.\n\nApart from the intrinsic evidence in the record of rights that they refer to facts which are untrue it ao appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30 January 1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons.\n\nFirst, the oral evidence in this case nullified the entries in D the record of rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings. Therefore the respondent is right in contending that no presumption can validly . arise from the record of rights.\n\nThe third contention on behalf of the appellant that the Tribunal was justified to interfere because of error of law is also unacceptable.\n\nTiie provisions contained in section 76 of the Bombay Act enumerate the grounds on which there can be revision by the Revenue Tribunal.\n\nOne of the grounds is that there is 'error of law'. In the present case the manner in which the Maharashtra Revenue Tribunal entertained the revision was by holding, as follows :\n\n\"There is evidence that the applicant (meaning thereby the appellant) has been in actual possession of land since 1956-57 onwards\".\n\nHowever, the authorities below have rejected the entries as well as the opponents' (meaning thereby the respondent) admission on the ground that the applicant did not support the entries by producing the rent receipts.\n\nAccording to the authorities below the burden was on the applicant to prove his case by producing evidence to corroborate the entries.\n\nThe appellate authority has also observed that the alleged admission of the opponent, made in the other case was rejected by the Revenue Tribunal.\n\nThe authorities below arrived at the conclusion that the applicant's possession was otherwise than lawful.\n\nThis concurrent finding of the authorities below is being challenged by the applicant in this revision application.\"\n\nThe Revenue Tribunal seemed to consider the approach of the Mamlatdar and the Deputy Collector to be erroneous because according to the Revenue Tribunal the burden was shifted to the respondent\n\n' \\\n\nto rebut the entry in the record of rights and that the respondent failed A to discharge that burden.\n\nWhen the entire evidence is before the Court, it is well settled that the burden of proof becomes immaterial.\n\nFurther the Revenue Tribunal fell into error of entertaining the Revision when there was no error of law on the face of the record.\n\nThe presumption which was said to arise in the record of rights was before the Deputy Collector as well as the Mamlatdar. If the autho- B rity entrusted with adjudication goesinto the question and assesses the .same, the decision may be right or wrong but that will not go to show that there is any error of law on the fact of record.\n\nAll the three contentions advanced by the appellant fail.\n\nThe appeal is for the foregoing reasons dismissed with costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "SITA RAM BHAU PATIL", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "SITA RAM BHAU PATIL", "offset_not_found": false}}, {"text": "RAMCHANDRA NAGO PATIL (DEAD) BY L. Rs. & ANR", "label": "RESPONDENT", "start_char": 21, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "RAMCHANDRA NAGO PATIL (DEAD) BY L.Rs. & ANR", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 87, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 104, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. s. KAILASAM", "label": "JUDGE", "start_char": 118, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Agricultural Lands Act 1948", "label": "STATUTE", "start_char": 160, "end_char": 187, "source": "regex", "metadata": {}}, {"text": "Sec. 16", "label": "PROVISION", "start_char": 188, "end_char": 195, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act 1948", "statute": "Agricultural Lands Act 1948"}}, {"text": "Sec. 17", "label": "PROVISION", "start_char": 289, "end_char": 296, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act 1948", "statute": "Agricultural Lands Act 1948"}}, {"text": "s. 70(b)", "label": "PROVISION", "start_char": 548, "end_char": 556, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act 1948", "statute": "Agricultural Lands Act 1948"}}, {"text": "Agricultural Lands Act, 1948", "label": "STATUTE", "start_char": 581, "end_char": 609, "source": "regex", "metadata": {}}, {"text": "section 70(b)", "label": "PROVISION", "start_char": 848, "end_char": 861, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act, 1948", "statute": "Agricultural Lands Act, 1948"}}, {"text": "30.1.1966", "label": "DATE", "start_char": 1205, "end_char": 1214, "source": "ner", "metadata": {"in_sentence": "The respondent alleged that he never leased the land to the (lppellant and that he came to know of the entry of the record of rights for the year 1955-56 on the strength of mutation alleged to have been made on 30.1.1966."}}, {"text": "Maharashtra Revenue Tribunal", "label": "COURT", "start_char": 1719, "end_char": 1747, "source": "ner", "metadata": {"in_sentence": "The Maharashtra Revenue Tribunal held in exercise of its revisional powers that the appellant was proved to be a tenant of the land and set aside the concurrent."}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 1965, "end_char": 1973, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2356, "end_char": 2361, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 2369, "end_char": 2388, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bal Gangadhar Tilak", "label": "OTHER_PERSON", "start_char": 2725, "end_char": 2744, "source": "ner", "metadata": {"in_sentence": "Privy Council has laid down in the case of Bal Gangadhar Tilak that before any person is to be faced with any statemeat he should be given an opportunity to see that statement and to answer the atatement. [", "canonical_name": "Bal Gangadhar Tilak"}}, {"text": "Bal Gancadhar Tilak", "label": "OTHER_PERSON", "start_char": 2914, "end_char": 2933, "source": "ner", "metadata": {"in_sentence": "673 E, 674 A-C, 675 A-El\n\nBal Gancadhar Tilak v. Sltri11ivu P\"niit 42 Indian Appeals 135 at pa2e 147, applied.", "canonical_name": "Bal Gangadhar Tilak"}}, {"text": "section 76", "label": "PROVISION", "start_char": 3294, "end_char": 3304, "source": "regex", "metadata": {"statute": null}}, {"text": "B. N. Lokur", "label": "LAWYER", "start_char": 3857, "end_char": 3868, "source": "ner", "metadata": {"in_sentence": "B. N. Lokur and A. G. Ratnaparkhi for the Appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3873, "end_char": 3890, "source": "ner", "metadata": {"in_sentence": "B. N. Lokur and A. G. Ratnaparkhi for the Appellant."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 3911, "end_char": 3922, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, R. B. Datar and Sanjeev Kumar for Respondents."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 3924, "end_char": 3935, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, R. B. Datar and Sanjeev Kumar for Respondents."}}, {"text": "Sanjeev Kumar", "label": "LAWYER", "start_char": 3940, "end_char": 3953, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, R. B. Datar and Sanjeev Kumar for Respondents."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4016, "end_char": 4019, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J. This appeal by special leave is from the judgment dated 13 February 1968 of the High Court of Bombay."}}, {"text": "14 June 1946", "label": "DATE", "start_char": 4276, "end_char": 4288, "source": "ner", "metadata": {"in_sentence": "1 on 14 June 1946."}}, {"text": "12 April 1962", "label": "DATE", "start_char": 4294, "end_char": 4307, "source": "ner", "metadata": {"in_sentence": "On 12 April 1962 the appellant made an application under section 70(b) of the Bombay Tenancy & Agricultural Lands Act (hereinafter ref('._rred to as the Bombay Act) for a declaration that he was a tenant of two of the four plots of land namely, Survey Nos."}}, {"text": "section 70(b)", "label": "PROVISION", "start_char": 4348, "end_char": 4361, "source": "regex", "metadata": {"statute": null}}, {"text": "Agricultural Lands Act", "label": "STATUTE", "start_char": 4386, "end_char": 4408, "source": "regex", "metadata": {}}, {"text": "19 March, 1954", "label": "DATE", "start_char": 4759, "end_char": 4773, "source": "ner", "metadata": {"in_sentence": "The Tribunal by order dated 19 March, 1954 rejected the claim of the appellant to tenancy in respect of the land covered by Survey Nos."}}, {"text": "24 January 1963", "label": "DATE", "start_char": 4937, "end_char": 4952, "source": "ner", "metadata": {"in_sentence": "Thereafter the respondent filed an application on 24 January 1963 under section 70(b) of the Bombay Act for a declaration that the appellant was not tenant of the remaining two Survey Nos."}}, {"text": "section 70(b)", "label": "PROVISION", "start_char": 4959, "end_char": 4972, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act", "statute": "Agricultural Lands Act"}}, {"text": "13 November 1956", "label": "DATE", "start_char": 5363, "end_char": 5379, "source": "ner", "metadata": {"in_sentence": "The respondent further said that he came to know about entry in the record of rights for the years 1955-56 on the strength of mutation alleged to have been made on 30 January 1956 and sanctioned on 13 November 1956."}}, {"text": "10 September\n\n1962", "label": "DATE", "start_char": 6105, "end_char": 6123, "source": "ner", "metadata": {"in_sentence": "He was cross examined and his attention was drawn in cross examination towards an alleged admission about the appellant being his tenant in the deposition recorded by the Tenancy Aval Karkun in an earlier case on 10 September\n\n1962."}}, {"text": "Article 227", "label": "PROVISION", "start_char": 7346, "end_char": 7357, "source": "regex", "metadata": {"statute": null}}, {"text": "section 135", "label": "PROVISION", "start_char": 7706, "end_char": 7717, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Land Revenue Code 1879", "label": "STATUTE", "start_char": 7727, "end_char": 7756, "source": "regex", "metadata": {}}, {"text": "Balkum", "label": "GPE", "start_char": 8587, "end_char": 8593, "source": "ner", "metadata": {"in_sentence": "201/2 situate in Balkum belongs to me in Balkum."}}, {"text": "Sitaram Bhau", "label": "OTHER_PERSON", "start_char": 8785, "end_char": 8797, "source": "ner", "metadata": {"in_sentence": "I have prior to 15-20\n\nyears purchased this land from Sitaram Bhau."}}, {"text": "Section 17", "label": "PROVISION", "start_char": 9630, "end_char": 9640, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 9648, "end_char": 9667, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bharat Singh", "label": "OTHER_PERSON", "start_char": 10631, "end_char": 10643, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in Bharat Singh's case (Supra) is that :\n\n\"Admissions have to be clear if they are to be used against the person making them."}}, {"text": "ss. 17 & 22", "label": "PROVISION", "start_char": 10817, "end_char": 10828, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 10836, "end_char": 10855, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 145", "label": "PROVISION", "start_char": 11575, "end_char": 11586, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 145", "label": "PROVISION", "start_char": 11914, "end_char": 11925, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 11971, "end_char": 11990, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 145", "label": "PROVISION", "start_char": 13192, "end_char": 13203, "source": "regex", "metadata": {"statute": null}}, {"text": "9 July 1973", "label": "DATE", "start_char": 14008, "end_char": 14019, "source": "ner", "metadata": {"in_sentence": "The High Court said that \"a certified copy of the deposition was placed on record on 9 July 1973, on which day against it does not appear that the contents of the depo- E sition were read out to the respondent or that any attempt was made to obtain leave of the Court to further cross examine the witness.\""}}, {"text": "section 76", "label": "PROVISION", "start_char": 17411, "end_char": 17421, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_678_684_EN", "year": 1977, "text": "BALKRISHNA SOMNATH\n\nSADA DEVRAM KOLI & ANOTHER\n\nJanuary 20, 1977\n\n[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]\n\nBombay Tenancy & Agricultwal Lands Act, 1948 (Bombay Act LXVII of\n\n1948) as amended by Bombay Act XIII of 1956, section 32-Scope of-Interpretation of the words \"disabled person's share in the joint family has beerr separated by metes and bounds\" occurring in proviso to s. 32 F(l) (a). ~\n\nUnder s. 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the tiller of the land had the. right to purchase the land tenanted to him. Where the landlord is a minor or a widow or a person subject to any mental or physic'.11 disability, the right to purchase such land is postponed till their disability\n\nd1sappeas and one year lapses thereafter. But this embargo on the exercise of the nght of purchase ]:>y the tenant does not operate as per proviso to s. 32F(l)(a), if the property belongs to a joint family and there is a partition therein and the land is alloJted to the person under disability.\n\nIn both the appeals, the family owned lands and other assets and there was a partition confined to agricultural land only. In one case the share fell to a widow while in the other it fell to a minor, admittedly a disabled person within the meaning of s 32F(1). Before the Tribunal and lhe High Court, the landlord claimed, ther_efore, protection under the proviso to clause (a) of section 32F(l) of the Act while the respondent contended that even if the agricultural land had been divided and other assets admittedly remained joint, the appellant was ineligible to .claim the benefit of the proviso. The High Court decided against the landlord and held : \"The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share in the entire property and is not in excess thereof'.\n\nDismissing the appal to this Court,\n\nHELD : (1) The broad idea is to vest full ownership in the tenantry. A compassionate exception is made in favour of a handicapped landlords who cannot prove their need to recover their land on approved grounds. The Legislature conditioned the proviso by insisting that the sej)aration should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly even where there is a total partition only a fair proportion of the lands is allotted to the disabled person. [682 C-D-FJ\n\n(2) What section 32F(1) insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; (b) the Mamlatdar is satisfied that the share of the disabled person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportian. [681 GJ\n\n(3) The imperative condition for the operation of the proviso is that there should be a total separation and so far as a disabled member is concerned, it must cover all the joint family properties. The usage of the expressions \"the share of such person in the joint_family\", \"the share of such person in the land\" \"the share of that person in the entire joint family property\" in the\n\nsectio~ the clear statement in the proviso that the disabled person's share in the joint family must have been separated by metes a.nd ound~ and the sta!utory exercise expected of the Mamlatdar by the proviso mvolvmg an enqmry into the share of the disabled person in the land and its value, the share of that person in the entire joint family properties, the proportion that the allot-\n\nI ,,\n\n' I,\n\ni ment of the land bears to his share in the entire joint family property with a A view to see that there is no unfair manouvre to defeat the scheme of the Act- .lead to the necssary postulate that it is not confined to the share of the land <0nly but really means his share in the entire joint family property. [683 E-H, 684 Al\n\n( 4) In the instant case there is no division of all the joint family property. <Only the landed properties have been separa~. [684-B]\n\n-Observation :\n\nThe reform of the inherited law-niaking methodology may save court time ; and reduce litigation. Our legislative process, not an unmixed blessing, works under such instant stress and ad hoc hephazardness that the whole piece of legislation when produced makes experienced draftsmen blush, as in the instant .case, the involved drafting of s. 32F has had its share in the marginal obscurity , of meaning. [682 B-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 129 of 1968,\n\n,; Appeal by Special Leave from the Judgment and Order dated the 18-8-66 of the Bombay High Court in S.C.A. No. 1299/67 and\n\nCivil Appeal No. 2007 of 1969\n\nFrom the Judgment and Order dated the 18th, 20th June 1968 <Jf the Bombay High Court in S.C.A. No. 1676 of 1964. and\n\nSpecial Leave Petition (Civil) No. 3175/75\n\nFrom the Judgment and Order dated the 31-10-74 of the Bombay.\n\nHigh Court ; n Special Civil Appln. No. 2610 of 1970.\n\nV. M. Tarkunde, V. N. Ganpule and P. C. Kapoor for the appellant in C. A. 129 of 1968.\n\nS. N. Anand for Respondent No. 1 in CA 129/68\n\nV. N. Ganpule for the Petitioner in SLP\n\nS. B. Wad and R. N. Nath for the Appellants in CA 2007 of 1969. R. B. Datar and S. C. Agarwal for Respondent No. 1 in CA 2007 I 69\n\nThe Judgment of the Court was. del(•vered by\n\nKRISHNA IYER, J.\n\nThese two appeals raise a short issue of interpretation of the proviso to s. 32F (1) (a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act).\n\nThe appellants in both the cases are the aggrieved landlords, the tenants' right of puchase under t.he Act having been upheld by the Hi•gh Court.\n\nThe correctness of this view is canvassed . before us by counsel.\n\nThe facts necessary . to appreciate the rival contentions may be stated briefly.\n\nThe parties are different but the issue is identical. and 110 a single judgment will dispose of both the appeals.\n\nIn Civil Appeal No. 2007 of 1969 the witlow of a deceased landowner, one Dattatraya, is the appellant. The deceased owned several houses, had a money-lending business and considerable agricultural lands.\n\nHe left behind him on his death in .1952 a widow'{the second, appellant) and two sons, one of whom is the first appellant. Admittedly the Act, an agrarian reform measure, was extensively amended by Bombay Act XIII of 1956 conferring great rights on tenants and, inflicting erious mayhem on landlordism. The case of the appellants is that there was a partition among the mother and the two sons of the agricultural estate whereunder the second appellant (the widow) was allotted around 80 acres of land out of which about 15 acres were held by the first respondent as a tenant. On the Tillers' Day tenants bloomed into owners by the conferment of the right of purchase.\n\nOn the basis that the first respondent had become the o..yner, a proceeding !or the determination of the purchase-price of these lands was initiated; by the Tribunal, as provi'ded under s. 32G of the Act.\n\nAlthough notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the first responden~ was set apart in a family partition to his mother, the second appellant, and that1 since she was a widow she came squarely within the protective provision of the proviso to cl. (a) of s. 32F(l) of the Act.\n\nThe first respondent, however, contested the partition and further pressed the plea that even if the agricultural lands had been divided since the house and the money-lending business and other assets admittedly remained joint, the appellant was ineligible to claim the benefit of the proviso aforesaid.\n\nWe need not trace the history of the litigation from deck to deck but may conclude the story for the present purpose by stating that the High Court took the view\n\nthat the second appellant (widow did not qualify under the said pro- . viso : \"The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all of the joint family property and unless the agricultural land allotted to him corresponds to his share in the enti•re property and is not in excess thereof.\"-This was the construction put by the Court on the proviso and challenged before us by Shri Wad in C. A. 2007 of 1969 and by Shri Tarkunde in C. A. 129 of 1968.\n\nIn Civil Appeal No. 129 of 1968 the legal scenario is similar~ The family owned1 lands and other assets and tbere was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided.\n\nThe partition deed shows that the land under the tenancy of the first respondent has been set apart to the share of a minor appellant.\n\nThe Tillers' Day arrived.\n\nThe tenant claimed to have become owner.\n\nProceedings ur1der s. 32G of the Act for determination of the compensation were commenced, and the mantle of protection of the proviso to s. 32F (1) (a) was pleaded in vain.\n\nThe High Court having negatived the landlor?'s contention summarily, this Court has been approached, the pomt urged being the same as in the previous appeal.\n\nIn both the appeals we may proceed, for testing the legal proposition, on assumed facts.\n\nWe may take it that there was a partition in both cases during the period referred to in the proviso, i.e., A before March 31, 1958.\n\nWe may further take it that the widow and the minor come within the category specified in s. 3 2F (1) (a).\n\n- We have also to proceed on the basis that the joint family in each case has other assets which remain joint and undivided.\n\nBefore proceeding further with the discussion t may be proper to read the relevant provision for a break up of the, statutory iimbs : B\n\n\"32F. (1) Notwithstanding anything contained in the proceeding sections- ( a) where the landlord i<s a minor, or a widow or a person subject to any mental or physical disabi'lity the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimatiton to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 :\n\nProvided that where a person of such category is a member of a joint family, the provisions of this sub-secti'on shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.\n\nx x x x\"\n\nWhere the landlord is a minor or a widow, as in this case, the tenants' right to purchase such land under s. 32 is postponed till their\n\ndisability disappears and one year lapses thereafter. But this embargo on the exercise of the right of purchase by the tenant does not operate if the property belongs to a joint family and there is a partition therein and the land in question is allotted to the person under disabiMy.\n\nWhat the section insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; andi\n\n(b) the Mamlatdar is satisfied that the share of such person in the land is separated in the same proportion as the share of that person in the entire joint-family property and not in a larger proportion.\n\nWe are dealing with an agrarian reform law whose avowed object its to confer full proprietorship on tilling tenants and it is a fact of H common knowledge that landlords resort to cute agrarian legal engineering to circumvent the provisions.\n\nThe legislature, with local knowledge of famili'ar manipulations and manouvres calculated to\n\nA defeat land reors, mkes widely-worded provisions the 'why' of it may not. be easily ~1s.cermble to the Court. We have to give full force <\\lld effect without whittling down or supplying words. Nor can the Court presume the mischief and remedy. the evil by interpretative truncation. bl7nd of the grammatical and !]ie teleological modes of construction ts the best and that iSJ what has been done by the High Court.\n\nWe arei free to agree that the itnvolved drafting of the section has had its share in the marginal obscurity of meaning.\n\nBut our legis~ lative process, not an unmixed blessing, works under such instant stress and ad hoc haphazardness that the whole piece when produced makes experienced draftsmen blush.\n\nReform of the inherited lawmaking methodology may save court time and reduce litigation.\n\nBe that as it may, we have to wrestle with the language of the Proviso to decode its true sense.\n\nThe broad idea is to vest full ownership in the tenantry.\n\nA compassionate exception is made in favour of handicapped landlords who cannot prove their need to recover their land on approved grounds.\n\nThese disabled categories include infants and widows.\n\nBut if the lands belong to joint fami!l.ies of which they are members, the raison d'etre for such protection does not exist because the manager of this joint family_ takes care of its collective interests.\n\nWhere, h.owever, there has been a partition of the joint family, then the widow or minor has to stand on her or his own disabled legs and so the Proviso to s. 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer.\n\nBut every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued.\n\nJoint living is the dear, traditional hindu way of life but jettisoning jointness to salvage land is dearer still.\n\nBlood is thicker than water, it has been said; but in this mundane world, property i'S thicker than blood: So partition deeds, conveniently confined to land, became a popular art of extrication.\n\nAnd the, Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled person.\n\nIn this light, we may read the Proviso.\n\nTo steer clear of possible confusion we may agree that partial partition may be lega!Iy permisible and the Hindu law does not require investigation into the motives or motivelessness behind the partition.\n\nWe also accept that division in status is good enough to end commensality .or jointness under the personal law.\n\nBut we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special requirements.\n\nThe Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions.\n\n., .\n\n.llALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.) 683\n\nHere the Proviso can rescue. the widow or the minor only if the prerequisites are fai!rly and fully fulfilled.\n\nSection 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers' Day. The Tribunal suo motu takes action to determine the purchase price.\n\nBut all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under s. 3 2F ( 1) . The crucial issue is whether the Proviso applies even if the separat;\\ln of the widow or minor is restricted to agricultural lands.\n\nShri Wad and Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided i!n fair proportion.\n\nShri Datar presses what the High Court has laconically reasoned, viz., that it is possible tq defeat the scheme by division of the lands alone.\n\nFor one thing, in most such partial partitions, inspired by the desire to avoid the land reforms i•n the offing, the Legislature can, as a policy\n\ndecision, insist on a whole partition, to reduce the evasion.\n\nMoreover, there will be a: sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males.\n\nThe ornaments may all go to the woman, the agriculture to the men.\n\nWe need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay' down conditions and the words of the text must be assigned full effect.\n\nThe Proviso clearly states that the disabled person's s_!iare 'in the joint fam:Jl.y' must have been 'separated by metes and bounds'.\n\nSeparation from ~~ joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that ex~ tent, i's not separated from the joint family. Notional division or division . in status also may not be enough because the Act insists on separation 'by metes and bounds'. Ordinarily 'metes and bounds' are appropriate to real property, meaning, as the phrase does, 'the boundary lines of land, with their terminal points and angles'.\n\nIn the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated.\n\nThe ineptness and involved structure and some ambigui.lfy notwithstanding, the sense of the sentence is clear.\n\nThe share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the sedion uses the expressions 'the share of such person in the joint family', 'the share of such person i!n the land', 'the share of that person in the entire joint family property'. Thus it is reasonable to hold that when the expression used is 'the share of such person in the point family', it is not confined to the share in the land only. It really means his share 'in the entire joint family property'. Moreover. the statutory exercise expected of the Mamlatdar by the Provi<so involves an enquiry into the share of the disabled person in the Jand, and its value, the share of that person in the entire joint family property, the proportion that the allotment of the land bears to his share in the entire joint\n\nA family property, wifth a view to see that there is no unfair manouvre to defeat the scheme of the Act.\n\nThe. necessary postulate is that there is a division in the entire joint family property.\n\nTherefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member i's concerned it must cover all the joint family properties.\n\nB We are therefore in agreement with the interpretation adopted by the High Court.\n\nIn the cases under appeal there is no division of all the joint family properties.\n\nOnly the landed properties have been separated.\n\nThe appeals therefore faill. and are dismissed.\n\nIn the circumstances, we direct parties to bear their costs.\n\nS.R.\n\nAppeals dismissed.\n\n. ..", "total_entities": 50, "entities": [{"text": "BALKRISHNA SOMNATH", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "BALKRISHNA SOMNATH", "offset_not_found": false}}, {"text": "SADA DEVRAM KOLI & ANOTHER", "label": "RESPONDENT", "start_char": 20, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "SADA DEVRAM KOLI & ANOTHER", "offset_not_found": false}}, {"text": "January 20, 1977", "label": "DATE", "start_char": 48, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "BALKRISHNA SOMNATH\n\nSADA DEVRAM KOLI & ANOTHER\n\nJanuary 20, 1977\n\n[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 67, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Agricultwal Lands Act, 1948", "label": "STATUTE", "start_char": 126, "end_char": 153, "source": "regex", "metadata": {}}, {"text": "Bombay Act LXVII of", "label": "STATUTE", "start_char": 155, "end_char": 174, "source": "regex", "metadata": {}}, {"text": "Bombay Act XIII of 1956", "label": "STATUTE", "start_char": 196, "end_char": 219, "source": "regex", "metadata": {}}, {"text": "section 32", "label": "PROVISION", "start_char": 221, "end_char": 231, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act XIII of 1956", "statute": "Bombay Act XIII of 1956"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 379, "end_char": 384, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act XIII of 1956", "statute": "Bombay Act XIII of 1956"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 404, "end_char": 409, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act XIII of 1956", "statute": "Bombay Act XIII of 1956"}}, {"text": "Bombay Tenancy and Agricultural Lands Act 1948", "label": "STATUTE", "start_char": 417, "end_char": 463, "source": "regex", "metadata": {}}, {"text": "s. 32F(l)(a)", "label": "PROVISION", "start_char": 859, "end_char": 871, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act 1948", "statute": "the Bombay Tenancy and Agricultural Lands Act 1948"}}, {"text": "s 32F(1)", "label": "PROVISION", "start_char": 1257, "end_char": 1265, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act 1948", "statute": "the Bombay Tenancy and Agricultural Lands Act 1948"}}, {"text": "section 32F(l)", "label": "PROVISION", "start_char": 1387, "end_char": 1401, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Tenancy and Agricultural Lands Act 1948", "statute": "the Bombay Tenancy and Agricultural Lands Act 1948"}}, {"text": "section 32F(1)", "label": "PROVISION", "start_char": 2512, "end_char": 2526, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32F", "label": "PROVISION", "start_char": 4461, "end_char": 4467, "source": "regex", "metadata": {"statute": null}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 5035, "end_char": 5049, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and P. C. Kapoor for the appellant in C. A. 129 of 1968."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 5051, "end_char": 5064, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and P. C. Kapoor for the appellant in C. A. 129 of 1968."}}, {"text": "P. C. Kapoor", "label": "LAWYER", "start_char": 5069, "end_char": 5081, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and P. C. Kapoor for the appellant in C. A. 129 of 1968."}}, {"text": "S. N. Anand", "label": "LAWYER", "start_char": 5123, "end_char": 5134, "source": "ner", "metadata": {"in_sentence": "S. N. Anand for Respondent No."}}, {"text": "S. B. Wad", "label": "LAWYER", "start_char": 5211, "end_char": 5220, "source": "ner", "metadata": {"in_sentence": "1 in CA 129/68\n\nV. N. Ganpule for the Petitioner in SLP\n\nS. B. Wad and R. N. Nath for the Appellants in CA 2007 of 1969."}}, {"text": "R. N. Nath", "label": "LAWYER", "start_char": 5225, "end_char": 5235, "source": "ner", "metadata": {"in_sentence": "1 in CA 129/68\n\nV. N. Ganpule for the Petitioner in SLP\n\nS. B. Wad and R. N. Nath for the Appellants in CA 2007 of 1969."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 5275, "end_char": 5286, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. C. Agarwal for Respondent No."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 5291, "end_char": 5304, "source": "ner", "metadata": {"in_sentence": "R. B. Datar and S. C. Agarwal for Respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 5389, "end_char": 5401, "source": "ner", "metadata": {"in_sentence": "del(•vered by\n\nKRISHNA IYER, J.\n\nThese two appeals raise a short issue of interpretation of the proviso to s. 32F (1) (a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act).", "canonical_name": "KRISHNA IYER"}}, {"text": "s. 32F", "label": "PROVISION", "start_char": 5481, "end_char": 5487, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Tenancy and Agricultural Lands Act, 1948", "label": "STATUTE", "start_char": 5503, "end_char": 5550, "source": "regex", "metadata": {}}, {"text": "Bombay Act LXVII of 1948", "label": "STATUTE", "start_char": 5552, "end_char": 5576, "source": "regex", "metadata": {}}, {"text": "Dattatraya", "label": "OTHER_PERSON", "start_char": 6101, "end_char": 6111, "source": "ner", "metadata": {"in_sentence": "2007 of 1969 the witlow of a deceased landowner, one Dattatraya, is the appellant."}}, {"text": "Bombay Act XIII of 1956", "label": "STATUTE", "start_char": 6431, "end_char": 6454, "source": "regex", "metadata": {}}, {"text": "s. 32G", "label": "PROVISION", "start_char": 7089, "end_char": 7095, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act XIII of 1956", "statute": "Bombay Act XIII of 1956"}}, {"text": "s. 32F(l)", "label": "PROVISION", "start_char": 7456, "end_char": 7465, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 8420, "end_char": 8428, "source": "ner", "metadata": {"in_sentence": "\"-This was the construction put by the Court on the proviso and challenged before us by Shri Wad in C. A. 2007 of 1969 and by Shri Tarkunde in C. A. 129 of 1968."}}, {"text": "November 7, 1956", "label": "DATE", "start_char": 8585, "end_char": 8601, "source": "ner", "metadata": {"in_sentence": "129 of 1968 the legal scenario is similar~ The family owned1 lands and other assets and tbere was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided."}}, {"text": "s. 32G", "label": "PROVISION", "start_char": 8906, "end_char": 8912, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32F", "label": "PROVISION", "start_char": 9025, "end_char": 9031, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1958", "label": "DATE", "start_char": 9428, "end_char": 9442, "source": "ner", "metadata": {"in_sentence": "We may take it that there was a partition in both cases during the period referred to in the proviso, i.e., A before March 31, 1958."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9535, "end_char": 9539, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 10055, "end_char": 10065, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 10182, "end_char": 10192, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 10454, "end_char": 10464, "source": "regex", "metadata": {"statute": null}}, {"text": "31st day of March 1958", "label": "DATE", "start_char": 10714, "end_char": 10736, "source": "ner", "metadata": {"in_sentence": "Before proceeding further with the discussion t may be proper to read the relevant provision for a break up of the, statutory iimbs : B\n\n\"32F. (1) Notwithstanding anything contained in the proceeding sections- ( a) where the landlord i<s a minor, or a widow or a person subject to any mental or physical disabi'lity the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intimatiton to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 :\n\nProvided that where a person of such category is a member of a joint family, the provisions of this sub-secti'on shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion."}}, {"text": "s. 32", "label": "PROVISION", "start_char": 11233, "end_char": 11238, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32F", "label": "PROVISION", "start_char": 13752, "end_char": 13758, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 15462, "end_char": 15474, "source": "ner", "metadata": {"in_sentence": ".llALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.) 683\n\nHere the Proviso can rescue.", "canonical_name": "KRISHNA IYER"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 15597, "end_char": 15607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15876, "end_char": 15880, "source": "regex", "metadata": {"statute": null}}, {"text": "Wad", "label": "OTHER_PERSON", "start_char": 16029, "end_char": 16032, "source": "ner", "metadata": {"in_sentence": "Shri Wad and Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided i!n fair proportion."}}, {"text": "Datar", "label": "OTHER_PERSON", "start_char": 16232, "end_char": 16237, "source": "ner", "metadata": {"in_sentence": "Shri Datar presses what the High Court has laconically reasoned, viz.,"}}]}
{"document_id": "1977_2_685_701_EN", "year": 1977, "text": ",....\n\n\\ .,\n\nTATA ENGINEERING & LOCOMOTIVE CO. LTD.,. BOMBAY v.\n\nTHE REGISTRAR OF THE RESTRICTIVE TRADE\n\nAGREEMENT, NEW DELHI\n\nJanuary 21, 1977\n\n[A. N. RAY, C.J.; M. H. BEG AND JASWANT SINGH, JJ.]\n\nMonopolies & Restrictive Trade Practices Act, 1969-ss. 2(o) and 33- Scope of. ·\n\nAgree111~11t-lf amounts to a restrictive trade practice-Tests for deciding.\n\nSection 2(o) of the Restrictive Trade Practices Act, 1969 defines \"restrictive trade practice\" to be a trade practice which tends to bring about manipulation of prices or conditions of dt;_livery or to affect the flow of supplies in the market relating to goods or services in•such manner as to impose on the consumers unjustified costs or restrictions.\n\nSection 33 provides that any agreement relating to a restrictive trade practice falling within one or more of the categories (a) to (1) specified in sub-s.(1) thereof shall be registered.\n\nSection 37 enacts that the Monopolies and Restrictive Trade Practices Commission may inquire into any restrictive trade practice, whether the agreement relating thereto had been registered under s. 35 or not.\n\nUnder section 38 when the Commission finds that such restrictions are necessary or justified, in the circumstances mentioned in the section, it may permit such restrictions.\n\nThe appellant is a manufacturer of heavy and medium commercial vehicles.\n\nThe appellant enters into an agreement with dealers in regard to sale of its vehicles.\n\nClause 1 (a) of the agreement provides that a dealer shall buy from the Regional Sales Office of the company a new Tata diesel truck for resale within the territory described in accordance with the provisions of the agreement.\n\nClause (b) provides that the agreement shall not preclude the company from entering into any dealership agreement with. any other person or persons within the said territory.\n\nClause 3 prohibits the dealer from selling the vehicles either directly or indirectly to any person outside the territory.\n\nClause 6(a) provides that the dealer shall maintain an organisation for the sale of the vehicles in accordance with the directions of the appellant. Clause 14 prohibits the dealer from handling or selling vehicles manufactured or supplied by any other company.\n\nIn a petition under s. !O(a) (iii) of the Act, the Registrar of the Restrictive Trade Practices alleged that els. (l) and (3) of the agreement between the appellant and its dealers provided for territorial restrictions or allocation of areas or market, cl. (6) provided for resale price maintenance, cl. 14 provided for exclusive dealership and all these clauses of the agreement showed that the appellant was indulging in restrictive trade practices relating to allocti:;\" of territories or areas among its dealels and that the appellant was not w11lmg to abandon the restrictive trade practices.\n\nThe Commission held inter alia that els. (1) and (3) of the agreement constituted restrictive trade practiees and, therefore, void.\n\nIt was contended on behalf of the respondent that irrespective of the injurious or beneficial consequences of a trade practice which may restrict competition, an al'reement may fall 'Yithin the _difinition o\\ tat t_erm in s. 2( o) of the Act.\n\nAn injurious or beneficrnl result of the restnctton is relevant only for purposes of s. 37 and s. 38 and not for the purposes of s. 33. .\n\nAllowing the appeal, HELD : The agreement in the present case was not within the vice of restrictive trade practice and was not registrable.\n\n.A ( 1) An agreement will be registrable when it will have both the e!l'ect of restricting competition within the meaning of s. 2(o) and also deal with the subject matter described in ss. 33(1)(a) to (I). A practice which is not restrictive under s. 2 ( o) of the Act cannot be a restrictive trade practice only because of els. (a) to (I) of s. 33(1). Section 33 does not provide statutory illustratiqns to s. 2 ( o) of the Act but only enumerates some types of trade practices which, if they are. restrictive within s. 2 ( o), require regiitration.\n\n[693 F-G]\n\n(2) The definition of restrictive trade practice is an exhaustive and not an inclusive one. The decision whether a trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on doctrine that any restriction as to area or price will per se be a restrictive trade practice. The question in each case is whether the restraint is such as regulates and thereby promotes competition or whether it is such may suppress or even destroy competition. To determine this question three matters are to be considered, namely, (I) what facts are peculiar to the business to which the restraint is applied, (2) what was the condition before and after the restraint was imposed, and (3) what was the nature of the restraint and what was its actual and probable effect.\n\n[693 D-FJ\n\n(3) When the authorities under the Act want to challenge any agreement or any practice as a restrictive trade practice, it has to be established that it is a restrictive trade practice within the definition of s. 2(o). If it is found that it is a restrictive trade practice, it has to be registered under s 33. It is only after an agreement had been registered that there is an enquiry under Chapter VI of the Act. This enquiry under s. 37 is to find out whether a restrictive trade practis.e is prejudicial to the public interest.\n\n[692 H, 693 A]\n\n( 4) The two terms of restriction on dealers, namely, one confining sales within the territory and the other confining dealers to dealing in only the appellant's vehicles are not prejudicial to public interest. The territorfol restriction is also in public interest and the Commission was in error in thinking that it was not so.\n\n[701 C-D]\n\nIn the instant case, the supply of commercial vehicles is far below the demand and the gap between supply and demand is growing.\n\nThe vehicles of the appellant were in great demand not only in the country but outside the country as well.\n\nClauses relating to territorial restriction do not constitute 'restrictive trade practice because the domestic market is spread all over the country, to meet the needs of the users of vehicles the appellant has a counhywide network of dealers who maintain service stations, workshops, requisite equipment, machinery and trai.ned personnel. The appellant ensures that the\n\nvehicles arc only sold by dealers who have the requisite facilities and orani sation to give after sales service. The appellant gives a warranty in respect of the vehicles. A geographical network is natural to the industry which the appellant has set up.\n\nThe appellant has zonal offices throuhout the country.\n\nIf tte territorial restriction is removed, there will be a tendency for person to book orders in all areas thus starving the consumers of a particular area of their equitable share and disrupting the flow of vehicles in both areas. If the dealer is not assumed of a steady demand in his territory he may have no incentive or may .. t10t find it economic to organise proper after sales-service.\n\nSome of the dealers have even maintained mobile service vans. [694 H, 695 A]\n\nThe exclusive dealings of the appellant dQ. not impecje competition but promote it.\n\nSuch dealings lead to specialisation and improvement in after-salesservice.\n\nThe exclusive dealership agreements do not restrict distribution in any area or prevent competition.\n\nBy making its dealers exclusive, it cannot be said that there is preyention, distortion Qr restriction of competition in the territory in which the dealer operates.\n\nAny manufacturer of vehicles similar !o those of the appellant is also free to appoint dealers of its c, hoice in the sam.e territory covered by the appellant's dealers.\n\nThe channels for outlet for veht- ; c1es have not been blocked. f699 F-Gl\n\n( <\n\nWhen there is acute scarcity of the goods and there is no possibility of A dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Territorial restriction promotes competition between the different manufacturers in every part of India. [700 B-C]\n\nClauses (1) and (3) are in the interest of the consumer and ensure an equal distributi9n as far as possible of the goods at a fair price. Clauses (6) and (14) do not amount to a restriction in competition because other manufac- B turers could appoint other persons to deal in their commercial vehicles. It is also in public interest to §ee that vehicles of other manufacturers are sold in the same territory by other dealers.\n\n[701 B-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1117(NCM) of 1976.\n\n(From the Judgment dated the 25.7.1975 of the Monopolies & C Restrictive Trade Practices Commissioner New Delhi in R.T.P.E. No. 1 of 1974)\n\nN. A. Palkhivala, F. S. Nariman, Ashok H. Desai, Ravinder Narain, J. B. Dadachanji, 0. C. Mathur, S. Swarup, Talat Ansari, Shri Narain, K. J. John and D. N. Mishra, for the Appellant.\n\nLal Narain Sinha, Mrs. Shayamla Pappu, G. A. Shah, R. N. Sachthey, Girish Chandra and B. B. Sawhney, for the Respondent.\n\nR. Narain, J. B. Dadachanji,\n\n0. C. Mathur, S. Swarup, Talat\n\nAnsari, Interveners for M/s. Hindusran Livers Ltd., Ashok Layland\n\nLtd. Escorts Ltd.\n\nK. J. John, for M/s.\n\nHindustan Livers Ltd.\n\nAnil B. Divan, R. Narain, J. B.\n\n\"-\\ Dadachini, 0. C. Mathur, S.\n\nSwarup, Talat Ansari, S. Narain, Interveners for CIBA Geigy of\n\nIndia Ltd.\n\nAshok, M. Desai R. Narain\n\nJ. B. Dadachanji, 0. C. Mathur,\n\nTa~1!t Ansari, S. Swarup &\n\nD. N. Mishra, Interveners for Batliboi & Co. (P) Ltd.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal is under Section 55 of the Monopolies and Restrictive.Trade Practices Act, 19691, (referred to as the Aci) against\n\n''~ the judgment and order of the MonopoVes and Restrictive Trade Practices Commission (referred to as the Commission) dated 25 July, 1975.\n\nThe principal question for consideration in this appeal is whether the agreement between the appellant referred to as Telco and its dealers allocating territories to its dealers within which only the B dealers can sell bus and truck chassis referred to as the vehicles pro\" duced by the company constitute a \"restrictive trade practice\".\n\nSection 2 ( o) of the Act defines \"restrictive trade practice\" to be a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular\n\n(i) whith tends to obstruct the flow of capital or resources into the •C stream of production or (ii) which tends to bring about manipulation of prices, or conditions or delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restr;'ctions.\n\nSection 33 of the Act provides that any agreement relating to a restrictive trade practice falling within one or more of the categories\n\n(a) to ( 1) specified in sub-section ( 1) thereof shall be subject to registration.\n\nSection 37 of the Act provides that the Commi; ssion may enquire into any restrictive trade practice, whether the agreement, if any, relating thereto has1 been registered under Section 35 or not which may come before its enquiry, and if, after such enquiry it is of opinion that the1 practice is prejudicial to the public interest the Commission may, by order direct that (a) the parctice shall be discont:•nued or shall not be repeated; (b) the agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modi-' fied in respect thereof in such manner as may be specified in the order.\n\nSection 3 8 of the Act provides that a restrictiv~ trade practice shall be deemed to be prejudicial to the public interest unless the Commitssion js satisfied of any one or more circumstances mentioned in that section.\n\nThe circumstances mentioned inter alia are these.\n\nThe restriction is rea_sonably necessary havin_g regard to the character of the goods. to whi'ch: it applies to protect the public against injury in connection with the consumption, or installation or use of these goods.\n\nThe removal of the restriction would deny to1 the public as purchasers, consumers or users of any goods, other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such, whether by virtue of the restriction itself or of any arrangements for operations resulti!ng therefrom.\n\nThe restriction is reasonably necessary to counteract measure taken by any one peron not party to the agreement with a view to preventing or restricting competition in or in relation to the trade or business in which the persons tpereto are engaged.\n\nThe restriction is reasonably required for purposes in connectiton with the maintenance of any other restriction accepted by the parties whether under the same agreement or\n\nunder any other agreement between them, being a restriction which is found by the Commission not to be contrary to the public interest upon other grounds other than specified in this paragraph.\n\nThe restriction does not directly or indrectly restrict or discourage competition to any material degree in any relevant trade or industry and is not likely to do so. The Commission is also to be satisfied that the\n\nrestriction is reasonable having regard to the balance between the citrcumstances and any detriment to the public or to persons not parties to the agreement being purchasers, consumers or users of goods produced. or sold by such parties or persons engaged or seeking to become engaged in the trade or business of selling such goods or of producing or selling similar goods resulting orlikely to result from the operations of restriction. -\n\nThe expressions purchase!'.S, consumers and users include persons purchasing, consuming or using for the purpose or in course of trade or business or for public purposes.\n\nSection 38 of the Act is, described in the phraseology of restrictive .trade practices as providing \"gateways\" to trade.\n\nThe essence of the section is that when it is found by the Commission that such restrictions are necessary or justified in the circumstances mentioned in the section restrictions are permitted. Again the balancing clause after clause (h) in section 38 of the Act, indicates when the restriction is not unreasonable having regard to the balance between the circumstances mentioned in the section and detriment to .the publi'c resulting from the operation of the restriction.\n\n• Telco is a public limited company and is a leading !llanufacturer; of heavy and medi!um commercial vehicles.\n\nThe capital investment required for a new factory in this trade is of a high order.\n\nAt present there are only four principal manufacturers of commercial vehicles.\n\nThese are The Hindustan Motors Ltd., Premier Automobiles Ltd. and Ashok Leyland Ltd. and Telco.\n\nThe supply of commercial vehicles is said to be below the demand.\n\nThe scarcity of supply is particularly accentuated i'Il the case of Telco's vehicles as they are in great demand all over the country and abroad.\n\nThe export of Telco was over 80% of the total exports of commercial vehicles from the country during the year 197 4-7 5.\n\nThe marked\n\nconsumer preference for Telco's vehicles has been maintained because G of the high quality if its products and also because of elaborate and comprehensive net work of after-sales service pro-\" vided by Telco's dealers.\n\nTelco has of its own initi'ative introduced certain procedures for a fair and wide geographical distribution of its vehicles which seek to ensure that the new vehicles are supplied not only to the urban areas of the country where them is a high demand1 but also to the remote areas such as Tripura, Nagaland, Hi•machal H Pradesh etc.\n\nTelco has notified to its dealers the maximum price for each model of vehicle whi'ch they could charne to consumers. In May, 19'72 Telco introduced a procedure to regulate, the booking of\n\n- -'\"'- -- -- - lLL -\n\norders by its dealers and effecting the delivery of vehicles against such orders with a view to ensuring distribution of its vehicles in the chronological order in which orders had been registered with the dealers.\n\nWhen Telco sells vehicles it has the responsibility of provi'ding faci~ lities for servicing and repairing the vehicles marketed by it.\n\nIt is essential that in the interest of the consumers such facilities are widely distributed throughout the country. Even in remote areas where the demand of new vehicles is less, it is necessary to provide faci.Lties for after-sales service in order to enable the owners of the vehicles to keep them in operation.\n\nThese facilities are provided by Telco through all India net work ' of 68 dealers, 69 service centres of sub-dealers and 13 zonal offices • --\\ of Telco. Each dealer has to mai•ntain premises for a show-room and a service station and to keep special tools as well a_s a comprehensive , range of spare! parts supplied by Telco. Further a dealer has also to employ technically qualified personnel some of whom have been trained by Telco in its Apprentice School at Jamshedpur.\n\nIn addition Telco maintains its own staff of trained engineers and mobile vans in each of iits zonal offices.\n\nThe Registrar, Restrictive Trade Agreements made an application under Section lO(a') (iii) of this Act before the Commission for enquiry under Section 37 of the Act into restrictive trade practi'ces\n\nalleged therei'n.\n\nThe allegations in the petition were these. Clauses\n\n(1) and (3) of the, agreement between Telco and its dealers provide for territorial restriction or allocation of area or market and clauses 6 and 13 provide for resale price maintenance and clause 14 provides for exclusive dealership.\n\nThe Registrar submitted that Clauses 1, 3, 6 and 14 show that the company is indulging in restrictive trade practices inter alia relating to allotment of territories/areas among its dealers_ and exclusive dealings and Telco is not willing to abandon the restrictive trade practices. It its signicant to notice that no particulars of such alleged restrictive trade practices were set out in the application.\n\nClauses 1, 3, 6 and 14 in so far as they are appropriate to the present appeal are as follows :-\n\n\"l. (a)\n\n(b)\n\nThe Dealer agrees to buy from the Regional Sales Office\n\nof the Company regularly from time to time on principal to principal basil> all such new Tata diesel truck and bus chassis with or without cab and/or body (hereinafter refered to as \"the said vehicles\", for resale within the territory described hereunder (hereinafter called \"the said territory\") in accordence with the provisions of this Agreement.\n\nThis Agreement shall not preclude the Company from entering into or continuing any dealerhip agreement or agreements with any other person or persons within the saitl territory for sale of the said vehicles and resale by\n\nthat person thereof in the said territory, this Agreement with the Dealer does not constitute him a selling agent of the Company in the said territory, much less a sole selling agent.\n\n3. The Dealer shall not, either directly or indirectly and either alone or in conjunction wi'th others, promote the sale of or sell any of the said vehicles to any person or party outside the said territory, nor shall he sell the same to any person within the said territory if the said vehicles are intended to be used outside the said territory.\n\n6. (a) The Dealer shall, at hO> own expense, maintain within the said territory such organisation for the sale of the said vehicles as .may, in the opinion of the Company which shall be binding, be deemed to be necessary to adequately cover the said territory and ensure the best possible results.\n\n14. Except with the written permission of the Company first\n\nobtai•ned, the Dealer shall not during the pendency of this Agreement either directly or indirectly engage in or promote the salS'. of or use, handle or sell any truck or . bus chassis, which is not manufactured or supplied by the Company.\"\n\nTelco denied that any of the alleged clauses amounted to restrictive trade practices.\n\nTelco submitted as follows :\n\nFirst, though alleged clauses imposed restrictions on the dealers E these did not amount to restrictive trade practices within the meaning of the Act.\n\nSecond, Clauses 1 and 3 which deal with certain defined territories allocated to the dealers are intended to avoid unequal and unfair distribution of the vehicles among the customers.\n\nThird, any restriction as to maximum price at which goods can be resold to the Telco's dealers particularly when Clause 6 (1) (ii) specifies what is implicit therein, namely, that the dealer may sell below the maximum price fixed by Telco cannot possibly amount to restrictive trade practice. .\n\nFourth, Clause 14 which prohibits a distributor from dealing :n products of other manufacturers would normally not be restrictive trade practice unless there are special circumstances which exist and indicate that the agreement has the effect of preventing, di.storting or restricti'ng competition.\n\nTelco finally submits that none of the restrictions imposed in Clauses 1,3,6, and 14 are unreasonable having regard to the balance between the circumstances set out in section 38 of the Act and any alleged detriment to the customers of Telco and or the competitors of Telco allegedly resulting or likely to result from the operation of these restrictions.\n\n10-l 12SCI/77\n\nThe Commission held that the moment an agreemtmt conta;•aed a trade practice falling within any of the clauses in Section 33 (1) of the Act, the trade practice must be regarded as a restrictive trade practice.\n\nThe Commission held that all the clauses alleged in the pet.'tion of the Registrar amounted to restrictive trade practices.\n\nThe Commission further said that in regard to Clauses 6 and 13 in the light of the assurance given by Telco that in its future price lists it would specifically state that the dealer is free to charge on the resale of Telco's vehicles, prices lower than the maximum pr;'Ces fixed by Telco, no order was required to be passed regard; ng the alleged practice of maintenance of minimum resale prices.\n\nThe Commission further held that although the contractual term that the dealers could deal only in Telco's vehicles was a restrictive trade practice, it was not against public interest as it fell withi•n subclauses (a), (b) and (h) and the balancing clause of Section 38(1) of the Act.\n\nThe Commisssion however held that the practice of allocation of territories to Telco's dealers was not justified. 1n the result the Commi•>sion declared that Clauses 1 and 3 of the Agreements in so far as D they related to allocation of any territory or area or market to any of the dealers for the distribution of the vehicles constituted restrictive trade practice and, therefore, void and restrained Telco from continuing or repeating the practice.\n\nBefore the Commission Telco contended that the applicat;•on of the Registrar was not in accordance with Regulation 55 of the Mono- E polies and Restrictive Trade Practices Commission Regulations, 1974, referred to as Regulations.\n\nUnder the Regulations an application under secti•on lO(a) (iii) of the Act must contain facts which, in the Registrar's opinion, constitute a restrictive trade practice and, if it is in relation to any agreement, set out, such portitons of the agreement as may be necessary to\n\nJ \\\n\nF bring out the facts complained .of. It has to be stated that in the pre- .- sent case Telco is right in contending that beyond making mere ,.,,, references to clauses of the agreement and bald aHegations that the\n\nclauses constitute restrictive trade practice, no facts or features arc set out in the petition to show or establish as to how the alleged clauses constitute restrictive trade practice in the context of facts.\n\nThe Solicitor General contended as follows. First, the definition of restrictive trade practice i•ncludes all trade practices permissible or forbidden provided they restrict competititon or even tend to restrict competition.\n\nThe instances set forth in the definition of restrictive trade practice emphasize the factors which go to establish a restrictive trade practice.\n\nClauses (i') and (ii) in Section 2 ( o) of the Act afford graver instances of restrictive trade practice.\n\nH Second, Section 33 of the Act requires an agreement falling within the Clauses thereof to be registered. 1n short an agreement which amounts to a restrictive trade practice will be first registered and then\n\n< .\n\n' •\n\n--~\n\nan enquiry wll be made under Chapter VI of the Act as to whether A the restrictive trade practice is prejudicial to the public interest.\n\nIrrespective of the injurious or beneficial consequence of a trade practice which restricts or may restrict competition, i•t may fall within the definition.\n\nInjurious or beneficial result of the restriction is relevant only for purposes of Sections 37 and 38 of the Act.\n\nSection 33 of the Act states that any agreement relating to a B restrictive trade practic~ falli'ng within one or more of the categories mentioned therein shall be subject to registration in accordance with the provisions of Chapter: V_ of the Act.\n\nClauses (a) and (d) in subsection (1) of Section 3 3 are relevant in the present case.\n\nThese are, inter alia, (a) any agreement which restricts or is likely to restrict by any method the persons or clauses of persons to whom goods are sold or from whom goods are bought and ( d) any agreement to pur- C chase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers.\n\nThe definitAm of restrictive trade practice is an exhaustive and not an inclusive one.\n\nThe decision whether trade practice i•s restrictive or not has to be arrived at by applyingi the rule of reason and not D on that doctrine thoat any restriction as to area or price will per se be a restrictive trade practice.\n\nEvery trade agreement restrains or binds oersons or places or prices.\n\nThe questi'on is whether the restraint is such as regulates and thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine this question three matters are to be considered.\n\nFirst, what facts are peculiar to the business to which the restraint is applied. Second, E what was the conditi•on before and after the restraint is imposed .\n\nThird, what is the nature of the restraint and what is its actual andl probable effect.\n\nSection 33 ( 1) of the Act deals with registration of certain types of restrictive trade practices which have the subject matter described in categories mentioned in clauses (a) to (I) of Section 3 3 (J ) of the Act.\n\nAn agreement will be registrable, when it will have both the effect of restricting competition within the meaning of Section 2 ( o) of the Act and also deal with the subject matter described in Clauses,\n\n(a) to (1) of sub-section (l) of Secti'on 33 of the Act.\n\nClauses (a) to (I) aforesaid describe some species of agreement which requ:•re\n\nregistration if they. are within the genus of restrictive trade practice defined in Section 2 ( o) of the Act.\n\nA practice which is not restrict:•ve under section 2 ( o) of the Act cannot be restrictive trade practice only because on Clauses (a) to (1 ) of sub-section ( 1) of Section 3 3 of the Act.\n\nSection 33 does not provide statutory illustrations to Section 2 ( o) of the Act but only enumerates some types of trade practices which. if they are restrictive within Section 2(o) of the Act require registration.\n\nSection 33 fixes categori'es of restrictive trade practices.\n\nSection 3 3 states that any agreement relating to a restrictive trade practice falling within one or more of the categories mentioned therein shall\n\n- a,\n\nbe .subiect .to registration.\n\nTherefore, before ; m agreement becomes reg1strablei 1t has to be a restrictive trade practice in accordance w, tth the definition of Section 2 ( o) of the Act.\n\nAt the threshold it has to b~ found out wheth<ir an agreement constitutes a restrictive trade practice. In Section 33 it is stated, for example, that any agreement which restricts, or is likely to restrict, by any method the persons or clauses of persons to whom goods are sold or from whom goods are bought is one of the categories of a registrable restrictive trade practice.\n\nIn the present case it has to be found out first whether the agreement of exclusive dealership between Telco and the dealers containing the restriction on the dealer not to sell the commercial vehicles of Telco in other territories falls within the vice of a restrictive trade practice.\n\nUnder the Act, action can be taken against a restrictive trade practice. Therefore, when the authorities under the Act want to challenge any agreement or any practice as a restrictive trade practice, it has to be established that it is a restrit:tive trade practice within the definition of the Act. If it is found to be a n_:strictive trade practice the next stage is to register agreements relating to a restrictive trade practice.\n\nSection 33 states that any agreement relating to a restrittive trade practice falling within one or more of the categories mentioned therein shall be subject to registration.\n\nThe authorities have to examine the agreement and find out whether it falls within the vice of a restrictive trade practice before the authorities can ask th•at the agreement be registered under Chapter V of the Act.\n\nIt is only after an agreement has been registered that there is an enquiry under Chapter VI of the Act.\n\nThis enquiry under Section 37 o~ the Act is to find out whether a restrictive trade practice is prejudicial to the public interest.\n\nSection 38 of the Act lays down the circumstances under which a restrictive trade practice is presumed to be in the public interest and not to be deemed to be prejudicial to the public interest.\n\nIn the present case the question is whether the dealershi•p agreement between Telco and the dealers whereby the dealers are not permitted to sell the commercial vehicles outside their zones amounts to a restrictive trade practice. The questions posed are : Does it prevent distort or restrict competition in any manner ; Does it affect the flow of supplies :•n the market relating to goods or service in such manner as to impose on the consumers unjustified costs or restrictions.\n\nThe evidence about the features of the trade is this.\n\nThe medium and heavy vehicles in the trade are restricted to those licensed by Government for manufacture in the country. The capital investment required for a new factory is of a very high order, namely, almost Rs. l 00 crores.\n\nAt present the only manufacturers of commercial vehicles are Telco which produces Tata Vehicles, Hindustan Rotors Ltd., which produces Hindustan Vehit!es, Premier Automobiles, which produces Premier Vehicles and Ashok Leyland Ltd., which produces Leyland vehicles.\n\nThe supply of commercial vehicles is far below\n\nthe requirement of the industry.\n\nThe gap between the demand and A the supply is increasing with the passage of time as the trade is developing at a faster pace than the growth in the number of vehi'Cles produced.\n\nThe Government of India estimated during the year 1974-75 the production of 56,300 medium and heavy vehicles.\n\nThe productioµ, however, is now likely to be of the order of 35,000.\n\nThe Filfth Five Year Plan for the production is said to be increased to\n\n80, WO.\n\nIt its said that against this target the installation capacity B today is 46,300 vehicles.\n\nEven if the expansion programme is fully implemented the installed capacity by the end of the Fifth Five Year Plan will be only 66,975 vehicles per year.\n\nThe scarcity which is a feature of this trade is accentuated in the case of Telco's vehicles because they are iin great demand all over the country and even in the export market. In 197 4 it is said that Telco exported vehicles amounting to 86% of the total export from the country.\n\nThe export earnings are said to be Rs. 7.29 crores for: 1101 vehicles. At the time of arguments it was suggested that Telco exports now vehicles worth Rs. 10 crores.\n\nThe clauses relating to territorial restriction in the present case do not const\\ttute restrictive trade practice for the following reasons :\n\nThe dQmestic market in India i•s spread over this vast sub-continent with very divers conditions of roads, population and damand.\n\nIt is essential for the community, the consumer and the manufacturer to have an equitable geographical di<stribution of his vehicles. Vehicles may be required for operation in any part of I; idia and public interest requires that the channels of communication should be open throughout the country.\n\nThese vehicles should ply even in the remotest areas like Ladakh, Nagaland, etc.\n\nA user of Telco vehicles expects to get all over the country the service of a high standard enjoined by Telco upon its dealers.\n\nTelco on its part also needs a country-wide network of dealers so that sales take place and the dealers can maintain the service stations, spare part stocks and workshops with the requisite equipment, machinery and trained personnel all over the country.\n\nThis also enables the consumers to rely on Telco's vehicles since they in turn can expect services, repairs and spare parts all over India.\n\nTelco has thus to ensure an all India network of dealers, including those which will serve remote areas.\n\n It is evidence that commercial vehicles is a highly complex . mechanical product.\n\nWhen Telco sells a vehit:le it also has a responsibility that the vehicle is kept running and maintained in the optic\n\nmum condition Telco must preserve its reputation and ensure that the vehicles are only sold by dealers who have the requisite facilities and: organisation to give the proper after-sales service.\n\nUnlike most con- H sumer praducts, a commercial vehicle involves a continuous relationship between a dealer and a consumer.\n\nThe consumer looks to the dealer. for keeping the vehicle running and for all attendent faciE'ties like\n\nservice stations, workshops and spare parts. Reliability and repair of a vehicle, which represents a substantial investment for the consumer, is vital also to the, public a~ a whole and there must be constantly available throughout the country a network of dealers with adequate repair and maintenance service. Even before the delivery of a commercial vehicle to the consumer, there is a meticulous pre-delivery inspection and service by the dealer.\n\nAfter delivery, Telco gives. three free services.\n\nTelco also gives a arranty for a period of six months from the date of registration or 12 months from the date of delivery of vehicle from the factory or for a period ;•n which the vehicle has run for a distance of 32,000 kilometers, whichever expires. earlier.\n\nThere are outstanding distinctions between a car dealer and a. commercial vehicle dealer. The peculiar characteristics of dealers in commercial vehicles are these : The purchase of a car in India rarely represents the substantial or the bulk of the investment of a purchaser ..\n\nThe1 puchase of a commercial vehicle, however, represents the substantial and oft~ tqe only capital investment of the owner.\n\nA chassis manufactured by Telco is sold\\ to the customer at almost a lakh of rupees and the body costs him about Rs. 15,000/- for a truck and about Rs. 40,000/- for a bus. Over 80% of persons owning trucks. are individual owners having not more than two trucks and mostly only one truck.\n\nThe vehicle is normally constantly on the road and is put to the maxi•mum possible use with often more than one driver plying it.\n\nThus a1 vehicle plies on an average over a lakh of kilometers per year.\n\nThe heavy investment also makes it necessary that a, vehicle should be constantly on the move. The owner can ill-afford to waste time and requires easily a_£cessible and prompt Service Stations, Workshops and stocks of spares.\n\nThe purchaser regards the truck! as a life-time investment.\n\nThe purchaser looks to the dealer for prompt after-sales servit:e and repairs.\n\nSince 80% of truck operators are individual operators and often have scant mechanical knowledge, they have to depend upon the dealer for keeping the truck moving with the necessary trained personnel, workshop, servite stations and stocks of spares.\n\nAs a result of these characteristics, the relationship between a dealer and the truck purchaser is much more constant than with the car purchaser. The sandard of service he expects is more vigorous and prompt.\n\nVehicles of Telco are in keen demand, both because of their quality as also because of the assurance of effic:•ent after-sales service by the network of Telco dealers.\n\nThese requirements cannot be met unless there is a network of dealers with specific territories.\n\nIt is essential from the angle of the consumer, Telco and the public that there should be widest and equitable geographical distribution of the vehicles of Telco.\n\nPublic interest itself requires that the vehicles should not be concentrated in metro centres or urban areas where there is a high demand for them, to the deteriment of the remote, areas\n\nor sami-urban areas.\n\nThe consumer also plies trucks all over the country and expects that where-ever he goes, whether to Kerala or Assam, there should be a dealer, a service station, a workshop, trained personnel and spare parts which can attend to Telco trucks.\n\n•'\n\nUrban area centres like Bombay, Delhi and Calcutta, have a very A large demand as compared to the est of th~ country .. But at the same time Telco has to ensure sales m places hke Kashmir, Nagaland:\n\nand Tripura, where the demand is .much less.\n\nIn fact, _in ome of these areas, there are no alternative means of commumcat10n and1 transport like railways and the life of the community is largely dependent upon road transport.\n\nEven where the demand is less, there has to be a: dealer with the necessary facilities and organisation for B after-sales-service.\n\nTelco appoints dealers for di•fferent . territories in India.\n\nThe geographical network is natural to the industry itself.\n\nThe purchaser will purchase and get his vehicle serviced in his own territory.\n\nThe purchaser looks to a de_aler in his own territory with whom he has relationship and who• wili give him credit facilities, who will c render after-sales-service and from whom he can purchase spares, who will handle warranty claims and with whom he can have constant relationship for purchases in future.\n\nUnless a dealer is assured of customers in his own area .. and zones, he will not have the necessary incentive to maintain the optimum lavel of service stations, workshops and spare part stocks, nor can the dealer plan his resources including technical personnel, capital equipment and financial resources for D h:';; future commitment.\n\nTelco regards after-sales service of crucial importance to serve its consumers.\n\nIt is natural and cheaper for a purchaser to buy and service his vehicles in his own territory.\n\nAfter-sales-service of Telco is fairly elaborate a1'd complex and it is because of the standard of this service that Telco has been able to maintain the reputation. Each dealer is required to provide one premises for show-room, service station, workshop, spare parts, shop, canteen and also (a) rest house for drivers; (b) equipment and machinery for maintenance and repairs; (c) set or sets of special tools specially designed for carrying out repairs to Telco's vehicle; ( d) Technical personnel including personnel trained by the appellant at its factory in Jamshedpur and. ( e) adequate stock of spare parts to meet the potential demand in the territory. .\n\nTelco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur. If the terr;•torial restriction is removed, there will be a tendency for persons\n\nto book orders in areas thus starving the consumers of that area of their equitable share and disrupting the flow of vehicles in both areas.\n\nG This will create pockets of artificial scarcity and dislocate the network.\n\nIf the dealer is not assured of a steady demand in his territory, he may have no i'ncentive or may not find it economic to organise proper after-sales-service.\n\nThis would also result in dealers diverting their supplies to metro centres starving the semi-urban and rural areas.\n\nNetwork of dealers and service stations has a direct relation with H the territorial assurances given to each dealer.\n\nIt is as a result of such assurances that a dealer is able to maintain the whole chain of dealership network, service stations, stocks of spare parts, trained per-\n\nSUIREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nsonnel, equipment, special tool kits and given the optimum service as laid down by Telco to its vehicles.\n\nSome of the dealers have even maintained mobile service vans.\n\nThe dealer has to invest a large amount in providing all these facilities.\n\nThe dealer is familiar :-Vith his trritory nd. in view of the potential sales, takes steps to improve his orgamsat1on. If these clauses are omitted the dealer would not make investment and would neglect the serice facilities to the detriment of the consumer. ·\n\nIn the light of scarcity in the supply of vehicle's and the need to distribute vehicles to all the dealers in India, Telco makes equitable distribution of its products by taking into account these factors : (a) Population of commercial vehicles in the dealer's territory; (b) Orders from customers pending with the dealer; ( c) Preference for Tata diesel vehicles as against other makes in the territory of the dealer ( d) Past sales performance of the dealer; ( e) Effective aftersales-service provided by the dealers; (f) Special requirements of the territory during the erection of Government Projcts such as steel plants, construction of dams etc.; (g) Emergency requirements of the territory on account of drought, flood relief etc; (h) Government recommendations for meeting certain specific requirements; (i) Dependence of the particular territory on road transport and (j) Requirements of State Government and nationalised transport undertakings which are procured through dealers.\n\nThe demand for the vehicles has always exceeded the supply making it imperative for Telco to ensure equitable distribution of the vehicles to the various parts of the country.\n\nThere are many commercial agreements under which the territories are divided among dis- E tributors and such agreements do not constitute restrictive trade practice, where the whole object is to ensure fair, efficient and even distribution particularly of a commodity which is in short supply and in great demand. If these were not done and it was permitted for one dealer to encroach on the territory of another this would affect the flow of vehicles into the market leaving some territories unsupplied.\n\nIn order to prevent this undesirable position that dealers were appoint- F ed for different territories and care was taken consistently to see that all parts of the country are treated equally and fairly.\n\nThe exclusive dealings do not impede competition but promote it.\n\nSuch dealings lead to specialisation and improvement in after-salesservice.\n\nThe exclusive dealership agreements do not restrict distribution in any area or prevent competition.\n\nThe customer has the choice of buying any make he likes.\n\nThe advantage of exclusive dealership is that a dealer specialises in his own type of vehicle with all the attending advantages of trained personnel, special service stations, workshops and spare parts.\n\nEach set of special tools costs approximately Rs. 55,000.\n\nThe set is suitable for '.servicing one vehicle at a time.\n\nSome dealers like the United Motors Pvt. Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur.\n\nThe investment of United Motors is approximately Rs. 24 lakhs.\n\nIt is estimated that one service station with special toofs of Telco and workshop equipment will cost as much as Rupees five lakhs.\n\nIt is by specialising in each make of vehicle and providing the A lbest possible service that the competition between the various makes\n\nis enhanced.\n\nIt is practically not possible for the same dealer to '.have parallel lines of service stations, workshops, spare parts, trained personnel for different makes.\n\nIt is also not practical for the dealer 10 maintain different and competitive standards laid down by different .companies which may differ from manufacturer to manufacturer. If .a dealer has more than one franchise, the competition between the 13 various makes will be reduced.\n\nIt will be difficult for the manufacturer to make the dealer responsible for his mal; e and concentrate on it.\n\nThere may be conflicts between his responsibility for after-sales- :service.\n\nTelco commenced appointing dealers in 1954.\n\nAt that time 25 or 26 dealers were appointed.\n\nThe number increased to 68. There c :are also sub-dealers.\n\nEach dealer is required to make a security deposit varying from Rs. 1 lakh to Rs. 6 lakhs.\n\nTelco pays interest •On deposits and security deposits.\n\nA dealer has to invest a minimum of Rs. 5 lakhs in his establishment.\n\nThe range of investment would vary from Rs. 5 lakhs to Rs. 50 lakhs depending upon the largeness <Jf the place. -\n\nDealer Apprentices are trained by Telco in its factory at Jamshedpur.\n\nTelco also trains Trade Apprentices.\n\nThe dealer also pays the apprentice stipend. If territorial restrictions are removed, there will be unequal distribution of vehicles in various territories.\n\nWhile there will be shortage in some territories, there will be largi<r supplies in others.\n\nVehicles are supplied by Telco according to territorial requirements.\n\nVarious factors are taken into consideration in assessing the requirements of territories.\n\nBy making its dealers exclusive to Telco, there cannot be said to be any prevention, distortion or restriction of competition in the territory in which dealer operates, either between manufacturers of the same type of vehicles or between dealers in these vehicles.\n\nAny manufacturer of vehicles snch as those of Telco may manufacture and sell its vehicles in a territory in which Telco's dealers operate.\n\nAny other manufacturer of vehicles 'similar to those of Talco is also free to appoint dealers of its choice in the same territory covered by Telco's dealers.\n\nThe channels for outlet for vehicles have not been blocked by the fact that the dealers appointed by Telco are exclusive to Telco nor it can be aid that Telco has by its exclusive arrangement with its dealers affected the flow of supplies of vehicles into the market. If Telco 'sold themselves in each territory it could not be said that Telc; o wa~ pursuing any restrictive trade practice. Would the position change if Telco asked their dealers not to sell Telco bus '.chassis outside the dealer's territory?\n\nJust as Telco could not complete with itself similarly dealers would not compete with one another.\n\nThe competition would be between Telco products and the pro- H ducts of the other manufacturers Premier, Hindustan and Leyland.\n\nRestrictive trade practice is based on reason embodied in Section 2 ( o) of the Act.\n\nWhen trucks are in short supply and dealers are\n\nrestrained from selling at above the maximum price they cannot sell' below the maximum price and compete with one another.\n\nDealers of the same manufacturer do not compete with one another in every case irrespective of the market conditions or the character of the product 'sold.\n\nCompetition between dealers appointed by the same manufacturer can be reduced when there is a practical possibility of such competition as for example, when the goods are in abundance.\n\nWhen ther1~ is an acute scarcity of goods and there is no possibility of dealers selling the product at less than the permis'sible price, it would bi~ irrational to talk of territorial limits restricting comp('!tition. Restriction on comp, etition postulates the existence or the possibility of competition. On the facts proved in the present case the only competi.- tion possible is. between the dealers and the manufacturer's.\n\nThe territorial restriction promotes competition between the four manufacturers in every part of India while it has no effect of 1my theoretical competition between the dealers because such competition between dealers does not and cannot exist.\n\nD The question of competition cannot be considered in vacuo or in a doctrinaire spirit.\n\nThe concept of competition is to be understood in a commercial sense.\n\nTerritorial restriction will promote competition whereas the removal of territorial restriction would reduce competition.\n\nAs a result of territorial restriction there is in each part of India open competition among the four manufacturers. [f the territorial restriction is removed there will be pockets without any compe- E tition in certain parts of India. If the dealer in Kashmir is allowed to sell anywhere in India wealty cities like Delhi, Bombay, Calcutta will buy up trucks allocated for Kashmir and the buyer in Kashmir will not be able to get the trucks.\n\nThe other three manufacturers whose trucks are not in equal demand will have Kashmir as an open field to them without competition by Telco.\n\nTherefore, competition will be reduced in Kashmir by the successful competitor being put F out of the field.\n\nThe real reason for exclusive dealership is that instead of diminishing competition between four manufacturers each dealer tries to do his best for his own trucks, bus and thus reduce keen competition among the four manufacturers. If one de>aler deals in trucks of one or more manufacturers one cannot be expected to compete with itself it is, therefore, clear that exclusive dealership promotes instead of retarding competition.\n\nClauses 1 and 3 are in the interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. These provisions do not tend to obstruct the flow of capiml or resources into the stream of production or to brin)! about manipulation of prices or conditions of delivery or to affect the flow of supplies in the market l'elating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions;\n\n\"-, (\n\nIn the present case the restriction imposed by Telco on dealei; s. iii not to sell bus and chassis outside their territories does not restrict competition for the foregoing reasons.\n\nThe other term of exclusive dealership in clauses 6:_ and 14 of the agreement between Telco and the dealers that the dealer will not sell commercial vehicles of other , manufacturers, does npt amount to a restriction in competition because other manufacturers can appoint other persons to deal in their commercial vehicles.\n\nIt is also in public interest to see that vehicles of other manufacturers are sold in the same territory by other dealers.\n\nTherefore, there will be competition between the manufacturers of different commercial vehicles and as far as exclusive dealership of Telco commercial vehicles is con-::erned, it will be in public interest and not be a restriction in competition.\n\nThe two terms of restriction on dealers, namely, sale being confined within the territory and the other being confined to dealing in only Telco vehicles are not prejudicial to public interest.\n\nThe Come mission found that exclusive nature of dealership of being confined to Telco vehicles is not prejudicial to public interest.\n\nThe territorial restriction is also in public interest and the Commission was in error in thinking that it is not so.\n\nFor the for(!going reasons the appeal is accepted.\n\nThe decision of the Commission is set aside.\n\nWe hold that the agreement in the present case is not within the vice of restrictive trade practfce and\n\nis, therefore, not registrable.\n\nWe make it clear that in a given case sale of commodities being confined to a territory may am'ount to a restrictive trade practice.\n\nIn the special features and facts and\n\nE circumstances of the exclusive dealership agreement between Telco and the dealers the territorial restriction imposd on the sellers not\n\nto sell vehicles outside their territories is not a restrictive trade practice.\n\nParties will pay and bear their own costs.\n\nP.B.R.\n\nAppeal allowed:.", "total_entities": 143, "entities": [{"text": "TATA ENGINEERING & LOCOMOTIVE CO. LTD.,. BOMBAY", "label": "PETITIONER", "start_char": 13, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "TATA ENGINEERING & LOCOMOTIVE CO. LTD., BOMBAY", "offset_not_found": false}}, {"text": "THE REGISTRAR OF THE RESTRICTIVE TRADE\n\nAGREEMENT, NEW DELHI", "label": "RESPONDENT", "start_char": 65, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "THE REGISTRAR OF THE RESTRICTIVE TRADE AGREEMENT, NEW DELHI", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 146, "end_char": 161, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 163, "end_char": 172, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 177, "end_char": 195, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Restrictive Trade Practices Act, 1969", "label": "STATUTE", "start_char": 211, "end_char": 248, "source": "regex", "metadata": {}}, {"text": "ss. 2(o) and 33", "label": "PROVISION", "start_char": 249, "end_char": 264, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act, 1969", "statute": "Restrictive Trade Practices Act, 1969"}}, {"text": "Section 2(o)", "label": "PROVISION", "start_char": 356, "end_char": 368, "source": "regex", "metadata": {"linked_statute_text": "Restrictive Trade Practices Act, 1969", "statute": "Restrictive Trade Practices Act, 1969"}}, {"text": "Restrictive Trade Practices Act, 1969", "label": "STATUTE", "start_char": 376, "end_char": 413, "source": "regex", "metadata": {}}, {"text": "Section 33", "label": "PROVISION", "start_char": 711, "end_char": 721, "source": "regex", "metadata": {"linked_statute_text": "the Restrictive Trade Practices Act, 1969", "statute": "the Restrictive Trade Practices Act, 1969"}}, {"text": "Section 37", "label": "PROVISION", "start_char": 900, "end_char": 910, "source": "regex", "metadata": {"linked_statute_text": "the Restrictive Trade Practices Act, 1969", "statute": "the Restrictive Trade Practices Act, 1969"}}, {"text": "Monopolies and Restrictive Trade Practices Commission", "label": "ORG", "start_char": 927, "end_char": 980, "source": "ner", "metadata": {"in_sentence": "Section 37 enacts that the Monopolies and Restrictive Trade Practices Commission may inquire into any restrictive trade practice, whether the agreement relating thereto had been registered under s. 35 or not."}}, {"text": "s. 35", "label": "PROVISION", "start_char": 1095, "end_char": 1100, "source": "regex", "metadata": {"linked_statute_text": "the Restrictive 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"s. 2( o)", "label": "PROVISION", "start_char": 3191, "end_char": 3199, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 3298, "end_char": 3303, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 38", "label": "PROVISION", "start_char": 3308, "end_char": 3313, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 3342, "end_char": 3347, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(o)", "label": "PROVISION", "start_char": 3619, "end_char": 3626, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 33(1)(a)", "label": "PROVISION", "start_char": 3678, "end_char": 3690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 3741, "end_char": 3745, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(1)", "label": "PROVISION", "start_char": 3836, "end_char": 3844, "source": 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different manufacturers in every part of India. ["}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 8597, "end_char": 8625, "source": "ner", "metadata": {"in_sentence": "[701 B-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "N. A. Palkhivala", "label": "OTHER_PERSON", "start_char": 8805, "end_char": 8821, "source": "ner", "metadata": {"in_sentence": "1 of 1974)\n\nN. A. Palkhivala, F. S. Nariman, Ashok H. Desai, Ravinder Narain, J. B. Dadachanji, 0."}}, {"text": "F. S. Nariman", "label": "OTHER_PERSON", "start_char": 8823, "end_char": 8836, "source": "ner", "metadata": {"in_sentence": "1 of 1974)\n\nN. A. Palkhivala, F. S. Nariman, Ashok H. Desai, Ravinder Narain, J. B. Dadachanji, 0."}}, {"text": "Ashok H. Desai", "label": "OTHER_PERSON", "start_char": 8838, "end_char": 8852, "source": "ner", "metadata": {"in_sentence": "1 of 1974)\n\nN. A. Palkhivala, F. S. Nariman, Ashok H. Desai, Ravinder Narain, J. B. 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Dadachanji", "label": "LAWYER", "start_char": 9474, "end_char": 9490, "source": "ner", "metadata": {"in_sentence": "C. Mathur, S.\n\nSwarup, Talat Ansari, S. Narain, Interveners for CIBA Geigy of\n\nIndia Ltd.\n\nAshok, M. Desai R. Narain\n\nJ. B. Dadachanji, 0.", "canonical_name": "J. B. Dadachanji"}}, {"text": "RAY", "label": "JUDGE", "start_char": 9634, "end_char": 9637, "source": "ner", "metadata": {"in_sentence": "C. Mathur,\n\nTa~1!t Ansari, S. Swarup &\n\nD. N. Mishra, Interveners for Batliboi & Co. (P) Ltd.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal is under Section 55 of the Monopolies and Restrictive."}}, {"text": "Section 55", "label": "PROVISION", "start_char": 9665, "end_char": 9675, "source": "regex", "metadata": {"statute": null}}, {"text": "Trade Practices Act, 1969", "label": "STATUTE", "start_char": 9710, "end_char": 9735, "source": "regex", "metadata": {}}, {"text": "MonopoVes and Restrictive Trade Practices Commission", "label": "ORG", "start_char": 9806, "end_char": 9858, "source": "ner", "metadata": {"in_sentence": "Trade Practices Act, 19691, (referred to as the Aci) against\n\n''~ the judgment and order of the MonopoVes and Restrictive Trade Practices Commission (referred to as the Commission) dated 25 July, 1975."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 10252, "end_char": 10261, "source": "regex", "metadata": {"linked_statute_text": "Trade Practices Act, 1969", "statute": "Trade Practices Act, 1969"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 10798, "end_char": 10808, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 37", "label": "PROVISION", "start_char": 11020, "end_char": 11030, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 35", "label": "PROVISION", "start_char": 11197, "end_char": 11207, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 11649, "end_char": 11658, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 38", "label": "PROVISION", "start_char": 13904, "end_char": 13914, "source": "regex", "metadata": {"statute": null}}, {"text": "section 38", "label": "PROVISION", "start_char": 14267, "end_char": 14277, "source": "regex", "metadata": {"statute": null}}, {"text": "Telco", "label": "PETITIONER", "start_char": 14503, "end_char": 14508, "source": "ner", "metadata": {"in_sentence": "• Telco is a public limited company and is a leading !", 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"metadata": {}}, {"text": "Sections 37 and 38", "label": "PROVISION", "start_char": 24962, "end_char": 24980, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 24994, "end_char": 25004, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 25285, "end_char": 25294, "source": "regex", "metadata": {"linked_statute_text": "Chapter VI of the Act", "statute": "Chapter VI of the Act"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 26564, "end_char": 26574, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 26752, "end_char": 26761, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 26899, "end_char": 26908, "source": 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"Section 3", "label": "PROVISION", "start_char": 27704, "end_char": 27713, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 28024, "end_char": 28033, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 28159, "end_char": 28169, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33", "label": "PROVISION", "start_char": 29154, "end_char": 29164, "source": "regex", "metadata": {"statute": null}}, {"text": "Chapter V of the Act", "label": "STATUTE", "start_char": 29525, "end_char": 29545, "source": "regex", "metadata": {}}, {"text": "Section 37", "label": "PROVISION", "start_char": 29672, "end_char": 29682, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "Section 38", "label": "PROVISION", "start_char": 29786, "end_char": 29796, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "Hindustan Rotors Ltd.", "label": "ORG", "start_char": 30846, "end_char": 30867, "source": "ner", "metadata": {"in_sentence": "At present the only manufacturers of commercial vehicles are Telco which produces Tata Vehicles, Hindustan Rotors Ltd., which produces Hindustan Vehit!es, Premier Automobiles, which produces Premier Vehicles and Ashok Leyland Ltd., which produces Leyland vehicles."}}, {"text": "Government of India", "label": "ORG", "start_char": 31282, "end_char": 31301, "source": "ner", "metadata": {"in_sentence": "The Government of India estimated during the year 1974-75 the production of 56,300 medium and heavy vehicles."}}, {"text": "Ladakh", "label": "GPE", "start_char": 32871, "end_char": 32877, "source": "ner", "metadata": {"in_sentence": "These vehicles should ply even in the remotest areas like Ladakh, Nagaland, etc."}}, {"text": "Kerala", "label": "GPE", "start_char": 37390, "end_char": 37396, "source": "ner", "metadata": {"in_sentence": "The consumer also plies trucks all over the country and expects that where-ever he goes, whether to Kerala or Assam, there should be a dealer, a service station, a workshop, trained personnel and spare parts which can attend to Telco trucks."}}, {"text": "Assam", "label": "GPE", "start_char": 37400, "end_char": 37405, "source": "ner", "metadata": {"in_sentence": "The consumer also plies trucks all over the country and expects that where-ever he goes, whether to Kerala or Assam, there should be a dealer, a service station, a workshop, trained personnel and spare parts which can attend to Telco trucks."}}, {"text": "Bombay", "label": "GPE", "start_char": 37561, "end_char": 37567, "source": "ner", "metadata": {"in_sentence": "•'\n\nUrban area centres like Bombay, Delhi and Calcutta, have a very A large demand as compared to the est of th~ country .. But at the same time Telco has to ensure sales m places hke Kashmir, Nagaland:\n\nand Tripura, where the demand is .much less."}}, {"text": "Delhi", "label": "GPE", "start_char": 37569, "end_char": 37574, "source": "ner", "metadata": {"in_sentence": "•'\n\nUrban area centres like Bombay, Delhi and Calcutta, have a very A large demand as compared to the est of th~ country .. But at the same time Telco has to ensure sales m places hke Kashmir, Nagaland:\n\nand Tripura, where the demand is .much less."}}, {"text": "Calcutta", "label": "GPE", "start_char": 37579, "end_char": 37587, "source": "ner", "metadata": {"in_sentence": "•'\n\nUrban area centres like Bombay, Delhi and Calcutta, have a very A large demand as compared to the est of th~ country .. But at the same time Telco has to ensure sales m places hke Kashmir, Nagaland:\n\nand Tripura, where the demand is .much less."}}, {"text": "Kashmir", "label": "GPE", "start_char": 37717, "end_char": 37724, "source": "ner", "metadata": {"in_sentence": "•'\n\nUrban area centres like Bombay, Delhi and Calcutta, have a very A large demand as compared to the est of th~ country .. But at the same time Telco has to ensure sales m places hke Kashmir, Nagaland:\n\nand Tripura, where the demand is .much less."}}, {"text": "New Delhi", "label": "GPE", "start_char": 39841, "end_char": 39850, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Kanpur", "label": "GPE", "start_char": 39852, "end_char": 39858, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 39860, "end_char": 39869, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Indore", "label": "GPE", "start_char": 39871, "end_char": 39877, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Bangalore", "label": "GPE", "start_char": 39887, "end_char": 39896, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Madras", "label": "GPE", "start_char": 39898, "end_char": 39904, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Vijyawada", "label": "GPE", "start_char": 39906, "end_char": 39915, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Bhubaneshwar", "label": "GPE", "start_char": 39917, "end_char": 39929, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Gauhati", "label": "GPE", "start_char": 39943, "end_char": 39950, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Jullunder", "label": "GPE", "start_char": 39952, "end_char": 39961, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "Jaipur", "label": "GPE", "start_char": 39966, "end_char": 39972, "source": "ner", "metadata": {"in_sentence": "Telco has set up 13 zonal offices throughout India at New Delhi, Kanpur, Ahmedabad, Indore, Bombay, Bangalore, Madras, Vijyawada, Bhubaneshwar, Jamshedpur, Gauhati, Jullunder and Jaipur."}}, {"text": "United Motors Pvt. Ltd.", "label": "ORG", "start_char": 43915, "end_char": 43938, "source": "ner", "metadata": {"in_sentence": "Some dealers like the United Motors Pvt."}}, {"text": "Colaba", "label": "GPE", "start_char": 43965, "end_char": 43971, "source": "ner", "metadata": {"in_sentence": "Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur."}}, {"text": "Jogeshwari", "label": "GPE", "start_char": 43986, "end_char": 43996, "source": "ner", "metadata": {"in_sentence": "Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur."}}, {"text": "Chembur", "label": "GPE", "start_char": 44001, "end_char": 44008, "source": "ner", "metadata": {"in_sentence": "Ltd., Bombay have four sets at Colaba, Wadi Bunder, Jogeshwari and Chembur."}}, {"text": "United Motors", "label": "ORG", "start_char": 44029, "end_char": 44042, "source": "ner", "metadata": {"in_sentence": "The investment of United Motors is approximately Rs."}}, {"text": "Talco", "label": "ORG", "start_char": 46461, "end_char": 46466, "source": "ner", "metadata": {"in_sentence": "Any other manufacturer of vehicles 'similar to those of Talco is also free to appoint dealers of its choice in the same territory covered by Telco's dealers."}}, {"text": "Hindustan", "label": "GPE", "start_char": 47280, "end_char": 47289, "source": "ner", "metadata": {"in_sentence": "The competition would be between Telco products and the pro- H ducts of the other manufacturers Premier, Hindustan and Leyland."}}, {"text": "Leyland", "label": "GPE", "start_char": 47294, "end_char": 47301, "source": "ner", "metadata": {"in_sentence": "The competition would be between Telco products and the pro- H ducts of the other manufacturers Premier, Hindustan and Leyland."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 47362, "end_char": 47371, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_702_709_EN", "year": 1977, "text": "KRISHNA KUMAR MEDIRATTA v.\n\nPHULCHAND AGARWALA & ORS.\n\nJanuary 21, 1977\n\n[A. N. RAY, C.J. AND M. H. BEG, J.]\n\nN{:nes & MineraJs (Regulation and Development) Act 1957, ss. 11 (2) and 19 -Mmeral C.oncesswns Ru_les, 1960; Rules 9(2), 10, 11, 13-Scope of-A bona fide application accompa111ed by an incorrectly calculated fee or a fee wlzici1 is .dificient by oversight, if made good later is valid d.nd it takes precedents under\n\ns. 11 (2) for a preferential right as among contesting applicants.\n\nThe appellant applied on 14-10-1961 for a prospecting licence for an area of 833.53 acres under rule 9(1) of the Mineral Concessions Rules, 1960. The application was in order, in all respects, except to the extent that instead of Rs. 32/-, the fees payable, a sum of Rs. 24/- only was paid.\n\nHowever, on realisation of this mistake, he paid the deficit of Rs. 8/- on 28-12-1961 and, by way of abundant caution, made a fresh application on 26-2-1962.\n\nRespondent No. 1 had applied on 2-11-1961 for a prospecting licencefor 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied.\n\nSince no orders were passed disposing of the applications of the appellant within 90 days of the making of it, the appellant filed a revision before the Central Government treating this omission on the part of the State to be tentamount to refusal of his application as provided by rule 11 (1). On 20-10-1964, the Central Government asked the State GovernmenJ to consider the application of the appellant dated 14-10-1961 within the next 9 months. The State Government, instead of considering the application dated 14-10-1961 as directed, offered thrice, on 30-1-1965, 7-7-1965 and 2-4-1970, a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed. The State Government, however, on 22-6-1965, directed the grant of a prospecting licence to respondent No. I for an area including 272.40 acres in dispute which was actually executed in his favour on\n\n30-4-1970.\n\nThe appellant's objection before the Collector against this was rejected.\n\nOn 12-4-1973, the Central Government accepted the objection relating to 272.40 acres and opined that his application dated 14-10-1961 was earlier in point of time within the meaning of s. 11 (2) of .the Mines & Minerals _(Regulation and Development) Act, 1957.\n\nAgamst this order the respondent No. 1 went to the High Court under Art. 226 of the Constitution.\n\nThe High Court quashed the orders of the Central Government, by its order dated 12-3-1974 and held the application of the appellant dted. 14-10-196.1 not having been accompanied by the correct fee was no application at all m the eye of law.\n\nAccepting the appeal by special le.ave, the Court,\n\nHELD : (I) After considering legal position and all the facts and equities of the case the Central Government correctly held, on the question of law before it that the appellant's application before the State Government was a valid one' as it had been entertained without objection even if it was not accompanied, when filed, by the correct amount of fee. [706 A, El\n\n. (2) The Central Government bad correctly relied upon an estoppel against the State Government. The deficiency in the fees having been duly accepted on behalf of the State Government, it was bound to proceed on the assumption that there was a proper application before it valid from the date. of filing i~ .. The State Government was precluded by its own deeds from denying the validity of \"the application. [706 A, El\n\n( 3) There is no patent error upon the face of the record warranting a cor• rection in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution by the High Court in the instant case. On the other hand, High Court itself committed an apparent error in holding that an application which has only to be accompanied by the fee would be considered validly filed on the date on which it was filed only if proper fees has been tendered with it when it was filed. [706 G-Hl\n\n( 4) It is not very becoming for Governmental authorities when duties laid down by statutory rules having been performed by them, to take shelter behind such technicalities for denying a citizen's right to have his application considered and decided.\n\nRule 11 ( 1) of the Rules framed was a recognition of that right so that an applicant for a licence under the Rules could approach the Central Government in case the State Government did not pass the required orders within: a reasonable time. [706 E-F]\n\n( 5) A right and reasonable procedure looks to substance rather than form of acts or transactions in order to determine their nature.\n\nThere is no rule whatsoever which says that failure to submit the correct fee at the time of the filing of the application will make the application void or invalid.\n\nRule 13 makes it clear, by differentiating between an application and the fee by which it has to be accompanied.\n\nThe fee can be refunded but the application made remains.\n\nThe filing of the applicatiOfl is one thing and compliance of some annexed duty, which is legally separable, is another, unless a sfatute or a rule provides otherwise. [707 A, C, 708 H 709 CJ\n\n( 6) It is clear from s. 19 that the Act itself provides what is void and in- D effective where that is the intention.\n\nSection 19 attaches a voidness only to a grant made without due compliance with all rules. It is nowhere said that the Act of making an application will be similarly void for breach of rules.\n\n[709 B-Cl\n\n( 7) In the instant case, in view of the provisions of s. 19 of the Act, a: prospecting licence in favour of respondent No. 1 was itself void to the extent of au area of 272.40 acres for which a licence had already been properly applied for by the appellant.\n\nUnless the applicant's application had been prQ:!erly E. refused for a valid reason, he could not be denied the benefit of s. 11 (2) of the Act. It may be that a licence cannot bei granted without making good the deficiency in fee which should accompany the application, but that does not mean that a bona fide application accompanied by an incorrectly calculated fee or a fee which is deficient by oversight could not be made at all or if made must be treated as void or of no effect wh.atsoever.\n\n[709 C-G]\n\n( 8) The use of the word \"shall\" in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory.\n\nIt is not the breach of every mandatory duty in performing a prescribed act that could make an action totally ineffective or void ab initio. The meaning of the word \"shall\" in Rule 9(2) of the Mineral Concessions Rules, 1960, was only incidentally in vol vet! here. [707 B-Cl\n\nC1v1L APPELLATE JURISDICTION: Civil Appeal No. 792 of 1975.\n\n(Appeal by special leave from the judgment and order dated the 12:h March, 1974 of the Orissa High Court in 0. J. C. No. 3,36 of 1972) .\n\nB. Sen, B. V. Desai and R. H. Dhebar, for the appellant.\n\nMrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur and A. K.\n\nSharma, for respondent No. 1.\n\nS. K. Mehta, for Girish Chandra, for respondent No. 2.\n\nGobind Das, B. Parthasarthi for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nBEG, J.\n\nThe appellant before us applied on 14th October, 1961, for a prospecting licence tor an area or li33.53 acres in the requisite form 'ti', under rule 9ll) of the Mmeral Concessrons Rules, l91i0, made under Section 13 of the Mmes and Mmerals (Kegulauon and 1Jeve10pment) Act, 1957 (heremafter referred to as the Act).\n\nThe applicauon was filled in correclly.\n\nBut a sum of Rs. 24/- only, instead of Rs. 32/-, accompanied the application. It appears that the appellant realised the mistake in calculating later and paid the deficit of Ks. 8/- on 28lh December, 1961.\n\nHy way of abundant caution, he made a fresh application also on 26th February, 1962.\n\nIn the meantime, the respondent No. 1 had applied on 2nd November, 1961, for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied.\n\nNo orders were passed disposing of the application of the appellant within 90 days of the making of it.\n\nThe appellant treated this omission to be tantamount to refusal of hls application, as provided by rule 11 (1), and preferred a revision applicatron before the Central Government under Section 30 of the Act.\n\nOn 20th October, 1964, the Central Government asked the State Government to consider the application of the appellant dated 14th October, 1961, within the next nine months.\n\nOn 13th January, 1965, the State Government offered the appellant a prospecting licence for an area of 365 acres.\n\nOn 12th February, 1965, the appellant moved the Central Government for revision 0£ the order making the offer.\n\nOn 19th March, 1965, the Central Government informed the appellant that his application was premature simce neither nine months had elapsed nor final orders had been passed by the State Government.\n\nOn 9th May, 1965, the Central Government actually rejected the revision application of the appellant presumably for reasons found in the abovementioned communication.\n\nOn 22nd June, 1965, the State Government directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres, in dispute. On 7th July, 1965, the State Government again offered the appellant the grant of a licence for 365 acres.\n\nOn 2nd January, J 967, the High Court dismissed the Writ Petition of the appellant filed against the abovementioned order of the Central Government elated 9th May, 1965, rejecting his revision application.\n\nOn 2nd April, 1970, the State Government again offered the appellant a prospecting licence for an area of 365 acres.\n\nOn 30th April, 1970, a prospecting licence was actually executed in favour of respondent No. 1 for an area which included the disputed 272.40 acres.\n\nThe appellant's objections before the Collector were rejected.\n\nOn 27th May, 1970, the appellant again filed a revision applcation before the Cenral overnment ag:inst the offer dated 2nd Apnl, 1970, for the third time. by the State Government of the smaller area of 365 acres.\n\nOn 23rd November.\n\n1970. the respondent No. 1, actually applied for a mining lease. but, on 12th April, 1973, the Central Government accepted the appellant's objection relat; ng to 272.40 acres. Hence. the resnondent No. 1 wrnt to the Hi!!h Court under Article 226 of the Constitution.\n\nThe High Court auashed the order of the Central Government by its order dated\n\n12th March, 1974, on the ground that the original application o[ the\n\n\\.-\n\nI '(\n\n...\n\n•.,._'\n\nappellant, dated 14th October, 1961, not having been accompanied by the correct fee, was no appl1cat10n at all m the eye ot iaw. nem:e, on the view taken by the nigh Court, the appellant, not navmg curn- _pl!ed with mandatory provisions, had not h1ed any applicat10n wn1ch could be accepted by the State Government.\n\nThe li1gh Court took the view that the Central Government's order dated 12th Apnl, lY73, suffers from a patent error.\n\nThe appellant ha.ving obtamed special leave to appeal, the case is now before us.\n\nIt has to be remembered that the special jurisdiction of the High Court under Article 22~ had been invoked by the respondent.\n\nThe High Court had before it a very detailed statement of reasons for the mder of the Central Government in exercise of its powers under Section 30 of the Act.\n\nWe have also been taken through these reasons contained in the letter dated 12th April, 1973, sent to the appellant.\n\nIt shows that bo'.h the parties between whom the dispute relating to 272.40 acres of land for grant of a prospecting licence had gone before the Central Government several times, and the matter was not finally decided by the State Government.\n\nEven though the State Government may have,· according to its own erroneous view disabled itself from granting a prospecting licence to the respondent in respect of disputed 272.40 acres, due to its decision to grant this area to the respondent, yet, as the letter from the Central Government points out, the prospecting licence of the respondent who was impleaded in the revidon proceedings before the Central Government and duly heard on. all questions, was due to expire on 30th April, 1972.\n\nAfter considering the legal position and all the facts and equities of the ease, the Central Government correctly held, on the question law before it, that the appellan'.'s application before the State Government was a valid one as it had been entertained without objection even if it was not accompanied, when filed, by the correct amount of fee.\n\nIn a commun; cation sent, the Central Government stated its reasons to the appellant as follows :\n\n\"The question arises whether you were indeed or can indeed be deemed to be the prior applicant for the area.\n\nIt has been seen that your application dated 14.10.1961 was not perfect in the sense that fee paid into the treasury fell short of Rs. 8/-.\n\nHowever, the State Government itself by giving a chance to you to recmy this mistake acknowledi;[ed irnplicity that it had in its hands an application otherwise valid.\n\nTherefore, the appropriate date which should be taken into consideration is 14.10.61 and not 28-12-1961, as interpreted by the State Government.\n\nThe State Government's order permittinr: you to make irood the deficit in the amount of fees oriisinally paid into the treasury has nothing to do with the submission of the aoplication which was done on 14.10,61.\n\nThe State Government conlct. if it so wished, have refused the application dated 14.10.61 as being imperfect.\n\nBut, since it did not do so and permitted the apnlication to remain under consideration, it recognised ynur right as an applicant.\n\nTherefore, the State Government cafl!lt arge that. impleaded party Phulchand Agarwal by subm1ttmg his application on 2.11.61 becomes a prior applicant\".\n\nIn .other words, the Central Government had, correctly in our opinion, rehed upon an _estoppel against the State Government.\n\nAfter giving the above-mentioned reasons, the Central Government considered it fair that the appellant should be granted a prospective licence in respect. of 272.40 acres also over and above the 365 acres already granted to him by the State Government.\n\nThe operative part of the order passed by the Central Government is :\n\n\"In the circumstances of the case, the Central Government, in exrcise of their revisional powers under Rule 55 of of the Mineral Concessions Rules, 1960, and of all other powers enabling in this behalf, hereby set aside the order of the State Government contained in their letter No. Il(E) M. 82/70-3015MG, dated 2.4.1970, and further direct the State Government to grant the overlapping of 272.40 acres to you over and above the area of 365 acres already granted to you.\"\n\nThe only question which arises before us is whether the order of the Central Government suffers from an error apparent upon the face of the record so as to furnish a ground for interference by the High Court on the purest of pure technicalities, which, as had been pointed out in the letter sent from the Central Government to the appellant, had ceased to matter.\n\nThe deficiency in the fees having been duly accepted on behalf of the State Government, it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it.\n\nIt was precluded, by its own dealings, from denying the validity of the application.\n\nIt is not very becoming for governmental authorities, when duties laid down by statutory rules have not been performed by them, to take shelter behind such technicality for denying a citizen's rights to have his application considered\n\nand decided.\n\nRule 11 ( 1) of the Rules framed was a recognition of that right so that an applicant for a licence under the rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time.\n\nThe Central Government had passed a very fair order after considering the matters hefore it.\n\nWe have been taken very laboriously through all the relevant provisions of the Act and the Rules to convince us that the High Court's view was correct that there was an error apparent upon the face of the record in the view of the Central Government which the High Court had corrected in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.\n\nWe are unable to detect such an error on the part of the Central Government.\n\nOn the other hand, we find that the High Court itself committed an error, which seems to us to be very apparent, in holding that an application which had onlv to be accompanied by the fee would be considered validly filed on Jhe date on which\n\n...\n\n',.,,.,\n\nit was made only if proper fee had been tendered with it when it was A .filed.\n\nA right and reasonable procedure looks to substance rather than form of a transaction in order to determine its nature. The statute and the rules made thereunder would have said so if the application itself was to be deemed to be void ab initio for non-compliance with a parti- .cular technical requirement if that was the intention behind them.\n\nAll that we have here is the word 'shall' used in Rule 9 (2). But, B !his Court has repeatedly held that the use of the word 'shall' in imposing a duty is. not conclusive on the question whether the duty imposed is mandatory or directory.\n\nMoreover, that question was only incideutally involved here.\n\nIt is not the breach of every mandatory duty in p_erforming a prescribed act that could make an action totally ineffective or void ab initio.\n\nThe filing of the application is one thing and completion of some annexed duty, which is legally separable, is C another unless a statute or a rule provides otherwise.\n\nRule 9 reads :\n\n\"9(2) Every such application shall be accompanied, by---\n\n(a) a fee calculated in accordance with the provisions oi\n\nSchedule II; and D\n\n(b) an income-tax clearance certificate in Form C from the Income-tax Officer concerned; and\n\n( c) a certificate of approval in Form A or if the certificate '\n\nof approval has expired, a copy of application made to the State Government for its renewal\".\n\nE It is not disputed that all the requirements of the rule, except that a properly calculated fee should have accompanied the application, were fulfilled.\n\nApparently, Rule 10 was also complied with and the application was , duly received and acknowledged.\n\nRule 10 reads as follows :\n\n\"10. Acknowledgement of application.--- F\n\n\"---\n\n(1) Where an application for the grant or renewal of a prospecting licence is delivered personally, its receipt shall be acknowledged forthwith.\n\n(2) Where such application is received by registered post, its receipt shall .be acknowledged on the same day.\n\n(3) In any other case, the receipt of such application shall be acknowledged within three. days of the receipt.\n\n( 4) The receipt of every such application shall be acknowledged in Form D.\n\nThe next rule provides :\n\n\"11. Disposal of application for the grant and renewal of pros-·\n\npecting licence.---(1) An application for the grant of a prospecting licence shall be disposed of within nine months 11-112SCl/77\n\nfrom the date of its receipt and, if it is not disposed -0f r within that pr_iod, it shall be deemed to have been refused.\n\n(2) An application for the grant or renewal of a prospecting licence shall be made at least ninety days before the expiry of the prospecting licence and shall be disposed of before the expiry of the licence and if the application is not so disposed of within that period, it shall be deemed to have been refused.\n\n(3) The State Government may, for reasons to be recorded in writing and communicated to the applicant, at the time of renewal, reduce the area applied for.\"\n\nRepeated offers of the State Government to the appellant show that 1 it acknowledged the pendency of an application before it so that it offered a reduced area to .him.\n\nAgain, the directions of the Central Government, asking the St_ate Government to consider the application and giving nine months for it implied that there was an application to consider before the State Government.\n\nThe respondent did not question the validity of the Central Government's order of 20.10.1964. It seems futile to urge now that there was no application at all of the appellant for the State Government to consider.\n\nAgain, rule 13 provides :\n\n\"13.\n\nRefund of fee.---(1) Where an applicatio11 for the grant of a prospecting licence is refused or deemed to have been refused under these rules, the fee paid by the applicant shall be refunded to the applicant.\n\n(2) Where an applicant for the grant of a prospecting licence dies before the order granting him a prospecting licence is passed, his application for the grant of a prospecting licence shall be deemed to have been rejected and , Ji the fee paid by him shall be refunded to his legal represen- ; tative. -~\n\n(3) In the case of an applicant in -respect of whom an order granting a prospecting licence is passed but who dies before the deed referred to in sub-rule ( 1) of rule 15 is executed, the order shall be deemed to have been revoked on occurrence of the death and the fee paid shall be refunded to the legal representative of the •. deceased\".\n\nThis rule also makes it clear that there is a distinction between an application and the fee which has to accompany it.\n\nThe fee c:an be refunded, but, the application made remains.\n\nThere is no rule whatsoever which rays that failure to submit the correct fee at the time of the filing of the application will make the\n\n' '\n\n~ \"-J---·\n\napplication void or invalid.\n\nSection 19 of the Act, however, says A ckarly :\n\n\"19.' Any prospecting licence or mining lease granted, renewed or acquired in contravention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect\".\n\nHence, it is clear that the Act itself provides what is void and ineffective where that is the intention.\n\nIt would have been provided at least by the Rules that mi. application not accompanied by the couect fee is void if that had been the intention behind them.\n\nSection 19 attach1s voidness only to a grant made without due compliar.ce with all rules.\n\nIt is nowhere said that the act of making an application will be similarly voi<l for a breach of rules. ·\n\nAnother submission made before us is that the grant of a prospecting licence in favour of Phulchand, not having be'e11 set aside by the Central Government, the High Court had tightly interfered.\n\nIn view of the provisions of Section 19 of the Act the prospecting licence in favour of respondent No. 1 was itself void to Jhe extent of an area of 272.40 acres for which a licence had already been properly applied\n\nfor by the appellant.\n\nUnless the appellant's application had been D properly refused, for a valid reason, he could not be denied the benefit of section 11 (2) of the Act.\n\nSection 11 (2) reads as follows\n\n\"11 (2) Subject to the provisions of sub-section (1), where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have E a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose applicat:o11 was received later.''\n\nReliance is placed on behalf of the respondent on the conditions for the grant of the licence contained in Rule 14 which does not govern the conditions for filing an application at all.\n\nIt may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application, but that does not mean that a bona fide application accompanied by an incorrectly calculated fee or a fee which is deficient by over-sight, could not be made at all, or, if made, must be treated as void or of no effect whatsoever.\n\nOn this question, the view taken by the Central Government was, in our . opinion, correct, just, and proper.\n\nOn such a view, it is not necessary to discuss any of the cases on the kind of error which could be corrected by the High Court as there was no error of any kind in the entral Government's order for the High Court to be able to correct it.\n\nOn the other h•and the error, which we consider necessary to correct, is in the High Court's order.\n\nConsequently, we set aside the judgment and order of the High Court and restore those of the Central Government.\n\nThe parties will H bear their own costs.\n\nS.R.\n\nAppeal allowed.", "total_entities": 81, "entities": [{"text": "KRISHNA KUMAR MEDIRATTA", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "KRISHNA KUMAR MEDIRATTA", "offset_not_found": false}}, {"text": "PHULCHAND AGARWALA & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "PHULCHAND AGARWALA & ORS", "offset_not_found": false}}, {"text": "January 21, 1977", "label": "DATE", "start_char": 55, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "January 21, 1977\n\n[A. N. RAY, C.J. AND M. H. BEG, J.]\n\nN{:nes & MineraJs (Regulation and Development) Act 1957, ss."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 74, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG, J.", "label": "JUDGE", "start_char": 94, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "ss. 11", "label": "PROVISION", "start_char": 167, "end_char": 173, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 426, "end_char": 431, "source": "regex", "metadata": {"statute": null}}, {"text": "Mineral Concessions Rules, 1960", "label": "STATUTE", "start_char": 607, "end_char": 638, "source": "regex", "metadata": {}}, {"text": "28-12-1961", "label": "DATE", "start_char": 861, "end_char": 871, "source": "ner", "metadata": {"in_sentence": "8/- on 28-12-1961 and, by way of abundant caution, made a fresh application on 26-2-1962."}}, {"text": "26-2-1962", "label": "DATE", "start_char": 933, "end_char": 942, "source": "ner", "metadata": {"in_sentence": "8/- on 28-12-1961 and, by way of abundant caution, made a fresh application on 26-2-1962."}}, {"text": "2-11-1961", "label": "DATE", "start_char": 977, "end_char": 986, "source": "ner", "metadata": {"in_sentence": "1 had applied on 2-11-1961 for a prospecting licencefor 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied."}}, {"text": "Central Government", "label": "ORG", "start_char": 1277, "end_char": 1295, "source": "ner", "metadata": {"in_sentence": "Since no orders were passed disposing of the applications of the appellant within 90 days of the making of it, the appellant filed a revision before the Central Government treating this omission on the part of the State to be tentamount to refusal of his application as provided by rule 11 (1)."}}, {"text": "20-10-1964", "label": "DATE", "start_char": 1422, "end_char": 1432, "source": "ner", "metadata": {"in_sentence": "On 20-10-1964, the Central Government asked the State GovernmenJ to consider the application of the appellant dated 14-10-1961 within the next 9 months."}}, {"text": "14-10-1961", "label": "DATE", "start_char": 1535, "end_char": 1545, "source": "ner", "metadata": {"in_sentence": "On 20-10-1964, the Central Government asked the State GovernmenJ to consider the application of the appellant dated 14-10-1961 within the next 9 months."}}, {"text": "30-1-1965", "label": "DATE", "start_char": 1682, "end_char": 1691, "source": "ner", "metadata": {"in_sentence": "The State Government, instead of considering the application dated 14-10-1961 as directed, offered thrice, on 30-1-1965, 7-7-1965 and 2-4-1970, a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed."}}, {"text": "7-7-1965", "label": "DATE", "start_char": 1693, "end_char": 1701, "source": "ner", "metadata": {"in_sentence": "The State Government, instead of considering the application dated 14-10-1961 as directed, offered thrice, on 30-1-1965, 7-7-1965 and 2-4-1970, a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed."}}, {"text": "2-4-1970", "label": "DATE", "start_char": 1706, "end_char": 1714, "source": "ner", "metadata": {"in_sentence": "The State Government, instead of considering the application dated 14-10-1961 as directed, offered thrice, on 30-1-1965, 7-7-1965 and 2-4-1970, a prospecting licence for an area of 365 acres which was not accepted by him and his attempts by way of revision against these orders to the Central Government and a writ petition in the High Court failed."}}, {"text": "22-6-1965", "label": "DATE", "start_char": 1956, "end_char": 1965, "source": "ner", "metadata": {"in_sentence": "The State Government, however, on 22-6-1965, directed the grant of a prospecting licence to respondent No."}}, {"text": "30-4-1970", "label": "DATE", "start_char": 2123, "end_char": 2132, "source": "ner", "metadata": {"in_sentence": "I for an area including 272.40 acres in dispute which was actually executed in his favour on\n\n30-4-1970."}}, {"text": "12-4-1973", "label": "DATE", "start_char": 2213, "end_char": 2222, "source": "ner", "metadata": {"in_sentence": "On 12-4-1973, the Central Government accepted the objection relating to 272.40 acres and opined that his application dated 14-10-1961 was earlier in point of time within the meaning of s. 11 (2) of .the Mines & Minerals _(Regulation and Development) Act, 1957."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2395, "end_char": 2400, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2540, "end_char": 2548, "source": "regex", "metadata": {"statute": null}}, {"text": "12-3-1974", "label": "DATE", "start_char": 2651, "end_char": 2660, "source": "ner", "metadata": {"in_sentence": "The High Court quashed the orders of the Central Government, by its order dated 12-3-1974 and held the application of the appellant dted."}}, {"text": "14-10-196.1", "label": "DATE", "start_char": 2709, "end_char": 2720, "source": "ner", "metadata": {"in_sentence": "14-10-196.1 not having been accompanied by the correct fee was no application at all m the eye of law."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3790, "end_char": 3798, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 5338, "end_char": 5343, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 5436, "end_char": 5446, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 19", "label": "PROVISION", "start_char": 5695, "end_char": 5700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 6023, "end_char": 6028, "source": "regex", "metadata": {"statute": null}}, {"text": "Mineral Concessions Rules, 1960", "label": "STATUTE", "start_char": 6742, "end_char": 6773, "source": "regex", "metadata": {}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 7025, "end_char": 7031, "source": "ner", "metadata": {"in_sentence": "B. Sen, B. V. Desai and R. H. Dhebar, for the appellant."}}, {"text": "B. V. Desai", "label": "LAWYER", "start_char": 7033, "end_char": 7044, "source": "ner", "metadata": {"in_sentence": "B. Sen, B. V. Desai and R. H. Dhebar, for the appellant."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 7049, "end_char": 7061, "source": "ner", "metadata": {"in_sentence": "B. Sen, B. V. Desai and R. H. Dhebar, for the appellant."}}, {"text": "S. Bhandare", "label": "LAWYER", "start_char": 7088, "end_char": 7099, "source": "ner", "metadata": {"in_sentence": "Mrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur and A. K.\n\nSharma, for respondent No."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 7101, "end_char": 7117, "source": "ner", "metadata": {"in_sentence": "Mrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur and A. K.\n\nSharma, for respondent No."}}, {"text": "A. K. Mathur", "label": "LAWYER", "start_char": 7119, "end_char": 7131, "source": "ner", "metadata": {"in_sentence": "Mrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur and A. K.\n\nSharma, for respondent No."}}, {"text": "A. K.\n\nSharma", "label": "LAWYER", "start_char": 7136, "end_char": 7149, "source": "ner", "metadata": {"in_sentence": "Mrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur and A. K.\n\nSharma, for respondent No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 7174, "end_char": 7185, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, for Girish Chandra, for respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 7191, "end_char": 7205, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, for Girish Chandra, for respondent No."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 7230, "end_char": 7240, "source": "ner", "metadata": {"in_sentence": "Gobind Das, B. Parthasarthi for respondent No."}}, {"text": "B. Parthasarthi", "label": "LAWYER", "start_char": 7242, "end_char": 7257, "source": "ner", "metadata": {"in_sentence": "Gobind Das, B. Parthasarthi for respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 7325, "end_char": 7328, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThe appellant before us applied on 14th October, 1961, for a prospecting licence tor an area or li33.53 acres in the requisite form 'ti', under rule 9ll) of the Mmeral Concessrons Rules, l91i0, made under Section 13 of the Mmes and Mmerals (Kegulauon and 1Jeve10pment) Act, 1957 (heremafter referred to as the Act)."}}, {"text": "Section 13", "label": "PROVISION", "start_char": 7539, "end_char": 7549, "source": "regex", "metadata": {"linked_statute_text": "the Mineral Concessions Rules, 1960", "statute": "the Mineral Concessions Rules, 1960"}}, {"text": "28lh December, 1961", "label": "DATE", "start_char": 7877, "end_char": 7896, "source": "ner", "metadata": {"in_sentence": "8/- on 28lh December, 1961."}}, {"text": "26th February, 1962", "label": "DATE", "start_char": 7963, "end_char": 7982, "source": "ner", "metadata": {"in_sentence": "Hy way of abundant caution, he made a fresh application also on 26th February, 1962."}}, {"text": "2nd November, 1961", "label": "DATE", "start_char": 8038, "end_char": 8056, "source": "ner", "metadata": {"in_sentence": "1 had applied on 2nd November, 1961, for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied."}}, {"text": "Section 30", "label": "PROVISION", "start_char": 8486, "end_char": 8496, "source": "regex", "metadata": {"statute": null}}, {"text": "20th October, 1964", "label": "DATE", "start_char": 8513, "end_char": 8531, "source": "ner", "metadata": {"in_sentence": "On 20th October, 1964, the Central Government asked the State Government to consider the application of the appellant dated 14th October, 1961, within the next nine months."}}, {"text": "14th October, 1961", "label": "DATE", "start_char": 8634, "end_char": 8652, "source": "ner", "metadata": {"in_sentence": "On 20th October, 1964, the Central Government asked the State Government to consider the application of the appellant dated 14th October, 1961, within the next nine months."}}, {"text": "13th January, 1965", "label": "DATE", "start_char": 8687, "end_char": 8705, "source": "ner", "metadata": {"in_sentence": "On 13th January, 1965, the State Government offered the appellant a prospecting licence for an area of 365 acres."}}, {"text": "12th February, 1965", "label": "DATE", "start_char": 8802, "end_char": 8821, "source": "ner", "metadata": {"in_sentence": "On 12th February, 1965, the appellant moved the Central Government for revision 0£ the order making the offer."}}, {"text": "19th March, 1965", "label": "DATE", "start_char": 8914, "end_char": 8930, "source": "ner", "metadata": {"in_sentence": "On 19th March, 1965, the Central Government informed the appellant that his application was premature simce neither nine months had elapsed nor final orders had been passed by the State Government."}}, {"text": "9th May, 1965", "label": "DATE", "start_char": 9113, "end_char": 9126, "source": "ner", "metadata": {"in_sentence": "On 9th May, 1965, the Central Government actually rejected the revision application of the appellant presumably for reasons found in the abovementioned communication."}}, {"text": "22nd June, 1965", "label": "DATE", "start_char": 9281, "end_char": 9296, "source": "ner", "metadata": {"in_sentence": "On 22nd June, 1965, the State Government directed the grant of a prospecting licence to respondent No."}}, {"text": "7th July, 1965", "label": "DATE", "start_char": 9434, "end_char": 9448, "source": "ner", "metadata": {"in_sentence": "On 7th July, 1965, the State Government again offered the appellant the grant of a licence for 365 acres."}}, {"text": "2nd January, J 967", "label": "DATE", "start_char": 9541, "end_char": 9559, "source": "ner", "metadata": {"in_sentence": "On 2nd January, J 967, the High Court dismissed the Writ Petition of the appellant filed against the abovementioned order of the Central Government elated 9th May, 1965, rejecting his revision application."}}, {"text": "2nd April, 1970", "label": "DATE", "start_char": 9748, "end_char": 9763, "source": "ner", "metadata": {"in_sentence": "On 2nd April, 1970, the State Government again offered the appellant a prospecting licence for an area of 365 acres."}}, {"text": "30th April, 1970", "label": "DATE", "start_char": 9866, "end_char": 9882, "source": "ner", "metadata": {"in_sentence": "On 30th April, 1970, a prospecting licence was actually executed in favour of respondent No."}}, {"text": "27th May, 1970", "label": "DATE", "start_char": 10080, "end_char": 10094, "source": "ner", "metadata": {"in_sentence": "On 27th May, 1970, the appellant again filed a revision applcation before the Cenral overnment ag:inst the offer dated 2nd Apnl, 1970, for the third time."}}, {"text": "23rd November.\n\n1970", "label": "DATE", "start_char": 10294, "end_char": 10314, "source": "ner", "metadata": {"in_sentence": "On 23rd November."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 10544, "end_char": 10555, "source": "regex", "metadata": {"statute": null}}, {"text": "12th Apnl, lY73", "label": "DATE", "start_char": 11140, "end_char": 11155, "source": "ner", "metadata": {"in_sentence": "The li1gh Court took the view that the Central Government's order dated 12th Apnl, lY73, suffers from a patent error."}}, {"text": "Article 22", "label": "PROVISION", "start_char": 11348, "end_char": 11358, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 11534, "end_char": 11544, "source": "regex", "metadata": {"statute": null}}, {"text": "12th April, 1973", "label": "DATE", "start_char": 11634, "end_char": 11650, "source": "ner", "metadata": {"in_sentence": "We have also been taken through these reasons contained in the letter dated 12th April, 1973, sent to the appellant."}}, {"text": "30th April, 1972", "label": "DATE", "start_char": 12396, "end_char": 12412, "source": "ner", "metadata": {"in_sentence": "all questions, was due to expire on 30th April, 1972."}}, {"text": "14.10.1961", "label": "DATE", "start_char": 13018, "end_char": 13028, "source": "ner", "metadata": {"in_sentence": "It has been seen that your application dated 14.10.1961 was not perfect in the sense that fee paid into the treasury fell short of Rs."}}, {"text": "14.10.61", "label": "DATE", "start_char": 13359, "end_char": 13367, "source": "ner", "metadata": {"in_sentence": "Therefore, the appropriate date which should be taken into consideration is 14.10.61 and not 28-12-1961, as interpreted by the State Government."}}, {"text": "14.10,61", "label": "DATE", "start_char": 13632, "end_char": 13640, "source": "ner", "metadata": {"in_sentence": "The State Government's order permittinr: you to make irood the deficit in the amount of fees oriisinally paid into the treasury has nothing to do with the submission of the aoplication which was done on 14.10,61."}}, {"text": "Phulchand Agarwal", "label": "RESPONDENT", "start_char": 13953, "end_char": 13970, "source": "ner", "metadata": {"in_sentence": "impleaded party Phulchand Agarwal by subm1ttmg his application on 2.11.61 becomes a prior applicant\".", "canonical_name": "PHULCHAND AGARWALA & ORS"}}, {"text": "2.11.61", "label": "DATE", "start_char": 14003, "end_char": 14010, "source": "ner", "metadata": {"in_sentence": "impleaded party Phulchand Agarwal by subm1ttmg his application on 2.11.61 becomes a prior applicant\"."}}, {"text": "Mineral Concessions Rules, 1960", "label": "STATUTE", "start_char": 14612, "end_char": 14643, "source": "regex", "metadata": {}}, {"text": "2.4.1970", "label": "DATE", "start_char": 14804, "end_char": 14812, "source": "ner", "metadata": {"in_sentence": "Il(E) M. 82/70-3015MG, dated 2.4.1970, and further direct the State Government to grant the overlapping of 272.40 acres to you over and above the area of 365 acres already granted to you.\""}}, {"text": "Article 226", "label": "PROVISION", "start_char": 16551, "end_char": 16562, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 18095, "end_char": 18106, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 21833, "end_char": 21843, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 22342, "end_char": 22352, "source": "regex", "metadata": {"statute": null}}, {"text": "Phulchand", "label": "RESPONDENT", "start_char": 22630, "end_char": 22639, "source": "ner", "metadata": {"in_sentence": "Another submission made before us is that the grant of a prospecting licence in favour of Phulchand, not having be'e11 set aside by the Central Government, the High Court had tightly interfered.", "canonical_name": "PHULCHAND AGARWALA & ORS"}}, {"text": "Section 19", "label": "PROVISION", "start_char": 22765, "end_char": 22775, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 23098, "end_char": 23108, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 23126, "end_char": 23136, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_710_714_EN", "year": 1977, "text": "STATE OF GUJARAT v.\n\nRAMESH CHANDRA MASHRUWALA\n\nJanuary 21, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM, JJ.]\n\nDisciplinary jurisdictit.m of the' High Court-The Registrar of the Small Causes c; ourt, Am.edbad ~PP?•n, te~ by the Governor, if is \"in judicial service\" and sub- 1ect to. d!fcplmary 1ur1sd1c'.wn of the High C_ou; t-;-The _qustion_ of \"appointing authority l~ not relevant zn regard to the disciplinary 1urisdictwn of the High Court-Articles 235, and 236 of the Constitution of India, Sections 9(1) (aa), 13, 14, 33 to 36 of the Presidency Small Causes Court Act 1882-Scope of.\n\nReasonable opportunity-Failure to give copies of documents demanded is contrary to the provisions of Art. 311.\n\nPursuant to the departmental enquiry conducted by the High Court and on its recommendation, the Gujarat Governor dismissed the respondent from the service of Registrar, Small Causes Court, Ahmedabad. The respondent challenged by way of a writ the said order contending : ( l) The High Court was iaot bis appointing authority and he being the member of general State service, the High Court has no authority to initiate proceedings, the appointment of the enquiry officer, framing of charges of misconduct and taking disciplinary p:roceedings etc. (2) The High Court has no authority to direct further enquiry to be made in respect of recording the statement of one Mr. Bhatt, an advocate or to consider the reports made by the enquiry officer and come to the conclusion about his guilt or to issue show cause notice of punishment. (3) The direction of the High Court that the statement of Mr. Bhatt iS recorded was passed without hearing the petitioner and this violated tho rules of natural justice. (4) The failure to give copies of certain documents demanded by the petitioner deprived him of a reasonable opportunity to defend himself and, therefore, th@ enquiry was contrary to the provisions of Art. 311 of the Constitution; and ( 5) The impugned order was passed by the Government without consulting the Public Service Commission and the same was illegal and bad in law.\n\nThe High Court held : ( l) The post of the Registrar of Small Causes Court does not fall within the expression \"judicial service\" within the meaning of Art. 235 and (2) The High Court has no disciplinary iurisdiction over the Registrar in view of the fact that th.e H; igh Court is not the \"appointing authority\".\n\nAccepting the State's appeal by certificate and remitting the case, the Court,\n\nHELD : ( l) The Registrar of the Court of .sall Causes is a rsn ohli!1g a civil judicial post inferior to the post of D1str1ct Judge and he 1s m 1ud1.c1al service. Sections 9(1), 13 14, 33 to 36 of the Presidency Small Causes Court Act, 1882 indicate in no uncertain manner that the egistrar of Small Causes Court exercises judicial powers, Inasmu7h .a~ the Reg1s.tra: S?l.all Cans~ Court exercises his judicial function, he is a 1ud1c1al officer m 1ud1cial service and comes within the scope and intent of Art. 235 and 236.\n\n[711 H, 712 G=H]\n\n(2) The High Court was in error in. C?niderig he. q!1estion of \"appointing authority\" as relevant in regard to the d1sc1plmary 1u~1s~1c~10n of the Hgh Court and also in holding that it had i; io . pwer t<;> rdr _d1sc1plmary proceedmgs; The High Court abdicated its own d1sc1plmary 1uns~17tion. The High Court is the competent authority to hold departmental enqmnes. [711 D-E, 713 A-CJ\n\nHigh Court of Punjab & Haryana etc. v. State of Haryqna and Ors. [1975]\n\n(3) SCR 365 and Shamsher Singh & Anr. v. State of Pun1ab [1975] (1) SCR 814, referred to.\n\n,_,\n\n(3) In the instant case the enquiry was contrary to the provisions of Art. 311 of the Constitution due to the failure to give copies of certain documents demanded by the Registrar, thus deprived him of a reasonable opportunity to defend himself.\n\n[713 GJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 207 of 1975.\n\nFrom the Judgment and Order dated the 19-4-74 of the Gujarat High Court in Special Civil Appln. No. 306 of 1973.\n\nS. T. Desai and Girish Chandra for the Appellants.\n\nI. N. Shroff and H. S. Parihar for Respondent.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate against the judgment and order dated 19 April 1974 of the High Court of Gujarat in Special Civil Application No. 306 of 1973.\n\nThe question for consideration in this appeal is whether the petitioner before the High Court, who was the Registrar of the Small Causes .Court, Ahmedabad was subject to the disciplinary jurisdiction\n\nof the High Court.\n\nThe Registrar was appointed on 12 September, 1969 by an order\n\n~ of the Governor of Gujarat.\n\nThe High Court said that in view of the fact that the High Court is not the appointing authority the High Court has no disciplinary jurisdiction over the Registrar.\n\nThe High Court was in error in considering that the question of appointing authority is relevant in regard to the disciplinary jurisdiction of the High Court.\n\nUnder Article 235 the control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court.\n\nThe expression 'judicial service' is defined in Article 236 to mean \"a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts 'inferior to the post of district G judge\".\n\nThese two articles 235 and 236 are relevant for the purpose of ascertaining the extent of disciplinary jurisdiction of the High Court.\n\nThe Registrar of the Court of Small Causes is a person holding a civil judicial post inferior to the Post of district judge and is 'in Judicial service.' H\n\nReference to the presidency Sm.all Causes Courts Act 1882 is necessary to find out the powers, position and duties of the Registrar\n\nA of the Small Causes Court.\n\nSection 13 of the Act states : \"There\n\nshall be appointed an officer to be called the Registrar of the Court who shall be chief ministerial officer of the Court\".\n\nThe other provisions in the Act which deal with the Powers of the Registrar are to be found in Sections 9(1) (aa), 14, 33, 34, 35 and 36, which read as follows :\n\n\"9(1) (aa). The High Court may, from time to time, by rules having the force of law empower the Registrar to hear and dispose of undefended suits and interlocutory applications or matters.\n\n14 - The Provincial Government may invest the Registrar with the powers of a.Judge under this Act for the trial of suits in which the amount or value of the subject-matter does not exceed twenty rupees.\n\nAnd subject to the orders of the Chief Judge, any Judge of the Small Cause Court may, whenever he thinks fit, trl!nsfer from his own file to the file of the Registrar any suit which the latter is competent to try.\n\n33 - Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act requires to be done by a Judge, and any act which may be done by a Commissioner appointed to examine and adjust accounts under section 394 of that Code as so applied, may be done by the Registrar of the Small Cause Court or by such other officer of that Court as that Court may, from time to time, appoint in this behalf.\n\n34 - The suits cognizable by the Registrar under section 14 shall be heard and determined by him in like manner in all respects as a Judge of the Court might hear and determine the same.\n\n35 - The Registrar may receive applications for the execution of decrees of any value passed by the Court, and may commit and discharge judgment debtors, and make any order in respect thereof which a Judge of the Court might make under this Act.\n\n36 - Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court.\"\n\nThese provisions of the Act indicate in no uncertain manner that the Registrar of a Small Causes Court exercises judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar.\n\nCounsel for the appellant is rit in his contentioi; tht . tpe Registrar, Small Causes Court, masmuch as he exercises 1ud1crnl functions, is a judicial officer in Judicial Service and comes within the scope and intent of Articles 235 and 236.\n\nThe High Court W!lS in error in holding that the High Court had A no power to order disciplinary proceedings. It is significant that the High Court abdicated its own disciplinary jurisdiction.\n\nThe independence of the judiciary has been emphasised b ythis Court in un-mistakable terms in the following two decisions :\n\n1. High Court of Punjab & Haryana etc. v. State of Haryana &\n\nOrs., reported in 1975 (3) S.C.R. 365 and B\n\n2. Shamsher Singh & Anr. v. State of Punjab, reported in 1975\n\n( 1) S.C.R.814.\n\nThe Gujarat High Court like other High Courts is competent to enquire into such disciplinary matters.\n\nIn the present appeal there were five contentions before the High Court on behalf of the Registrar.\n\nThe first contention fails in view of our conclusion that the High Court is the competent authority to hold departmental enquiry.\n\nThe second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to coKSider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar.\n\nThe third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justice.\n\nIt will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer. Bhatt is a Lawyer.\n\nHe was busy in Court.\n\nHe could not appear before the Inquiry officer on the date fixed for taking his evidence.\n\nThe High Court asked the Inquiry Officer to record the evidence of Bhatt.\n\nThe Registrar was given a copy of the statement of Bhatt after recordint; of Bhatt's evidence.\n\nThe Registrar was given an opportunity to deal with the evidence of Bhatt.\n\nIt is idle to contend that the Registrar ought to have been heard before the High Cout directild that the s_tatement of Bhatt should be recorded.\n\nThe fourth contention of the Registrar was that there was failure to give copies of documents demanded by him; therefore he did not 'have reasonable copportunity to defend himself. '{he High Court did not go into this question in view of the fact that the High Court did not consider this question.\n\nCounsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now.\n\nWe are of opinion that the mattr should be remitted to the High Court only on this question viz 'failure to give copies oE certain documents demanded by the Registrar thus depriving him of a resonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitution'.\n\nThe fifth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmental inquiry.\n\nFor the foregoing reasons the judgment of the High Court is set aside and the matter is remitted to the High Court for consideration only of the fourth question as indicated above.\n\nParties will pay and bear their own costs.\n\nS.R.\n\nAppeal allowed and case remitted. ·-\n\n'J'", "total_entities": 39, "entities": [{"text": "STATE OF GUJARAT", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "RAMESH CHANDRA MASHRUWALA", "label": "RESPONDENT", "start_char": 21, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "RAMESH CHANDRA MASHRUWALA", "offset_not_found": false}}, {"text": "January 21, 1977", "label": "DATE", "start_char": 48, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "STATE OF GUJARAT v.\n\nRAMESH CHANDRA MASHRUWALA\n\nJanuary 21, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND P. s. KAILASAM, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 67, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 84, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "P. s. KAILASAM, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Articles 235", "label": "PROVISION", "start_char": 454, "end_char": 466, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 483, "end_char": 504, "source": "regex", "metadata": {}}, {"text": "Sections 9(1)", "label": "PROVISION", "start_char": 506, "end_char": 519, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Presidency Small Causes Court Act 1882", "label": "STATUTE", "start_char": 550, "end_char": 588, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 701, "end_char": 709, "source": "regex", "metadata": {"linked_statute_text": "the Presidency Small Causes Court Act 1882", "statute": "the Presidency Small Causes Court Act 1882"}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 1381, "end_char": 1386, "source": "ner", "metadata": {"in_sentence": "2) The High Court has no authority to direct further enquiry to be made in respect of recording the statement of one Mr. Bhatt, an advocate or to consider the reports made by the enquiry officer and come to the conclusion about his guilt or to issue show cause notice of punishment. ("}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 1913, "end_char": 1921, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 235", "label": "PROVISION", "start_char": 2243, "end_char": 2251, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Sections 9(1), 13", "label": "PROVISION", "start_char": 2650, "end_char": 2667, "source": "regex", "metadata": {"statute": null}}, {"text": "Presidency Small Causes Court Act, 1882", "label": "STATUTE", "start_char": 2688, "end_char": 2727, "source": "regex", "metadata": {}}, {"text": "Art. 235 and 236", "label": "PROVISION", "start_char": 2993, "end_char": 3009, "source": "regex", "metadata": {"linked_statute_text": "the Presidency Small Causes Court Act, 1882", "statute": "the Presidency Small Causes Court Act, 1882"}}, {"text": "High Court of Punjab & Haryana etc. v. State of Haryqna and Ors. [1975]\n\n(3) SCR 365", "label": "COURT", "start_char": 3416, "end_char": 3500, "source": "ner", "metadata": {"in_sentence": "711 D-E, 713 A-CJ\n\nHigh Court of Punjab & Haryana etc."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 3655, "end_char": 3663, "source": "regex", "metadata": {"linked_statute_text": "the Presidency Small Causes Court Act, 1882", "statute": "the Presidency Small Causes Court Act, 1882"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4016, "end_char": 4027, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Girish Chandra for the Appellants."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 4032, "end_char": 4046, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Girish Chandra for the Appellants."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 4068, "end_char": 4080, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar for Respondent."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 4085, "end_char": 4098, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff and H. S. Parihar for Respondent."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4160, "end_char": 4163, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate against the judgment and order dated 19 April 1974 of the High Court of Gujarat in Special Civil Application No."}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 4259, "end_char": 4280, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate against the judgment and order dated 19 April 1974 of the High Court of Gujarat in Special Civil Application No."}}, {"text": "Article 235", "label": "PROVISION", "start_char": 4975, "end_char": 4986, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 236", "label": "PROVISION", "start_char": 5315, "end_char": 5326, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "articles 235 and 236", "label": "PROVISION", "start_char": 5510, "end_char": 5530, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Causes Courts Act 1882", "label": "STATUTE", "start_char": 5828, "end_char": 5850, "source": "regex", "metadata": {}}, {"text": "Section 13", "label": "PROVISION", "start_char": 5956, "end_char": 5966, "source": "regex", "metadata": {"linked_statute_text": "Causes Courts Act 1882", "statute": "Causes Courts Act 1882"}}, {"text": "Sections 9(1)", "label": "PROVISION", "start_char": 6215, "end_char": 6228, "source": "regex", "metadata": {"linked_statute_text": "Causes Courts Act 1882", "statute": "Causes Courts Act 1882"}}, {"text": "Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act", "label": "STATUTE", "start_char": 6897, "end_char": 6992, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 394", "label": "PROVISION", "start_char": 7120, "end_char": 7131, "source": "regex", "metadata": {"linked_statute_text": "Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act", "statute": "Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act"}}, {"text": "section 14", "label": "PROVISION", "start_char": 7365, "end_char": 7375, "source": "regex", "metadata": {"linked_statute_text": "Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act", "statute": "Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act"}}, {"text": "Judge of the Court might make under this Act", "label": "STATUTE", "start_char": 7704, "end_char": 7748, "source": "regex", "metadata": {}}, {"text": "Articles 235 and 236", "label": "PROVISION", "start_char": 8366, "end_char": 8386, "source": "regex", "metadata": {"linked_statute_text": "Judge of the Court might make under this Act", "statute": "Judge of the Court might make under this Act"}}, {"text": "High Court of Punjab & Haryana etc. v. 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{"document_id": "1977_2_715_718_EN", "year": 1977, "text": "_)-.\n\nTRA VANCORE COCHIN CHEMICALS LIMITED v.\n\nCOMMISSIONER OF INCOME-TAX, KERALA\n\nJanuary 21, 1977\n\n(H. R. KHANNA, R. S. SARKARIA AND A. C. duPTA, JJ.]\n\nThe Income-Tax Act, 1961, s. 37(1), whether construction of road a permissible deduction under.\n\nThe appellant assessee is a public limited company who spent Rs. 26,100/- for the construction of a .new road for improving transport facilities in the area where its factory is located and sought to deduct this >1mount from its total income claiming. this as revenue expenditure for the year. The claim was disallowed by the Income-tax Officer and the Appellate Assistant Commissioner.\n\nThe Appellate Tribunal held that the amount could be deducted as revenue expenditure but at the instance of the respondent referred the matter to the High Court under s. 256(1) of the Income Tax Act, 1961, where it was decided against the appellant.\n\nDismissing the arpeal, the Court,\n\nHELD : The lme of demarcation between capital expenditure and revenue expenditure has been found to be very thin. According to the test suggested in Atherton's case by Viscount Cave, L. C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business.\n\nThe expenditure incurred was, therefore. of a capital nature. 1716 F. 717 F-H & 718 DJ\n\nAtherton v. British Insulated and Helsby Cables Ltd. [1925] 10 Tax Cases 155: Ass<Vi1 Bengal Cement Co. Ltd. v. Commissioner of Income Tax, West Bengal [1955] 27 ITR 34 and Sitalpur Sugar Works Ltd. v.\n\nCommisisoner of lncome Ta; i. Bilzar and Orissa [19631 49 ITR 160, applied\n\nCommissioner of Income-tax v. Hindustan Motors Ltd. [1968] 68 ITR 301 and Lakshmiji Sugar Mills Co. (P) Ltd. v. Commissioner of Income-tax, New Delhi [1971] 82 ITR 376, distinguished.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 265 of 1972.\n\nFrom the Judgment and Order dated the 24th August, 1971 of the Kerala High Court in I.T.R.No. 25 of 1969.\n\nG. B. Pai, K. J. John for M/s Dadabhanji & Co., for the Appellant.\n\nB. B. Ahuja and R. N. Sachthey for Respondent.\n\nThe Judgment of the Court was delivered by G,\n\nGUPTA, J.-The question for decision in this case is whether the money contributed by the assessee, public limited company, for the construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expendi\n\ntura.\n\nThe assessment year in question is 1964-65, the relevant iccounting period being the financial year ended March 31,. 196~.\n\nR The assessee company is engaged in the m.anufactue of chemicals; it had been receiving and despatching ma:tenals requrred for nd produced in its factory through lorries.\n\nThe assessee along with three_\n\nother public unoertakmg \"!li.>fU<tched the Government of Kerala for laymg i1 ut:w w<tu Uvill .l>.ruiil!l<toocn LO Uuyvg<tumnua1; trus area wnt:rc mt: <tbSt:.>bet: s I<i1.:•v1y ll> buUa•e was not at tne macerial tune servea oy pucca roaus. 1t was agreed that the liovernment of Kerala would bear U1e cost of the acqu1Muon of the land and 25 per cent of the cost of construction.\n\nThe total cost to be shared by the four companies was Rs. 1,04,550/- and the assessee's share came to Rs.\n\n26,100/-.\n\nThe assessee company sought to deduct this amount from its total income clauning this as revenue expenditure for the year in question. , The lnom~-tax Officer disallowed the claim holding that the . assessee s con~1bution was capital expenditure.\n\nThe Appellate Assistant Commiss10ner took the same view.\n\nThe Appellate Tribunal, mainly relying on the decision of the Calcutta High Court in Commissioner of Incom_e-tax v. Hindustan Motors Limited,(') hel? that the asessee was entitled to deduct the amount as revenue expenditure.\n\nAt the instance of the Commissioner of Income-tax, Kerala, Ernakulam, the Tribunal referred the following question to the High Court of Kerala under section 256(1) of the Income-Tax Act, 1961 :\n\n\"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was legally justified in allowing tll1:\n\nexpenditure of Rs. 26,100/- being the respondent's contribution to government for constructing a road as a permissible deduction under sectioii 3 7 ( 1) of the Income-Tax Act, 1961.\"\n\nThe High Court held tllat tlle assessee in this case obtained an a.dvantage of an enduring nature by the construction of the road and, therefore, the amount contributed was capital expenditure.\n\nThe High Court accordingly answered the question in negative and against the assessee.\n\nIn tllis appeal, brought on a certificate under section 261 of tlle Income-Tax Act, 1961, the assessee challenges the correctness of the answer given by tlle High Court to the question.\n\nThe authorities both in this country and in England have pointed out tlle difficulties in formulating precise rules for distinguishing; capital expenditure from revenue expenditure.\n\nThe line of demarcation has been found to be very thin.\n\nCertain broad tests have however been laid down and of them the test suggested by viscount ca,'e, L.\n\nC., in Atherto~ v. British Insulated and Helsby Cables Limited( 2 ) appears to have been largely accepted !n. this country. .Ts Court in Assam Bengal Cement Company L11mted v.\n\nConuss101; er of lncome-tax, West Begnal( 3); Sitalpur Sugar Works Limited v._ Commissioner of Income-tax, Bihar and Orissa(') and a number ol other decisions has adopted the test as laid down in Atherton's case: to refer again to these often quoted lines from Viscont Caye's Judgnen! =. \"when an expenditure is made, .......... with a v1w to bmgml!; into existence an asset or an advantage for the endurmg beneht of a.\n\n•(l) (1968) 68 J.T.R. 301. q3) (1955) 27 I. T.R. 34.\n\n(2) (1925) 10 Tax Cases 155.\n\n(4) (1963) 49 I.T.R. 160 .\n\nr , __\n\nT. c. CHEMICALS v, COMM. OF I.T. (Gupta, J.) 717\n\ntJ:ade, I think that _there is very gO?d reason (in the absence of special crrcumstances leadmg to an opposite conclusion) for treatin~ su\"h an expendtture as properly attributable not to revenue but to capital\".\n\nReferring to Atherton's case and certain other authorities on the distinction between caHital expenditure and revenue expenditure and the tests to be applied, this Court in Assam Bengal Cement Company Limited v. Commissioner of Income-tax(') observed :\n\n\"If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business i_t is properly attributable to capital and is of the nature of capital expenditure.\n\nIf on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure.\n\nIf any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital of the income of the concern or whether the payment was made once and for all or was made periodically.\n\nThe aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.\n\nThe source or the manner of the payment would then be of no consequence.\n\nIt is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure.\"\n\nIn the case before us, the High Court applied viscount Cave's test and found that the expenditure made by the assessee brought into existence an advantage for the enduring benefit of the assessee's trade and accordingly held that this was capital expenditure. '--, Each case turns on its own facts.\n\nIt is not disputed here that the\n\ncorrect test has been applied.\n\nDid the money spent by the assessee on construction of the new road secure for it an enduring benefit, or was it necessary for running its business?\n\nOn the facts of the case the position seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improve- G ment of transport facilities, the assessee acquired an enduring advan- )..> tage for its business.\n\nThe High Court rightly pointed out that the decision of the Calcutta High Court in Commissioner of Income-taJG\n\nv. Hindustan Motors Ltd.( 2 ) on which the appellate tribunal relied, is clearly distinguish.able on facts; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessee's H\n\n(I) (1955) 27\n\nI.T.R. 34.\n\n(2) (1968) 68 I.T.R. 301.\n\nbusiness.\n\nMr. Pai, learned counsel for the appellant, has relied on the decision of this Court in Lakshmiji Sugar Mills Company Private Limited v. Commissioner of lncometax, New Delhi('), to contend that even the llxpenditure on the construction of roads could l:e revenue expenditure and not expenditure of a capital nature.\n\nIn Lakshmiji Sugar Mills case the assessee was a private limited company carrying on the business of manufacture and sale of sugar.\n\nUnder the provisions of the U. P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee company was obliged to contribute certain amounts for the development of roads which were originally th1e property of the government and remained so even after the improvement had been made.\n\nApart from~ the fact that in this case the expenditure incurred was under a statutory compulsion, there was no finding that the roads were newly made.\n\nOn the facts of that case this Court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee's business.\n\nLakshmiji Sugar Mills(') case is quite different on facts from the one before us and must be confiend to the peculiar facts of that case.\n\nOn the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature.\n\nThe appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.\n\nM.R.\n\nAppeal dismissed\n\n(J) (1971) 82 l.T.R. 376.", "total_entities": 33, "entities": [{"text": "TRA VANCORE COCHIN CHEMICALS LIMITED", "label": "PETITIONER", "start_char": 6, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "TRAVANCORE COCHIN CHEMICALS LIMITED", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, KERALA", "label": "RESPONDENT", "start_char": 47, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, KERALA", "offset_not_found": false}}, {"text": "January 21, 1977", "label": "DATE", "start_char": 83, "end_char": 99, "source": "ner", "metadata": {"in_sentence": "TRA VANCORE COCHIN CHEMICALS LIMITED v.\n\nCOMMISSIONER OF INCOME-TAX, KERALA\n\nJanuary 21, 1977\n\n(H. R. KHANNA, R. S. SARKARIA AND A. C. duPTA, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 102, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 116, "end_char": 130, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 158, "end_char": 178, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 37(1)", "label": "PROVISION", "start_char": 180, "end_char": 188, "source": "regex", "metadata": {"linked_statute_text": "The Income-Tax Act, 1961", "statute": "The Income-Tax Act, 1961"}}, {"text": "s. 256(1)", "label": "PROVISION", "start_char": 806, "end_char": 815, "source": "regex", "metadata": {"linked_statute_text": "The Income-Tax Act, 1961", "statute": "The Income-Tax Act, 1961"}}, {"text": "Income Tax Act, 1961", "label": "STATUTE", "start_char": 823, "end_char": 843, "source": "regex", "metadata": {}}, {"text": "Atherton", "label": "OTHER_PERSON", "start_char": 1074, "end_char": 1082, "source": "ner", "metadata": {"in_sentence": "According to the test suggested in Atherton's case by Viscount Cave, L. C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business."}}, {"text": "Viscount Cave", "label": "OTHER_PERSON", "start_char": 1093, "end_char": 1106, "source": "ner", "metadata": {"in_sentence": "According to the test suggested in Atherton's case by Viscount Cave, L. C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business.", "canonical_name": "Viscount Cave"}}, {"text": "G. B. Pai", "label": "OTHER_PERSON", "start_char": 1977, "end_char": 1986, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, K. J. John for M/s Dadabhanji & Co., for the Appellant."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 1988, "end_char": 1998, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, K. J. John for M/s Dadabhanji & Co., for the Appellant."}}, {"text": "Dadabhanji & Co.", "label": "ORG", "start_char": 2007, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, K. J. John for M/s Dadabhanji & Co., for the Appellant."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 2045, "end_char": 2056, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey for Respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2061, "end_char": 2075, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and R. N. Sachthey for Respondent."}}, {"text": "G,\n\nGUPTA", "label": "JUDGE", "start_char": 2136, "end_char": 2145, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G,\n\nGUPTA, J.-The question for decision in this case is whether the money contributed by the assessee, public limited company, for the construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expendi\n\ntura."}}, {"text": "March 31,. 196~.", "label": "DATE", "start_char": 2527, "end_char": 2543, "source": "ner", "metadata": {"in_sentence": "The assessment year in question is 1964-65, the relevant iccounting period being the financial year ended March 31,."}}, {"text": "Government of Kerala", "label": "ORG", "start_char": 2793, "end_char": 2813, "source": "ner", "metadata": {"in_sentence": "li.>fU<tched the Government of Kerala for laymg i1 ut:w w<tu Uvill .l>.ruiil!l<toocn LO Uuyvg<tumnua1; trus area wnt:rc mt: <tbSt:.>bet: s I<i1.:•v1y ll> buUa•e was not at tne macerial tune servea oy pucca roaus."}}, {"text": "Kerala", "label": "GPE", "start_char": 3027, "end_char": 3033, "source": "ner", "metadata": {"in_sentence": "1t was agreed that the liovernment of Kerala would bear U1e cost of the acqu1Muon of the land and 25 per cent of the cost of construction."}}, {"text": "Assistant Commiss10ner", "label": "PETITIONER", "start_char": 3509, "end_char": 3531, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commiss10ner took the same view."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3615, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "The Appellate Tribunal, mainly relying on the decision of the Calcutta High Court in Commissioner of Incom_e-tax v. Hindustan Motors Limited,(') hel?"}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 3901, "end_char": 3921, "source": "ner", "metadata": {"in_sentence": "At the instance of the Commissioner of Income-tax, Kerala, Ernakulam, the Tribunal referred the following question to the High Court of Kerala under section 256(1) of the Income-Tax Act, 1961 :\n\n\"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was legally justified in allowing tll1:\n\nexpenditure of Rs."}}, {"text": "section 256(1)", "label": "PROVISION", "start_char": 3928, "end_char": 3942, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 3950, "end_char": 3970, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 4259, "end_char": 4279, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 261", "label": "PROVISION", "start_char": 4614, "end_char": 4625, "source": "regex", "metadata": {"linked_statute_text": "the Income-Tax Act, 1961", "statute": "the Income-Tax Act, 1961"}}, {"text": "Income-Tax Act, 1961", "label": "STATUTE", "start_char": 4634, "end_char": 4654, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "England", "label": "GPE", "start_char": 4797, "end_char": 4804, "source": "ner", "metadata": {"in_sentence": "The authorities both in this country and in England have pointed out tlle difficulties in formulating precise rules for distinguishing; capital expenditure from revenue expenditure."}}, {"text": "Viscont Caye", "label": "OTHER_PERSON", "start_char": 5533, "end_char": 5545, "source": "ner", "metadata": {"in_sentence": ".Ts Court in Assam Bengal Cement Company L11mted v.\n\nConuss101; er of lncome-tax, West Begnal( 3); Sitalpur Sugar Works Limited v._ Commissioner of Income-tax, Bihar and Orissa(') and a number ol other decisions has adopted the test as laid down in Atherton's case: to refer again to these often quoted lines from Viscont Caye's Judgnen!", "canonical_name": "Viscount Cave"}}, {"text": "Pai", "label": "OTHER_PERSON", "start_char": 8974, "end_char": 8977, "source": "ner", "metadata": {"in_sentence": "Mr. Pai, learned counsel for the appellant, has relied on the decision of this Court in Lakshmiji Sugar Mills Company Private Limited v. Commissioner of lncometax, New Delhi('), to contend that even the llxpenditure on the construction of roads could l:e revenue expenditure and not expenditure of a capital nature."}}, {"text": "Lakshmiji Sugar Mills", "label": "ORG", "start_char": 9290, "end_char": 9311, "source": "ner", "metadata": {"in_sentence": "In Lakshmiji Sugar Mills case the assessee was a private limited company carrying on the business of manufacture and sale of sugar."}}, {"text": "Sugarcane Regulation of Supply and Purchase Act, 1953", "label": "STATUTE", "start_char": 9454, "end_char": 9507, "source": "regex", "metadata": {}}]}
{"document_id": "1977_2_719_756_EN", "year": 1977, "text": "UNION OF INDIA ETC. v.\n\nBHANUDAS KRISHNA GAWDE AND ORS. ETC.\n\nJanuary 25, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nConservation of Foreign Exchange and Prevention of Smuggling Activities (MahlJirashtra Conditions of Detention) Order 1974,-Valid)ty of-Hig/z Courtlf could examine the vir!!_s of the Act-If could entertain a petition under Art. \\· 226 of the Constitution during Emergency.\n\nThe Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 provides that secu- C rity prisoners shall not be a!lowed to supplement their diet even at their own expense, restricts the security prisoner from receiving funds from relatives and friends; restricts the number of meetings with .relativ_es and friends and medical attention is allowed only through the Medical Officer of the prison in the same way as a convicted criminal and so on.\n\nIn Writ Petitions field by the detenus under Arts. 226, and 227 of the Constitution, two High Courts have struck down the order as ulii-a vires.\n\nOn appeal it was contended by the State that the right of a person to move any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and 22 of the Constitution having been suspended by the Presidential Orders of June 27, 1975 and January 8, 1976 issued under Art. -359(1) for the period during whjch the Proclamation of Emergency was in!orce, no person had locus standi to move an application under Art. 226 for the 'issue of a writ to enforce any right to personal liberty.\n\nAllowing the appeals,\n\n(per Ray, C.J. and Jaswant Singh, J.)\n\nHELD : The Writ Petitions were not maintainable and the High Courts were clearly in error in passing the impugned directions which were not warranted by any relevant law including the law relating to preventive detention. [732 DJ\n\n1. It is well settled by the decisions of this Court that if a person was deprived of his personal liberty not ull{ler the 'Defence of India Act, 1962 or any rule or order made thereunder but in contravention thereof, his locu.r standi to move any court for the enforcement of the rights conferred by Arts. 21 and 22 was not barred. On the other hand since the Presidential Orders dated June 27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their applicability was not made dependent upon the fulfilment of any conditions precedent. They imposed a total or blanket ban on the enforcement of the fundamental rights conferred by Arts. 19, 21 and 22.\n\nThere is,_therefore, no room for doubt that these Presidential Orders unconditionally suspended the enforceability of the right conferred upon any person; including a foreigner, to move any Court for the enforcement of the rights conferred by Arts. 14, 19, 21 and\n\n22 of the Constitution. [742 E, G-H]\n\nAdditional District Magistrate, Jabalgµr v. Shiva Kant Shukla rt976] 2 S.C.C. 521-A.I.R. 1976 S.C. 1207, Makhan Singh v. State of Punjab [1964] 4 S.C.R.\n\n\nThe State of Madras [1950] S.C.R. 88-A.I.R. 1950 S.C. 27 and Kharak Singh\n\n\n2. When a person has no locus standi to move any Court to challengi: his\n\norde~ • of deti; ntion, the High Court could not issue directions disn:garding the provmoru f the Act, which is a self-contained code, and particularly ss. 5 and 12(6) which are mandatory. [745 F-Hl .\n\nMaqbool Hussain v. The State of Bombay [1953] S.C.R. 730, followed .\n\n. 3. As Articles. 19, 21 and 22 of the Constitution have been suspe:nded d]Jnng the operation of the Proclamation of Emergency, the Con:; ervation of Foreign Exch; mge and Prevention of .Smuggling Activities Act and. the orders made or passed thereunder were not open to challenge on the ground of their being inconsistent with or repugnant to Arts. 14, 19, 21 and 22 of the Constitution in view of the Presidential Orders, dated June 27, 197 Sand January 8, 1976.\n\n£742 G-Hl\n\n1n the instant case the detenus covertly sought to enforce the vary rights which were suspended. It was not open to the High Courts to strike down the impugned clauses of the Maharashtra Coricffiions of Detention Order 1974.\n\n4. The avowed object of the Act, as mainfest from its preamble, beini: the conservation and augmentation of foreign exchange and the prevention of smuggling activi1 ies secretly organised and carried on, it is essential that contai; t of the detenus with the outside world should. be reduced to the minimum.\n\nIt is for the State Governments who are in full possession of all material facts and not for the Courts who have neither the necessary knowledge of the facts nor the legal competence, to regulate conditions of detentiQn of persons, induding their maintenance, interviews or communications with others. [746 A-Cl\n\n5. When a person is detailed, he can exercise only such privileges 1rn are E conferred on him by the order of detention or by the rules governing his\n\ndetention.\n\nState of Maharashtra v. Prabhakar Pandurang Sanzgiri [1966] 1 SCR ?02- AIR 1966 S.C. 424. referred to .\n\n. • 6. The mere fact that a detenu is confined in a prison for tt, e sak(' of administrative convenience does not entitle him to be treated as a civil prisoner or to be governed by the provisions of the Prisons Act. The view of the High Courts to the contrary cannot be sustained.\n\n[746 D-E]\n\n.., J'.\n\nMaqbwl Hussain v. The State of Bombay [1953] S.C.R. 730, followed.\n\n7. The contention that the Presidential Orders did :hot bar the Court from examining the vires of the detention orders because what was souht to be en- (1 forced was not a right of personal liberty but a redress against unn:asonabl eness of the order was misconceived. The Presidential Orders imposed a blanket ban on every judicial enquiry into the validity of an order depriving a person of his personal liberty irrespective of whether it stems from the 'nitial order directing his detention or from an order laying down the conditions in. his detention. [743 A-El H Additional District Magistrate, Jabalpur v. Shil'a Kant Shukla [1!>76] 2 S.C.C. 521-A.I.R. 1976 S.C. 1207 followed.\n\n(Per Beg. J.) Concurring.\n\n......\n\nThe High Courts, acting under Art. 226. have not been given the power to A interfere in any matter involving the assertion or enforcement of a. nght to ersonal freedom by the detenus during an Emergency, when exercise of such ower by the High Courts is suspended.\n\nIn times of EP1ergency the .reme.dy for all the grievances of the detenus lies with the executive and admm1strative authorities of the State. [7 54 B-C]\n\nI. Shukla's case held that it was not the fundamental rights which were suspended by the Presidential Order under Art. 359 but the right to move any Court for the enforcement of such right conferred by Part III as may be mentioned in the Order which is suspended for the duration of the Emergency. This mean that it is the jurisdiction of Courts, to the extent fu which a petitioner seeks to enforce the fundamental rights mentioned in the Presidenial Order,\n\nwhich is suspended.\n\n[749 G-H]\n\nAdditional District Magistrate, Jaba/pur v. S/; ivakant Shukla AIR 1976 SC 1283, applied.\n\nA. K. Gopalan v. State of Madras, [1950] SCR 88, Kharak Singh v. State of U.P., [1964) 1 SCR 332, I. C. Golakanath v. State of Punjab [1967] 2 SCR 762. c\n\nHis Holiness Kesavananda Bharati Sripadagalavaru v. State, of Kera/a, [1973} Supp. SCR 1 and Haradhan Saha v. The State of West Bengal & Ors., [1975] (1) SCR 778-AIR 1974 SCR 154 referred to.\n\n2. The term \"any other purpose\" in Art. 226 means purposes similar to those D for which one of the specified writs would issue subject to certain exceptions The writ of habeas corpus is wi; ler in scope than the enfrocement of fundamental rights which are available against the State only and its officers and agents. But so far as mere directions or orders for any other purpose are concerned, the jurisdiction of High Courts does not extend to making orders against private individuals. On the other hand, if an officer is d'ii1y empowered and has passed a detention order, that order is not capable of being questioned under Art. 226. All enquiry into the conditions of exercise of such power is barred under the constitutional provisions during tlie emergency.\n\n[750 D-E, H, 751 A, C-D]\n\n3. In the instant case. the remedy sought was clearly covered by the Presi\" dential inhibition which operates against the High Courts.\n\nThe claims made by the detenus wr'? not matters which the High Court could .consider in a petition under Art. 226 of the Constitution. [751 E-Fl\n\n4. If the object of a proceeding is to enforce the fundamental right to personal freedom, a High Court's furisdiction under Art. 226 is barred during an Emergency even if it involved adjudication on the question of vires of a rule inade under enactments authorising preventive detention.\n\nIt is impossible to invalidate a rule either intended for or used for regulating the conditions of detention of a person detained under one of the Acts authorising preventive detention on the ground that the rule could only be nsed for persons in punitive detention.\n\nThe attack on the validity of such a rule cannot succeed on the ground that the object of the rule should be shown to be preventive and not punitive. [754 E-Fl\n\n5. Shukla's case indicates that Arts. 19 and 21 emllrace every aspect of an alleged infringement of the right of personal freedom by a State authority or officer purporting to act under a law.\n\nEven if the action violate~. a protection conferred by Art. 21 upon citizens as well as non-citizens in ordinary times, the result of the suspension, of the protection given by Art. 21 must necessarily be that the protection cannot be enforced during an Emergency. If that be the H effect of the Presidential declaration under Art. 359, the Court cannot go behind this declaration of law and the express letter of the law, as embodied in the Constituiton and enforce what may be covered by the right to personal freedom in ordinary times whether it parailes under the guise of natural law or 8tatutory law or constitutional law. [755 F-Hl\n\nA CRIMINAL APPELLATE JURISDICTION: Criminal Appea.J N:>. 310 & 363 of 1976.\n\n(From the Judgments and Orders dated the 1st September. 1975 of the Bombay High Court in Criminal Appln. No. 20/75) 2.nd\n\nCriminal Appeals Nos. : 348-349, 350, 195-201, 170-176, & Crl.\n\nAs. Nos. 181-182 of 1976.\n\n(Appeals by Special Leave Petitions from the Judgments and Orders dated the 14th/18th July, 1975, 9th July, 1975, 3rd April, 1976, 13th March, 1976, and 19th March, 1975, of the Bombay High Court in Criminal Appln. Nos. 794, 784/75, 833-839/76 and 614- 620/76 and 385-386/76 respectively and\n\nCriminal Appeal No. 397 of 1976.\n\n(Appeals by Special Leave from the Judgments and Orders dated the 23rd March, 1976 and 6th April, 1976 of the Karna/t.aka High Court in Writ Petitions Nos. 1454 and 2096/76 respectively) and\n\nCriminal Appeal No. 397 of 1976.\n\n(From the Judgment and Order dated the 3rd September, 1975 of the Bombay High Court in Criminal Application No. 792/75) and\n\nE CIVIL APPELLATE JURISDICTION : Civil Appal No. 573 of 1976.\n\n(Appeal by Special Leave from the Judgment and Order dated the 26th March, 1976 of the Bombay High Court in Criminal Appln. No. 31 of 1976) and\n\nSpecial Leave Petitions (Civil) Nos. 2443-2444, 2864, 2865 & \"' 3061 of 1976. \\._.->' •\n\n(From the Judgments & orders dated 8-4-76, 7-4-76, 12-4-76 & 8-4-76 of the Kamataka High Court in W.P. Nos. 2918/76, 6693/75, 1977, 2012 & 1295/76) and\n\nDy. Nos. 3002 & 3003 of 1976.\n\n(From the Judgments and Orders dated the 8-4-1976 of the Karnaitaka High Court in Writ Petitions Nos. 2355 and 1968 of 1976 respectively) and\n\nCivil Appeals Nos. 1365-1367 of 1976.\n\n(From the Judgment and Order dated the 23-3-1976 of the Karnataka High Court in Writ Petitions Nos. 2293, 2477 and 2503/76 respectively) and\n\n_ .(_\n\nOirvil Appeal No. 434 of 1976.\n\n(From the Judgment and Order dated the 1-4-1976 of the Kamataka High Court in IA No. IV in Writ Petition No. 4177 o~ 1970).\n\nNarayan Nettar for the appellants in Crl. A. 210 and CAs Nos. -I 1365-1367/76 and Crl. A. 192 and for Petitioners in SLPs (Civil) Nos.\n\nB 2443, 2444, 2864, 2865 and 3061/76 and R. 3 in CA 434/76.\n\nV. P. Raman, Addi. Sol. Genl. (In Cr!. A 310,, 348, 397, 195 and 181/76), M/s. R. N. Sachthey and M. N. Shroff with him for the Appellant in Cr!. A. 310, 348, 397, 349, 350, 363, 170-176, 181, 182 and 195-201 and C.A. 573/76 and 434/76 and for R. 3 in Crl. A. 310 and 348 and RR 2 and 4 in CrLA. 350/76.\n\nr Jail Petitioners for the Petitioners in Petn. Under Dy. No. 3002 and 3003/76.\n\nH. M. Seervai (In Crl. A. Nos. 310, 340, 349, 363 and CA 573/ 76), Ashok H. Desai, A. J, Rane. (In CA 573/76), J. R. Gagrat and B. R. Agarwala for RR. 1 and 2 in Crl. A. 310, 363 and 397 and R. 1 in Crl. As. 348-349 and RR in CA 573/76.\n\nA. K. Sen, R. H. Dhebar and B. V. Desai for R. 1 in Crl. A. No. 350/76.\n\nV. M. Tarkunde, Ashok H. Desai and V. N. Ganpule for RR in Cr!. A. 170 .to 176, 181, 182, 195-201/76.\n\nH. M. Seervai, Dr. N.\n\nGhatate, S.\n\nBalakrishnan, S.\n\nKhanduja, (Miss) Rani Jethamalani and Alta/ Ahmed for R. l in CA 434/76.\n\nThe Judgment of A. N. Ray C.J. and Jaswant Singh, J. was deli- F vered by Jaswant Singh J., Beg, J. gave a separate opinion.\n\nJASWANT SINGH, J.\n\nThes~. appeals, some of which have been preferred by certificates granted under Articles 133 and 134(1) (c) of the Constitution and Others by Special leave granted by this Cour:t under Article 136 of the Constitution, and which are directed against various final and interim judgments and orders of the High Courts of Bombay and Karnataka passed in writ petitions filed under Articles :226 and 227 of the Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as 'the Act') complaining of certain constraints imposed on them under orders made under section 5 of the Act and claiming facilities in excess of those provided in the said orders, shall be disposed of by this judgment. A gist of the orders appealed against 12-l 12SCl/77.\n\nand particulars of the pctlt10ns m which they have been passed ar~ given 111 the sub-joined table for facility of reference :.-\n\nSr .. No. oi appeal\n\nNo.\n\nI. Crl. A. No.\n\n310/1976\n\n~· Cr!. A. No. 363/1976\n\n3. Crl. A. No.\n\n397/1976\n\n1. Crl. A. No. 348/ 1976\n\nDate of the or<lcr appi:aled against\n\nFIRST BATCH OF APPEALS\n\nNo. of the application in which the order appealed against has been passed\n\nName of the High Court which passed the order\n\nName oi the dctcnu in whose favour or against whom thl! order against has been passed.\n\nSub.lance of the l'fde: appealed against\n\n----·------·-- ------- -- 4\n\nJ-9-1975 Crl. AppJka- Bombay tionNo.\n\n20/1975\n\nKrishna Bud ha\n\nGawda\n\n-Jo ..\n\nJ-9-19i) Cr!. Applka- Bombay Ghamandi'..\n\nInterim {wder dated 14-7-1975\n\nrion No. ram Kewalji Gowani ?92/ 1975\n\nSECO:-ID BATCH OF APPEALS\n\nCr/. Application No.\n\n794/1975\n\nBombay R:.imlal\n\nNaril!l£'\n\nClauses 9(iii), 10, 12(iJ •lnd (xi), 19, 20, 21, 23, 24 and 31 of the Con...<..en'ation of Foreign Exc:hansc and Prevention ot Smug!· ing Activities (Maharashtra Conditions of Dcteu- 1ion) Order, 1974 f:>tru1.:k down and directions issued requiring: the detaining authority to keep the the detenu under detention as a 'civil prisoner' within the tenns of and in all respects in conformity with the proriion~ ot the Prisons Act, 1894\n\nm<l further directing the <lcta.ining authority tu permit the detenu to maintain himself by receiving such fund~ uol !lxcccding the sum (1f R:.. 200}- per month 1.1~ he rilay desire to have iur tbat purpose from any ol his relatives or friend~. and to purchase or receive tram private sources nt proper hours food, c.:loth i ng, bedding, and other necessaries, including toiJd requisites, toilet SCJap. cigarettes and tob.ac:cu, subiect to examination and to such rules, H an:y, a:-. may be approved by the luspector O:al. as also to permit the dctenu to meet persons \\dth whoru he may desire to commu uicatc at proper times and under i; ropcr restrkt!ons.\n\n-do-\n\nDirections issued tu the detaining authority tu permit the detcnu (I) to have his food from out\n\nside at his own cxpco~, subject to routine check:\n\n(2) to have one inttn iew\n\nwith his lcial advisers f'1r two hours rn the rrc-..:m:er\n\n- ----.2----------4--------------6-------7-----·---\n\n-:!. Crl. A. No.\n\n350/1976\n\nt. CrL As. Nos.\n\n195-201/1976\n\n__ Cr!. As. Nn\".\n\n170-176/1976\n\nInterim order\n\nd:tred\n\nI). 7-l 975\n\nCrl. Application No. 784/1975\n\nBombay Yusuf Abdulla\n\nPatel\n\nTHiil!) BATCl-1 OF APPEALS\n\n3-4-!~76 Crl. Applica. !Jo111hay lions Nos.\n\n.S33-839,'197G\n\n13-3-1 1)75 Crl. Applications\n\n(\\ t 4-620/1975\n\nBu111ba.1'\n\nRa tan Singh Gokaltlas\n\nRajda & , others\n\nSm!.\n\nAl1ilya Pandui a1Jg H:angankar and others\n\nof a Customs Officer, but not within his hearjng;\n\n(3) to have one interview per mon.th with any of the Family members, which should be in accordance with and subject to subclauses (iii), (vi), (vii) and (ix) of clause 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention)\n\nOrder, 1974.\n\nDirections issued to the detaining authority ( ! ) to permit the dctcnu to have J1is food from outside at his own expense.\n\nsubject to routine check,\n\n(2) to have the Uetcnu examined at least once a week by Doctors at Sl.\n\nGeorge's Hospital and to permit the dctcnu's doctor being present at such examination. (3) to permit the dctenu to take specially prescribed medicines at his own cost. (4) not to remove the dctcnu to another juil from the Arthur Ro:.id Prison, Bombay, without giving at least 24 hours notice in writing (excluding Sundays and other holidays) tti his Attorneys,\n\n(5) to permit the <.lctcnu\n\nto lwvc one interview with his legal advisers for two hours in tilt.' presence of a Customs Officer, but not within his hearing and (6) to permit the detcnu to have interview with relatives :1s per clause 12(ii) of i'\\taha\n\nrashtra Conditions of Detcntiou Order, 1974.\n\nDiri.:...:tions issued to the detaining authority to have the dctenus taken under cu)_; tody to the site nf the meating of the Bombay Municipal Corporation and enable them to exercise their votes t the mayoral election, it tnd 11hcn it takes.place.\n\nWhile rejecting the application lor releas.c on parole <lirnctions issued the detaining in authority to have the dctcnus taken under custodv to vote at the c!cctioi1 of statutorv Committees to be hcl(! on 15-'.l-J976 at 3 P. iv\\'.\n\nat the Bombay l\\'1unicipJ/ Corporation, llomb:iiy,\n\n3. Crl As. Nos.\n\n181-182/1976\n\n4. Crl. As. Nos. 1365-67/1976\n\n5. C.A. Nos. 434/1976\n\nI. Cr!. A. No. 192/1976\n\nSUPREME COUil.T REPQRTS\n\n(1977) 2 S.C.R.\n\n3 4 5 6 7\n\n19-3-1976 Crl Applica- Bombay lions Nos.\n\nGanesh Prabhakar Pradhan and\n\nDirections issued to the detaining authority to have the detenus taken under custody to the Maharashtra Legislative Council Hall for the\n\n385-386/1976\n\n23-3-1976 W.Ps. Nos.\n\n2293. 2477, 2503/1976\n\n1-4-1976 I.A. No. IV\n\nW.P.No. 4177/1976\n\nothers\n\nKarnataka\n\nC.R.\n\nSatish and others\n\nKainataka\n\nL.K.\n\nAdvani\n\nlimited purpose of enabling them to exercise their right to vote at the elections to the statutory Committees on 30-3-1976.\n\nDirections issued to the detaining authority to have the detcnus taken not later than 11 A.M. on 24-3-1976 under police esrort to the place where the election of the President of the Town Municipal Council, Chikmaglur was to be held and after they exercised their right to vote to have them brought back under police escort to the jails in which they were then detained.\n\nDirections issued to the detaining authority to have the dctenu taken under police escort to New Delhi so as to enable him to be in Rajya Sabha on 3-4-1976 before 10.45 A.M. and to allow him to take oath of affirmation and thereafter to take his seat in the Rajya Sabha and to have him brought back under police escort to the Central Jail Bangalore on 3-4-1976 or on 4-4-1976 whichever date is convenient to the detaining authority\n\nFOURTH BATCH OF APPEALS\n\n23-3-1976 W.P. Nos. 1454/1973 Karnataka Gurunath Directions issued to the Kulkarni detaining: authority (1) to have the detenu taken under poJice escort on or before 3-4-1976 to the shops in Bellary to enable them topurchasestationary required for the examination and to the college where detenu bad to get the admission ticket to the examination. (2) to have the detenu taken on each day of the examination under police escort from the jail at Bellary to the Examinalion centre and to see that he reached such centre at least 20 minutes before the commencement of the examination and was brought back after the day•s examination was over from such centre to the jail under police escort. Directions also issued to the jail authorities to ascertain well in advance the programme of the cxami nation which the detenu had to take. ------------ ---\n\nr_ .. >\n\n2 4 6 A\n\n2. Crl. A. No. 6-4-1976 W.P.No.\n\nKarnataka\n\nK.T.\n\nDirections issued to the 210/1976 2096/1976 Shivanna detaining authority to release the detenu on parole on the afternoon of 10-4-1976. The detain- -·\n\ning authority also directed to arrange to have the detcnu either taken under police escort to his home at Novavirakare, Tiptur B\n\nTalu, starting from Bangalore on the afternoon of 10-4-1976 and •\n\nto have him brought back under poJice escort from his home to the Central :;\\\n\nJai1, Bangalore, starting from Honavinskerc on the afternoon of 12-4-1976 OR ielease the dctenu c ,. at the gate of the Central Jail, Bangalore on his executing a self bond for Rs. 6,000/- undertaking to surrender himself to the jail authorities on 12-4-1976 not later than 6 P.M. and not to take part in political activities or other activities detrimental to the security of the State during the D period he remained on parole. The police, however given the liberty to keep a watch around the detenu's house and to follow his movements outside his house during the period he continued on parole.\n\n3.. S.L.P. 8·4-1976 W.P. No.\n\nKarnataka\n\nK.A.\n\nDirections issued to the (Civil) No~ 2918/1972 Nagaraj detaining authority ( l) E 2443/76 to release the dctenu on parole, (2) to have the detcnu taken on the evening of 9-4-1976 under po1ice escort to his house and brou, ht back to the Central ail, Bangalore, under police escort on the evening of 10-4-1976; and\n\n(3) again have the detenu < taken on the evening of '\n\n14-4-1976 under police F escort to his house and \"'-\n\nbrought back under police escort to the Central Jail, Bqngalore, on the evening of 15-4-1976. The police, however, given the liberty to keep a watch around the house of the\n\n~ detenu and to fo11ow his movements during the ' period he remained on parole.\n\n4. S.L.P. (Civil) 8-4-1976 W.P.No.\n\nKarnataka P.B. Satya- Directions issued to the Ne. 2444/1976 6693/1975 narayana detaining authority to Rao release the detenu on parole on 14-4-1976 and to have him taken under police escort to his home and brought back under police escort to the jail on the afternoon of 16-4-1976.\n\nThe police, however. given the liberty to keep a watch around H the house of the detenu and to watch his move-\n\n~ ment outside his house during bis release on parole.\n\n728 SUPRE;>.fE COURT REPORTS\n\n[1977] 2 S.C.R-\n\n,\\ ----------------- 2 4 ··------------\n\n5. S.L.P. (Civil) 7-4-1976 \\V.P. No.\n\nKarntaka 1\\1. S.in- Directions issued to the No. 2864/1976 1977jJ':J76 jeeva Gatti detaining Juthority either\n\n(i) to arrange the detcnu taken under police escort to his m1tivc place, Bangalore, starting from Bangalore on 8-4-1976 and brought back under ,_ B police escort to the Central .Jail Bangalore on 14-4-1976 1 and\n\n(ii) to relcasc the dctcnu at the gate of the Central Jail, l:Jangalorc, on the morning of 8-4-1976 on his executing a self-bond of Rs. 5,000/- undertaking to surrender himself to the jail authorjties nnt '( c\n\nlater than\n\n5 P.M. on .. 15-4-1976 and not to taki: part in any political acti- .. , vity or other activity detrimental to the security\n\nof the State.\n\nThe police, however, giVCli foe liberty to keep a watch around the house houses in which the dctcnu D stayed and to follow his movements outside the house or houses during the period he remained on parole.\n\n' \"·\n\nS.L.P. (Civil) 8-4-1976 \\V.P. No.\n\nKarnataka v.s.\n\nDirections issued to the No. 2865/1976 2012/197(, Acharya detaining authority either to arrange to have the detenu taken under police escort from Central Jail, Bangalore, to Udupi E starting froin Bangalore on the morning of 13-4-1976 and to have him brought back under police escort from .Udupi statiing there frorn on the morning ot 21-4-1976 or release the detenu at the gate of the Central Jail, Bangalore, on. his Cl'.ecuting a self-bond for Rs. 5,000/- undertaking not to take part in any , F political activity or in .... any activity detrimental to the security of the - State <luriag the period he remained on parole a~ to surrender himself to lhc Jail authorities not later than\n\n6 P.M. on 21-4-1976.\n\nThe police however, given the liberty to keep a watch over the G dctenu and to follow him movcmcnL\" durinu the period he rcmaillcd on parole.\n\n7. S.L.P. (Civil) 8-4-1976 \\V.P. No.\n\nKarnataka c.v.\n\nDirections issue<l lo th~ No. 3061/1976 1295/197(· Shankar detaining authority either Rao (1) to arrange to ha, e Jadlrnv the dctenu taken too his home at Nandya under police escort starting from Bangalore on the evening H of 10-4-1976 rind to hal-c him brought back under police escort to the Central fail, Bengal starting from Nandya on the morning of 13-4-1977. ··--·----- ----· -------- -------------\n\n......\n\n'\"\"'- '\n\n!. Dy. No.\n\n3002/1976\n\n2. Dy. No.\n\n3003/1976\n\nI. C.A. No.\n\n349/1976\n\n2. C.A.No.\n\n573/1976\n\nFIFTH BATCH OF APPEALS\n\nS-4-1976 W.P. No. 2355/ 1976\n\n8-4-1976 \\V.P. No. 1968/1976\n\nKarnataka\n\nD.J.\n\nKarnataka\n\nShivaram\n\nHanumant Gururao Inamdar\n\nSIXHI llATCH OF APPEALS\n\n18-7-1975 Crl. Application No.\n\n794/1975\n\n20-3-1976 Crl. Applic'1tion No.\n\n31/1976\n\nRombay\n\nBombay\n\nRam la I\n\nNa rang\n\nPrabhudas Tribhovandas\n\nor (2) to release him . at the gate of the Central Jail, Bangalore on the evening of 10-4-1976 on his executing a self-bond for Rs. 5,000/- undertaking to surrender himself to the Jail authorities not later than 4 P. M. on 12-4-1976 and not to take part in any political activity or other activjty , detrimental to the security\n\nof the State during t11c period of bis release on parole. The police, however, given the liberty to keep a watch around the detenu's housoe and to follow his movements outside his house during the period of his release on parole.\n\nPrayer of the detcnu to allow him to be released on parole to enable him to take the final LL.B.- examination rejected .in view of the order~ made by this Court i.e. the Supreme Court in High Court \\V.P. No. 1454/1976\n\nPrayer of the detenu to allow him to be released on parole to enable him to take the Second Year LL.B. examination rejected in view of the orders made by this Court on in High Conrt W.P. No. 1454/1976.\n\nDfrections issued to the detaining authority not to remove the deteno till further order to another jail outside the State without giving at least 3 hours' notice in writing (excluding Sunday and holidays) to the detenu attorneys.\n\nDirections issued to the detaining authority to detain the (letenu in such prison where the detenn would have the benefit of the Company of other women detanus as also other facilities under the rules.\n\nClauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 & 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter\n\nreferred to as \"the Maharashtra Conditions of Detention Order, 1974\") which have been strnck down by the High Court of Bombay read as under:-·\n\n\"9.\n\n(iii) Security prisoners shall not be allowed to supplement their diet even at their own expense. Any security prisoner who wishes to supplement his diet on medical grounds, . may apply to the Commissioner or the Superintendent, ai\n\nthe case may ~· The Commissioner or the Superintendent shall get him examined by a Medical Officer attached to the place of detention who may order such modification of, or addition to, his diet, as he may consider necessary on medical grounds. , 10.\n\nSupply of funds :-(i) A security prisoner may, with the previous sanction of the detaining authority, receive from a specified relative or friend at intervals of not less than a month, funds not exceeding Rs. 30/- per month and may spend these funds or a similar sum from his own private funds on such objects and in such manner as may be pennissible under the rules, in case in which for want of funds any security prisoners are compelled to do without small amenities which their fellow prisoners enjoy, such amenities may, if considered absolutely necessary by the Commissioner .or the Superintendent be supplied . to them at Government costs. •\n\n(ii) All funds so received shall be kept by the Commissioner or the Superintendent and spent by him on behalf of the security prisoners concerned.\n\n(iii) Amounts in excess of those prescribed in subclause (i) may be received by the Commissioner or the E Superintendent on behaJf of security prisoners, but they shall not be spent in any month beyond the limits laid down in the said sub-clause.\n\n12.\n\n(ii) The number of interviews which a security prisoner may be permitted to have shall not ordinarily exceed one per month.\n\n(xi) In addition to the interviews permissible under the preceding provisions of this clause, a security prisoner may, with the permission of the detaining authority, be granted not more than two special interviews, for the settlement of his business or professional affairs, such interviews shall ordinarily take place within a period not exceeding two months from the date of detention of the security prisoner concerned and shall be conducted in accordance with the provisions of this clause as regards place, duration and conditions of the interview, and the proceedings shall be strictly confined to the objects for which the interview is granted.\n\n19.\n\nMedical attendance :-(i) The Superintendent of the Hospital or the Civil Surgeon, as the case may be, shall depute a medical officer to visit each security prisoner detained\n\nin a police lock-up and repo~. of his P.hysical condition. Th~ said Medical Officer shall visit the pnsoner at least o_nce a week and more often if the Superintendent of the Hospital or the Civil Surgeon or the Commissione~ as th~ ase may be thinks fit, and submit the report on his condition to the Commissioner or the detaining authority, after the first day of each month and at any other time he considers necessary.\n\n(ii) Security prisoner detained in a jail or sub-jail sall in the event of iJ.lness, be treated in the same way as convicted criminal prisoner or treated under the rules tnade under the Prisons Act, 1894.\n\n20.\n\nToilet :-(i) Every security prisoner shall . be supplied with neam or babul stick at Government expense.\n\n(ii) Every security prisoner shall be supplied with one cake of jail made toilet soap per month for bathing at Government expense. The weight of such cake shall be 113 grams approximately and if jail made soap is not available in any medium quality, toilet soap manufactured in India : and available locally shall be supplied.\n\n• 21.\n\nService of barbers etc. :-(i) A security prisoner shall not be permitted to have shaving equipment of his own.\n\n(ii) Every security prisoner shall be allowed to have the services of the jail barber once a week.\n\n23.\n\nSmoking and tobacco:-Except cigarettes or bidies and chewing tobacco, which are available at the jail canteen, no other facilitie11 to smoke or chew tobacco shall be permitted.\n\n24.\n\nGames :--Security prisoners shall not be permitted to play indoor game~ like cards or to play chess, draughts and carrom.\n\n31.\n\nPower to withhold any concessions or facilities :-The State Government may, by general or special order, withhold any of the concessions or facilities provided by or under any of the provisions of this order in respect of any security prisoner or class of security prisoner, and for such period or periods, as the State Government may; from time to time specify.\n\nAppearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the\n\ndetenu~ to receive or , Purchase toilet requisites, toilet soap and to consult pnva'.e .doctors lil case of enuine necessity if an application is made to 1t m that behalf, submitted that the right of any person to\n\n--~- . \"\n\nmove any court for tbe enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of tbc Constitution having been suspended by virtue of the Presidential Orders dated June 27, 1975 and January 8, 1976 issued under clause (1) of Article 359 of the Constitution (which arc absolute in tenns) for the period during which the proclamation of emergency made on June 25, 1975 under clause\n\n(1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Article 226 or Article 227 of the Constitution for issue of a writ, order or direction to enforce any right to personal liberty. He has further urged that since it is for the appropriate Government to specify the place of a detenu's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others with a view to prevent his contact with the outside work! and since what was sought to be enforced in the instant cases by mea, ns of the applications filed by or on behalf of t11e dctenus under Article 226 and 227 of ilie Constitution in the aforesaid High Courts was noiliing but various facts of personal liberty under Articles 19, 21 and 22 of the Constitution, the applications were not maintainable and the High Courts were not competent to deal with them and to either strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 197 4 or to issue the aforesaid directions to the detaining authorities.\n\nMr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized :\n\n( 1) that preventive detention docs not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;\n\n( 2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration;\n\n( 3) iliat the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency ancl the exercise of power under section 5. of the Act must have a reasonable nexus with the purpose for which the power is conferred;\n\n(4) that if according to the majority judgment in Additional District Magistrate, Jabalpur v. Shiva Kant Shukla( 1) even habeas corpus could issue in cases where the order is not duly authenticated then the conditions of detention can certainly be scrutinized and relief can be granted if those conditions re found to be iJ.legal or ultra vires;\n\n(J) [1976] 2 S.C.C. 521 'c'i\\.l.R. 1976 S.C. 1207.~[1976] Supp. S.C.R. 172.\n\nI \"-,\n\n,....\n\n• ).. .,.__/\n\n: UNION v. BIIANUDAS K. GAWDE (Jaswant Singh, /.) 733\n\n(5) that the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974, being ultra vires and. violative of the principles of reasonableness and legality have right- , ly have been struck down by the High Court of Bombay;\n\n(6) that a curtain cannot be drawn round the dctcnu and\n\nwhile he can be cut o!I from undesirable contacts, he cannot be cut o!I from unobjectionable contacts;\n\n(7) that if the place of detention mentioned in a detention order is a prison, then the detenu would be governed by the Prisons Act but not if the detcnu is lodged elsewhere;\n\n(8) that the dctenus' grievances are not 'echoes' of Article 19 of the Constitution but are .the echoes of the 'totality' or law;\n\n(9) that it is not right to say that what is not contained in\n\nArticle 19 of the Constitution is contained in Article 21 of the Constitution as this submission ignores Articles 15, 25 and 26 of the Constitution which arc applicable even to non-citizens .\n\nThe learned Additional Solicitor General has, in his rejoinder, contended that while total rele<1sc is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27th June, 1975 and January 8, 1976 issued under Article 359(1) of the Constitution which are unconditional even conditions of detention cannot be enforced by moving a court during the period of emergency and that the contention based upon the principles of legality and reasonables and doctrine of ultra vire$ is misconceived.\n\nThe Additional Solicitor General has further submitted that legality has to be understood as meaning the authority of 1aw and it so understood, a person detained in accordance with the conditions framed under section 5 of the Act cannot complain that the conditions are illegal or ultra vires, broader challenges based on fundamental rights. not being available; that the principle of reasonableness and the doctrine of ultra 1ires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague and indeterminate philosophical theories like the totality of l:iw;. that as the line of demarcation between preventive and punitive detention which is easily perceivable at the. stage of detention becomes progressively elusive and hazy when one comes to conditions of detention .. there is little scope for generalisation; that curtain has to be drawn round a detcnn to ensure effectiveness of detention which cannot be sacrificed in the interest of sccnrity of the State; that the observations made by the majority in Shivakant Shukla's case (supra) regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious cases where the Executive\n\nitself could not and would not seek to defend a detention order and can be of no assistance in the present cases where the detenus seek to\n\n}l:.\n\nenforce a right to do something or to get something which is not conferred on and given to them by law; that any right to personal liberty or any facet oI' aspect thereof has to be found in some constitutional provision to be enforced in normal times and ex-hypothesi to become unenforceable during an emergency and reference to Articles 15, 25 and 26 of the Constitution completely ignores the fact that these rights postulate a free citizen and cannot be enforced independently of Article 21 or Article 19 of the Constitution and in any case, the rights claimed in the present cases have no relation to those Articles.\n\nWithout prejudice to the aforementioned contentions advanced by him, the learned Additional Solicitor General has further submitted\n\nthat it is only where there are specific provisions in the rules framed under section 5 of the Act that those provisions being conditions of detentioll' can be enforced when still available to an individual detenu; that the provisions of Maharashtra Conditions of Detention Order, 197 4 have to be examined and scrutinized to see if the facilities claimed by the detenus are excluded by implication, e.g. where a provision for a particular number of interviews is made, it necessarily implies a prohibition against having more interviews; that the question whether a particular act which is not specifically prohibited should be pennitted or not has to be decided by keeping in view the effectiveness of detention; that allowing a detenu to go and vote at a corporate election or to take part in legislative proceedings is destructive of the purpose of detention and in any event approach must be made to the Executive to exercise its rights of parole or relaxation which is implicit in sections 12 and 5 of the Act as for instance if the release is necessitated by exigencies like performance of obsequieal ceremonies or sharadh of a kith and kin, but an order directing the detenu to be taken under police guard to the place where obsequies of a dead relation are to be performed cannot be made by a court as it tantamounts to enforcing his personal liberty; that while humane considerations are generally borne in mind by the authorities having the custody of the detenus and appropriate Government, they cannot furnish reliable basis for judicial relief; that the aforesaid directions of the Bombay High Court equating detenus with 'civil prisoners' amenable to the Prisons Act,\n\n1894, does not only amount to a substitution or re-enactment of section 5 of the Act i.e. of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4 but is also opposed to the definition of the 'prisoner' as contained in the Bombay Jail Manual which has not been amended so as to include persons directed to be detained under any Central or other Act providing for detention; that the mere fact that a person is detained for purposes of administrative convenience in a jail does not mean that he is a civil prisoner or that the Prisons Act applies to him; and that the necessity of having provisions in the conditions of detention orders enabling a detenu to consult private doctors in the presence of the official doctors in case of genuine necessity or to supplement his diet on medical grounds or to indulge in hannless pastimes like chess or carrom or to appear in examinations are matters for which the appropriate Government should be approached.\n\n' _ ..\n\nUNlON v. BHANUDAS K. GAWDE (Jaswant Singh, !.) 735\n\nWe have given our anxious consideration to the submission made A by counsel for the parties. In our judgment, the vital. question of fundamental importance that requires to be determined at the threshold in the instant cases is whether in view of the orders dated June 27, 1975 and January 8, 1976 issued by the President under clause (1) of Article 359 of the Constitution, the aforesaid petitions under Articles\n\nL. ·. 226 and 227 of the Constitution were maintainable.\n\nFor a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presidential Orders dated November 3, 1962, December 3, 1971, November 16, 1974, June 25, 1975, June 27, 1975 and January 8, 197 6.\n\nThe aforesaid Articles of the Constitution are in\n\nthese terms :- C\n\n\"Article 352. ( 1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggresion or internal disturbance, he may, by Proclamation make a declaration to that effect.\n\n(2) A Proclamation issued under clause (1)-\n\n(a) may be revoked by subsequent Proclamation;\n\n(h) shall be laid before each House of Parliament;\n\n( c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been E approved by resolutions of both Houses of Parliament;\n\nProvided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of People.\n\n( 3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President\n\nis satisfied that there is imminent danger thereof.\n\n---{.., l-,_\n\n.. - --- --~\n\n* ··· ( 4) The power conferred on the President by this article shall include the power to issue different Proclamations\n\non different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturba;; lce whether or not there is a Proclamation already issued by the.\n\nPresident under clause ( 1), and such Proclamation is in operation.\n\n(5) Notwithstanding anything in this Constitution,\n\n(a) the satisfaction of the President mentioned in clause (I) and clause (3) shall be final and conclusive and shall not be questioned in any court on any ground;\n\n(b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of-\n\n( i) a declaration made by Proclamation by the President to the effect stated in clause (1); or\n\n(ii) the continued operation of such Proclamation.\"\n\n\"Article 353.\n\nWhile a Proclamation of Emergency 1s in •)peration then-\n\n( a) notwithstanding anything in this Constitution, the £ executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;\n\n(b) the power of Parliament to make laws with respect t0\n\nany matter shaU include power to make laws conferring powers and imposing duties, or authorising the Conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List.\"\n\n\"Article 358. While a Proclamation of Emergency is 111 operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be clone before the law so ceases to have effect.\"\n\n,: .. :• Inserted retrospectively by section 5 of the Constitution\n\n(Thirty-eighth Amendment) Act, 1975.\n\nUNlON \\I. BHANUDAS K. GAWDE (Jaswant Singh, J.) 7 37\n\n\"Article 359.\n\n(1) Where a Proclamation of Emergency is in operation, the President may by order declare that. the right to move any court for the enforcement .of such. of the rights conferred by Part lll as may be ment10ned m the order and all proceedings pending in any . court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in , force or for such shorter period as may be specified in the order.\n\n''' * (I A) While an order made under clause ( 1) mentioning any of the rights confeffed by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of. the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\n\n(2) An order made as aforesaid may extend to the\n\nwhole or any part of the territory of India.\n\n( 3) Every order made under clause. ( l ) shall; as soon as may be after it is made, be laid before each House of Parliament.\"\n\nIt is hardly necessary to emphasize that the provisions of the Articles reproduced above arc designed to arm the State with. special powers to meet extraordinary sitw:ttions created in times of grave national emergencies due to war, external aggression and internal disturbance when the security of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp. 717, 718 :-\n\n\"It has always been recognized that times of grave national emergency demand the grant of special powers to the Executive. At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament.\"\n\nIt is, 11owever, necessary to state that there is an appreciable -difference between Articles 358 and 359(1) of the Constitution.\n\nWhereas simultaneously with the declaration of emergency under Article 352, Article 358 by its own force removes the restrictions on the power of the Legislature to make laws inconsistent with Article 19 of the Constitution as also on the power of the Executive to take ··--------- Inserted retrospectively by section 7 of the Constitntion (Thirty-eighth Amendment) Act, 1975.\n\n--:~-\n\nactions which may be repugnant to Article 19 of the Constitution so long as the proclamation of emergency continues to operate but does not suspend any fundamental right which was available to a citizen under Article 19 of the Constitution prior to the promulgation of emergency, Article 359(1) empowers the President to suspend the right of an individual to move any court for enforcement of such of the rights conferred by Part III of the Constitution as may be specified by him (the President) in his order. In other words, while Article 358 proporio vigore suspends the fundamental rights guaranteed by Article 19 of the Constitution thus enabling the State during the period the proclamation of emergency is in operation to make laws in violation of Article 19 of the Constitution and to take Executive action under those laws despite the fact that those laws constitute an infringement of the rights conferred by Article 19, Article 359(1) of the Constitution does not suspend any fundamental right of its own force but authorises the President to deprive an individual of his right to approach any Court for enforcement of any or all of the rights conferred by Part III of the Constitution. In Mohd. Y aqub etc. v.\n\nThe State of Jammu & Kashmir(1), a Constitution Bench of this Court consisting of seven Judges inter alia pointed out that there is a distinction between Articles 358 and 359(1) of the Constitution.\n\nWhereas Article 358 by its own force suspends the fundamental rights guaranteed by Article 19, Article 359(1) of the Constitution has the effect of suspending the enforcement of specified fundamental rights so that these concept cannot be used to test the legality of an Executive action.\n\nReference in this connection may also usefully be made to a passage in Shivakant Shukla's case (supra) where my Lord the Chief Justice who headed the majority opinion while pointing out the difference between Articles 358 and 359 of the Constitution observed :-\n\n\"The vital distinction between Article 358 and Article 359 is that Art. 358 suspends the rights only under Article 19 to the extent that the legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental right.\n\nWhile a Proclamation of Emergency is in operation the Presidential Order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359 ( 1) also suspends any pending proceedings for the enforcement of such fundamental right or rights.\n\nThe purpose and object of Article 359- ( l) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359 (1) does not, Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only.\n\n(l) [(1968] 2 S.C.R. 227.\n\nA person can enforce a fundamental ri&ht both' in te case of law being made in violation of that nght and also 1f 1he Executive acts in non-compliance with valid laws or acts without the authority of law. It cannot be said that the scope of Article 359 ( 1) is only to restrict the application of the Article to the Legislative field and not to the acts of the Executive. The reason is that any enforcement of the fundamental rights mentioned in the Presidential Order is barred and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential Order. The effect of the Presidential Order suspending the enforcement of fundamental right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right.\" Thus the foregoing discussion makes two things perfectly clear- ( I) that Article 359(1) (which makes no distinction between the threat to the security of India by war or external aggression or internal disturbance) is wider in scope than Article 358 and (2) that it is not open to any one either to challenge the validity of any law or any Executive action on the ground of violation of a fundamental right specified in the Presidential Order promulgated under Article 359 (I) of the Constitution.\n\nIt would be apposite at this stage to mention that in England in Liversidge v. Anderson( 1) and Greene v. Secretary of State for Home Affairs(2) and in India in Sree Mohan Chowdhury v.\n\nThe Chief Co111111issioner, Union Territory of Tripura(\") and Makhan Singh v. State of Punjab(') the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived.\n\nJn the Liversidge's case (supra) the following memorable observations made by the House of Lords in the King v. Halliday, Ex parte Zadig(5) were referred to. and relied upon :-\n\n\"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment namely, national success in the war or escape from national plunder or enslavement. Liberty is itself the gift of the law and may by the law be forfeited or abridged.\"\n\nHaving noticed the amplitude of the provisions incorporated in our Constitution by its founding fathers in relation to the threat posed by three types of grave emergencies on the basis of the experience gained in England and United States of America and their effect, Jct u~ now turn to the various Presidential Orders and notice their effect.\n\n(I) [1942] A.C. 206.\n\n(2) [ 1942] A. C. 284.\n\n\n(4) [19641 4 S.C.R. 797=A.LR. 1964 S.C. 381.\n\n(5) [1917) A.C. 260.\n\n13-I 12SCI;77.\n\nPresidential Order dated November 3, 1962 issued under clause\n\n(1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows:-\n\n\"New Delhi, the 3rd November, 1962\n\nG.S.R. 1464-In exercise of the powers conferred by clause ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or any rule or order made thereunder.\"\n\nBe it noted that addition of Article 14 was made in the above Presidential Order of November 3, 1962 by the Presidential Order dated November 11, 1962 and the aforesaid emergency declared on October 26, 1962 was revoked vide Presidential Order dated January\n\n10, 1968 issued under Article 352(2) (a) of the Constitution.\n\nProclamation of emergency issued by the President of India under Article 352(1) of the Constitution on December 3, 1971, consequent upon the Pakistani aggression reads as under :-\n\n\"In exercise of the powers conferred by clause ( 1) of Article 352 of the Constitution, I, V. V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.\"\n\nPresidential Order dated November 16, 1974 issued under clause\n\n(l) of Article 359 of the Constitution is in these terms :-\n\n\"In exercise of the powers conferred by clause ( 1) of Article 359 of the Constitution, the President hereby declares that:-\n\n(a) the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1) ( c) of the Maintenance of Internal Security Act, 1971 as amended by Ordinance 11 of 1974 for the enforcement of the rights conferred by Article 14, Article21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution, and\n\n(b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said section 3 ( 1) ( c) shall remain suspended for a period of six months from the\n\nUNION v. BHANUDAS K. GAWDE (laswant Singh, J.) 741\n\ndate of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution the 3rd December, 1971, is in forc11, whichever period expires earliec\n\n(2) This order shall extend to the whole of the tenitory of India.\"\n\nOn June 20, 1975, the President of india amended the above . order by substituting \"twelve months\" for \"six months\" in the order.\n\nProclamation of Emergency issued by the President of India on June 25, 1975 is to the following effect :-\n\n\"PROCLAMATION OF EMERGENCY.\n\nIn ~.xercise of the powers conferred by clause ( 1) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is 1threate11ded by internal disturbances.\n\nNew Delhi Sd/ F.A. Ahmed\n\nthe 25th June, 1975 President.\"\n\nPresidential Order dated June 27, 1975 promulgated under clause\n\n(1) of Article 359 of the Constitution runs thus :-\n\n\"In excrise of the power conferred by claus'e ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementicmed rights shall remain suspended for the period during which the Proclamations of Emergency made under clause ( 1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force.\n\nThis order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.\n\nThis order shall be in addition to and not in derogation of any order made before the date of this order under G clause (1) of 'Article 359 of the Constitution.\"\n\nOn June 29, 1975, another order was issued by the President whereby the words \"except the State of Jammu and Kashmir\" in the order dated June 27, 1975. were omitted. . On September 25, 1975, another Presidential Order was issued as a result ad' which the last paragraph in the Presidential Order dated June 27, 1975 was omitted.\n\nOn January 8, 1976, the President issued yet another order under Article 359(1) of the Constitution declaring that the right to move\n\n. . ~-- _..~•\n\nany court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those r!ghts shall remain suspended during the operation of the proclainatlons of emergency dated December 3, 1971 and June 25, 1975.\n\nThe diffocence between the Presidential Order dated June 27, 1975 which was supplemented by the Presidential Order dated January 8, 1976 and the earlier Presitlential Orders barring the right of a person to move any court for enforcement of certain fundamental rights conferred by Part III of the Constitution may now be noticed. While the Presidential Order dated June 27, 1975, which, as already stated, was supplemented by the Presidential Order dated January 8, 1976 was absolute and unconditional in terms, the earlier Presidential Orders alluded to above were conditional and limited in scope.\n\nApart from the fact that the Presidential Order dated November 3, 1962 did not make any mention of the pending proceedings, it was, as pointed out by this Court in State of Maharashtra v. Prabhakar Pa11dura11g Sanzg'ri(') Dr. Ram Manohar Lohia v. State of Bihar(2) Mak/um Singh v.\n\nState of Punjab (supra) and by the majority in A.D.M. Juba/pur v.\n\nShivakant Shukla (supra), hedged by a condition inasmuch as it declared that the right of any person to move any court for the enforcem\\:nt of rights conferred by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (I) of Article 352 thereof on October 26, 1962 is in force if such a person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) (which was later on replaced by the Defence of India Act, 1962) or any rule or order made thereunder.\" Accordingly, if a person was deprived of his personal liberty not under the Defence of India Act or any rule or order made thereunder but in contravention thereof, his locus standi to move any court for the enforcement of his rights conferred by Articles 21 and 22 of the Constitution was not barred.\n\nMore or less, similar was the pattern and effect of the Presidential Order dated November 16, 1974.\n\nThe position with respect to the Presidential Orders dated June 27, 1975 and January 8, 1976 is, however, quite different.\n\nThese orders are not circumscribed by any limitation and their applicability is not made dependent upon the fulfilment of any condition precedent.\n\nThey impose a total or blanket ban on the enforcement inter alia of the fundamental rights conferred by Articles 19, 21 and 22 of the Constitution which comprise all varieties or aspects of freedom of person compendiously described as personal liberty. (See A. K. Gopalan v: The State of Madras('), K!wrak Singh\n\nv. State of U.P. (2) and A. D. M.\n\nJaba/pur v.\n\nShivakw1t Shukla\n\n(supra) . Thus there is no room for doubt that the Presidential Orders dated June 27, 1975, and January 8, 1976, unconditionally suspend the enforceability of the right conferred upon any person including a foreigner to move any court for the enforcement of the rights enshrined in Articles 14, 19, 21 and 22 of the Constitution.\n\n(I) [19661 I S.C.R. 702=A.I.R. 1966 S.C .. 1924.\n\n(2) (1966] I S.C.R. 709.=A.T.R. 1966 S.C. 540.\n\n(3) (1950] s.c.R. 88.=A.T.R. 1950 s.c. 27.\n\n(4) [1964) I S.C.R, 332.= A.T.R. 1963 S.C. 1295.\n\n...... - (\n\n\"' - ·-'! .. .. •\n\nUNION v. BHANUDAS K. GAWDE (Jaswafit Singh, !.) 7 43\n\nThe main contention advanced on behalf of the detenus that the Presidential Orders dated June 27, 1975 and January 18, 1976 do not bar the Court from examining the legajity or vires or reasonableness of the Maharashtra Conditions of Detention Order, 1974 and that what is sought by means of the aforesaid petitions filed by or on their behalf is not the enforcement of the right to personal liberty conferred by Articles 14, 19, 21 and 22 of the Constitution but a redress of the complaint against illegality or ultra vires or unreasonableness of the Maharashtra Conditions of Detention Order, 1974 which imposes unwarranted constraints on them and does not provide them with facilities to which even the ordinary prisoners are entitled is totally misconceived.\n\nIt overlooks the well recognized canon of construction that the doctrines of legality and vires which are sacrosanct in times of peace have no relevance in regard to a legislative or an executive measure taken in times of emergency in the interest of the security of the State.\n\nIt also ignores the well settled position that in times of emergency when the security of the State is of utmost importance, the subordinate legislation has to be benevolently construed and the strict yardstick of reasonableness cannot be appropriately applied.\n\nIt aiso ignores the stark reality that the Presidential Orders dated June 27, 1975 and January 8, 1976 impose blanket bans on any and every judicial enquiry or investigation into the validity of an order depriving a person of his personal liberty no matter whether it stems from the initial order directing his detention or from an order laying down the conditions of his detention.\n\nIt has to be borne in mind that the rule of law during the emergency is no .other than what is contained in Chapter XVIII of the Constitution which is the_ positive and transcendental law.\n\nThe following observations made by my Lord the Chief Justice in this conP+ction in A. D. M.\n\nJabalpur\n\nV'.\n\nShivakant Shukla's case (supra) are worth perusing :-\n\n\"The Constitution is the mandate.\n\nThe Constitution is the rule of law. . ..... The rule of law is not a mere catchword or incantation.\n\nThe rule of law is not a law of nature consistent and invariable at all times and in all circumstances. .... The suspension of right to enforce fundamental right has the effect that the emergency provisions - in Pa_rt XVIII are by themselves the rule of law during times of emergency.\n\nThere cannot be :any rule -of law other than the constitutional rule of law.\n\nThere cannot be any pre- Constitution ot post-Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify , the constitutional provisions during the times of emergency.\"\n\nAgain as observed by my learned brother Beg, J. in A. D. M.\n\nJabalpur v. Shivakant Shukla's case (supra) \"the only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself.\n\nThe Constitution is, for us, the embodiment of the highest '-'positive law\" 'as well .as the reflection of all the rules of natural or ethical or common law lying behind it which can\n\n744 SUPREMil COURT REPORTS\n\n\nb.e recognised by Courts.\n\nIt seems to me to be legally quite impos s1ble to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to 1ie behind the Constitution to frustrate the objects of the express provisions of the Constitution.\n\nI am not aware of any Rule of law or reason which could enable us to do\n\nhat.. What we are asked to do seems nothing short of building some 1magmary parts of a Constitution, supposed to lie behind our existing - Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes.\n\nEven in emergencies, the power of the courts to test the legality of some executive act is not curtailed during the period the proclamation of emergency is in operation.\n\nCourts will apply the test of legality 'if the person aggrieved brings the action in the competent court'.\n\nBut, 'if the locus standiof the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the grounds of -executive action of their relationship with the power to act, it is no use appealing to this Particular concept of the Rule of Law.\n\nIt is just inap))licable to the situation which arises here.\n\nSuch a situation is governed by the Emergency provisions of the Constitution.\n\nThere provisions contain the Rule of Law for such situations in our country ........ .\n\nIf the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that '.'Vhat lies in the executive fied, as indicated above, should not be subjected to judicaJ scrutiny or judged by judicial standards of correctness, I am unable to see how the courts can arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess.\"\n\nThe observations made by my learned brother Chandrachud, in A. D. M. Jabalpur v. Shivakant Shukla's case (supra) are also apposite and may be conveniently referred to at this stage :-\n\n\"The rule of law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution.\n\nThere cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.\"\n\nThe following observations made by my learned brother Bhagwati, J. in A.D.M. Jabalpur v. Shivakant Shukla's case (supra) will also repay perusal :-\n\n\"In the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the Constitution itself.\n\nThe Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitled to enforce his right of personal liberty, whilst a Presidential Order under Article 359, clause ( 1) specifying Article 21 is in force, the Court has to give effect to it as the plain and emphatic command of the Constitution.\"\n\n• o>;·\n\n_,:\n\n~ .. ...-•\n\n_ _,/'\n\nThe observations made by this Court in Dhirubha Devisingh Gohil v. State of Bombay(') and reiterated in A.D.M. Jabalpur v.\n\nShivakant Shukla (supra) that if any pre-Constitution right has been elevated as a fundamental right by its incorporation in Part III, the pre-existing right and the fundamental right are to be considered as having been grouped together as fundamental rights conferred by the Constitution cannot also be ignored.\n\nThe conclusion, therefore, seems to us to be irresistible that as Articles 19, 21 and 22 of the Constitution which, according to the decisions of this Court in A. K. Gopalan v. State of Madras (supra), Kharak Singh v. State of U.P. (supra) and A.D.M. Jabalpur v. Shivakant Shukla (supra) cover and form the source of all the varieties or aspects of the rights that go to constitute what is compendiously described as personal liberty are suspended during the operation of the proclamationof emergency and the Conservation of Foreign Exchange and Preveniion of Smuggling Activities Act and the orders made or passed thereunder are not 'open to challenge on the ground of their being inconsistent with or repugnant to Articles 14, 19, 21 and 22 of the Constitution in view of the aforesaid Presidential Orders dated June 27, 1975 and January 8, i976 which totally take away the locus standi of the detenus to move any court for the enforcement of the aforesaid fundamental rights and the petitions out of which the present appeals have arisen did not seek to enforce the orders laying down the conditions of detention but on the contrary challenged them and covertly sought to enforce the very rights which are suspended, they were clearly untenable and it was not open to-the High :Court of Bombay to strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 ignoring the weighty observations made by this Court in the State of Bombay v. Virkumar Gulabclwnd Shah( 2 ) to the effect that measures which often have to be enacted hastily to meet a grave pressing nationa1 emergency in which the very existence of the State is at stake should be construed more liberally in favour of the State than peace-time legislation ..\n\nNow if no person has a locus standi to move any court to challencre the conditions of detention embodied in the Maharashtra Conditio; s\n\nof Detention Order, 1974, or other such orders or rules, the position whereof is the same as that of the Punjab Communist Detenus Rules, 1950, which, as held by a Constitution Bench of this Court in Maqbool Hussain v. The State of Bombay( 3 ) constitute a body of self-contained rules prescribing the conditions of the detenus' maintenance, discipline etc., we cannot understand how the High Courts of Bombay and Kam:ataka could issue the aforesaid directions disregarding the provisions of the Act particularly sections 5 and 12(6) thereof which are mandatory in character and the aforesaid orders which in any case appear to have been issued in the interest of the effective detention of the detenus.\n\n(1) ll'l5511 S.C.R. 691.c=A.I.R. 1955 S.C. 47.\n\n(2) l19521 S.C.R. 877 at 884.\n\n(3) l 1953) S.C.R. 730.\n\n\nThe avowed object of the Act as manifest from its preamble being the conserv1.1tion and augmentation of foreign exchange and the prevention of smuggling activities of considerable magnitude secretly organised and carried on which have a baneful effect on the national economy and gravely undermine the security of the State, it is essential that the contact of the detenus with the outside world should be reduced to the minimum.\n\nIt is, therefore, for the State Governments. who are in full possession of all material facts including the peculiar problems posed by foreign exchange and smuggling and not for the Courts who have neither the necessary knowledge of the facts nor the legal competence to regulate conditions of detention of persons including their maintenance, interviews or communications with others.\n\nThe High Court also seem to have ignored the observations made by this Court in State of Maharashtra v. Prabhakar Pandurang Sanzgiri & Anr. (supra) and in A.D.M. Jabalpur v.\n\nShivakant shukla\n\n(supra) to the effect that when a person is detained, he loses his freedom. He is no longer a free man and, therefore, he can exercise. only such privileges as are conferred on him by the order of detention or by the rules governing his detention.\n\nWe would also like to reiterate here the observations made by a Constitution Bench of this Court in Maqbool Hussain v. The State uf Bombay (Supra) that the mere fact that a detenu is confined in a prison for the sake of administrative convenience does not entitled him to be treated as a civ:il prisoner or to be governed by the provisions of the Prisons Act.\n\nThe view of the High Court of Bombay to the contrary cannot, therefore, be sustained.\n\nIt has afao been contended by Mr. Seervai that in asking for their temporary removal from their places of detention to their homes to perform funeral ceremonies or to appear at any examination or to be taki:; n to a doctor of their choice for secial medical attention, the detenus are not enforcing their rights to freedom.\n\nThe contention is not sound.\n\nAny relief that may be asked for through the aid of court for giving facilities to a detenu to be taken from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility would be enforcing fundamental rights through the aid of Court.\n\nThe Presidential Proclamation is a complete answer against the enforcement of such reliefs through the aid of Court.\n\nThe detenus may approach the competent administrative authorities for spll, Cial medical attention or for facilities for performane of funeral ceremonies of their kith and kin or for facilities to appear at the examination or any other facility of similar nature.\n\nIt is open to the administrative authorities to take such action as they may be advised under .the relevant prov1isions of the Act.\n\nBut if the authorities do not give any relief it was said by counsel for the detenus then the detenus could come to the court.\n\nThis contention is also unsound and unacceptable because that would also be enforcing fundamental rights through the aid and process of court which is not permissible so long as the aforesaid Proclamation is in force.\n\n• . ,,_\n\nWe are therefore clearly of opinion that the aforesaid writ petitions were not maintainable and the High Court of Bombay and Karnataka were clearly in error in passing the impugned directions which are not warranted by any relevat law including the law relating to preventive detention of the kind with which we are concerned in the present cases.\n\nThe detenus or their relations may if so advised, approach the appropriate Governments: or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof.\n\nIn the result, appeals _diarised as Nos. 3002 and 3003 of 1976\n\n'.'>' fail and are hereby dismissed while the rest of the appeals are allowed\n\n~ and the orders and directions forming the subject-matter thereof are\n\n- ...!... quashed.\n\nThe special leave petitions are disposed of as infructuous C ., {..as in view of our Judgment High Court Orders cannot stand. ..\n\nSince during the course of arguments, it was pointed out to us that the conditions. of detention laid down by some State Government differ in certain particulars, we may, in conclusion, observe that the appropriate Governments would do well to take necessary steps to . bring about uniformity therein.\n\nTo eliminate the chances of hardship, the appropriate Governments may as well issue standing orders to meet special contingencies which necessitate expert medical aid being provided to the detenus for the maintenance of their health or their being removed temporarily from their places of detention on humanitarian grounds to enable them to perform the obsequies of their kith and kin or for appearing ii:i some examination without detriment to the security of the State.\n\nNo order as to costs.\n\nBEG, J.\n\nThe circumstances in which the appeals now before us by special leave arose have been dealt with in extenso by my learned brother Jaswant Singh with whose judgment and proposed orders I entirely concur. . I would, however, like to add some reasons of my own. also to indicate why submissions made on behalf of the respon-\n\n> dents, on the strength of certain observations found in the judgments, F,\n\n..L including mine, in Additional District Magistrate, Jabalpur v. Shiva- \\~' kant Shukla(')_, decided by a Constitution Bench of this Court, cannot be accepted by us.\n\nI will also express my opinion, very briefly and broadly on some other contentions advanced by learned counsel . ·.for the respondents as issues relating to personal liberty, which have been matters of very special and anxious concern to this Court arise ) ·ere. ' G\n\nI think this Court has made it amply clear in Shukla's case\n\n(snpa) that the Constitution embodies, for all Courts in this country, . the• highest norms of law.\n\nIt is the touch-stone by which the validity of .all .action, wh.ether executive, legislative, or judicial is to be. judged.\n\nTha:t 1s why, this Court has, on several occasions, spoken of \"the supremacy of the Constitution\" explained by me in Shukla's case H\n\n(supra) also as follows :\n\n(1) A.LR. 1976 S.C. 1207, 1283=[1976] Supp. S.C.R. 172.\n\n\"The position in this country is clearly one in which the fundamental law found in the Constitution is paramount. ·\n\nThe Constitution provides the test for the validity of all other laws.\n\nIt seeks to determine the spheres of executive and legislative and judicial powers with maticulous care and precision.\n\nThe judicial function, though wider in range, when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention.\n\nThe wider the sweep of the provisions of Articles 21 and 22, the more drastic must be the effect of suspending their enforcement.\n\nAfter all, suspension does not and cannot meart retention under a disguise\".\n\nIt seems to me that the majority view in Shukla's case (supra) was that there is no pre-existing natural or fundamental or common law which, in so far as the rights covered by Part III of our Constitution, together with implications of such rights, are involved, is not embodied in the Constitution itself.\n\nFurthermore, this Court held there, after considering a, ll the relevant. case law on the subject, from the case of A. K. Gopalan v. State of Madras('), through Kharak Singh v. State of U.P. (2), I. C. Golaknath v. State of Punjab(3), llis Holiness Kesavananda Bharat~ Sripadagalavaru v. State of Kerala(I), to Haradhan Saha v. The State of West Bengal & Ors. (5), that the sweep of Articles 19 and 21 is wide , enough to include every aspect of personal freedom.\n\nThis Court recalled that, in Kharak Singh's case, a Constitution Bench of this Court had held that the concept of personal liberty, embodied in Article 21, is a compendious one and \"includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19, which could fall under a broad concept of freedom of person\". \"It was held to incude frocdom from surveillance, from physical torture, and from all kinds of harassment of the person which may interfere with his libert7\".\n\nI summarised my conclusions on this subject in Shukfo's case\n\n(supra) as follows :\n\n\"For the reasons indicated above, I hold as follows :\n\n1'irstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights.\n\nThese basic aspects of rights are elevated to a new level of importance by the Constitution.\n\nAny\n\n(I) [1950] S.C.R. 88.\n\n(2) [1964] (I) S.C.R. 332.\n\n(3) {1967] 12) S.C.R. 762 ..\n\n(4) [1973] Supp. S.C.R. I\n\n(5) [1975] (l) S.C.R. 77R=AJ.R. 1974 S.C. 2154.\n\n. .\n\n...\n\nother co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as . or merger with fundamental rights.\n\nSecondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal, invasions of these rights by executive, legislative, or judicial organs of the State.\n\nThis necessarily means that these B safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences.\n\nThirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom.\n\nIt embraces both procedural and substantive rights.\n\nArticle 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in \"procedure established by law\" and indicates what that procedure should be.\n\nIn that sense, it could be viewed as, substantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power.\n\nFourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State's agents or officials, although, read with other Articles, it could operate also as a protection against unjustifiable .legislative action purporting to authorise deprivations of personal freedom.\n\nFifthly, the most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts.\n\nSixthly, if the protection of enforceability is validly suspended for the duration of an Emergency, declared under Constitutional provisions, the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them\".\n\nI may mention, at the risk of repetition, that I had explained in Shukla's case (supra) that it is not the fundamental rights which are suspended by the Presidential Order under Article 359 of .the Constitution but \"the right to move any Court for the enforcement pf such right by Part III as may be mentioned in the 9rder\" which is suspended for the duration of the Emergency. Speaking for myself, I was of opinion that what is very obviously and clearly affected is the enforceability of fundamental rights during such an Emergency. This means that it is really the jurisdiction of Courts, to the extent to which . a petitioner seeks to enforce a fundamental right mentioned\n\nin the Presidential Order, which is suspended or is .in abeyance .. I said there (at p. 1302) (paragraph 346) : .\n\n\"The result is that I think that there can be no doubt whatsoever that the Presidential Order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes of law in those cases where. persons complain of infringement of their fundamental rights by the executive authorities of the State\".\n\nIt is these processes of law, whether statutory or outside any statute (even assuming, for the sake of argument, that there could be any such non-statutory rights) which Article 21 expressly protects.\n\nTherefore, I am totally unable to understand how, without ignoring what our Constitution enjoins, a Court could do what is Constitutionally prohibited-Le. to enforce a statutory or non-statutory supposed. protectio~.\n\nShukla's case (supra) and other connected cases related to the enforcement of the right to personal liberty by obtaining an order of . release .of detenus after issuing writs of Habeas Corpus.\n\nArticle 223 of D the Constitution, no doubt, gives power not only to issue specified writs but enables High Courts to issue orders and directions for \"any other purpose\". It seems to me that this \"other purpose\" has to be similar to those for which one of the specified writs could issue except to the extent that each specified writ may have special features . or incidents attached to it.\n\nNow, the' writ of Habeas Corpus, as is well known, is wider in scope than enforcement of fundamental rights E . which are available against the State only and its officers and agents.\n\nTherefore, I had said in Shuk/a's case (p. 1300) :\n\n\"The remedy by way of a writ habeas corpus is more general. It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights [vide : Smt. ViJay Verma v. Dr. Shiv Narain Verma, (1955) i2 SCR 983=AIR\n\n1956 SC 108].\n\nThe Attorney General also concedes that judicial proceedings for trial of accused persons would fall outside the interdict of the Presidential Order under Article 359 (1). Therefore, it is unnecessary to consider hypothetical casts of illegal convictions where remedies under the ordinary law are. not suspended\". ·\n\nAs already indicated above, fundamental. rights are conferred and . guaranteed by the Constitution so that citizens, and, in the. cases of.\n\nArticles 14 and 21, even non-citizens, may get relief against the State and its: agencies.\n\nThe suspension of enforcement of . fundamental rights, which are rights enforceable against the . State only, . does not, as I pointed out, in Shuk/ds case, debar enforcement of some right H to personal freedom against a private individual by means of a writ of habeas corpus directed to him to produce . a . person illegaHy detained. But, so far as mere directions or orders .for \"any other purpose\" are: concerned, the jurisdiction of High courts does not\n\n _ __/\n\n'\" '\n\n'r\" ' '\n\n' .,\n\nextend to making orders against private individuals.\n\nTherefore, the distinction which l drew in Shukla's case (supra), between a detention by an officer of the State, vasted with the power to detain and pmporting to act under some law which authorises him to pass a detention order, and a detention by a private individual, has no real bearing on the cases now before us.\n\nI had certainly expressed the view in Shukla' s case that, if a detention by a person or authority is not in exercise or purported .exercise of a power to detain, which is not vested in all officers of State, under statutes providing for it, the action of an officer of the State, on the facts of a part\\£.ular case, may be, prima facie, indistinguishable from a detention by a private person and may not be _protected at all by. the Presidential Order which only covers purported actions of the State and its Officers empowered to detain.\n\nThat Wq§, as I pointed out there, was a purely hypothetical situation not presented in any of the cases before us on that occasion. If the officer concerned is duly empowered and has passed a detention order, that order is certainly not capable of being questioned, under Article 226, either on the ground of alleged ultra v.'res or ma/a {ides.\n\nAii inquiry into the conditions of exercise of such power is barred under Constitutional provisions during the emergency.\n\nThat was the very .clearly expressed majority view in Shukla's case (supra).\n\nIn all the cases now before. us, the application considered by. the High Court was for grant of a direction or order against the State or its Officers, acting in the performance of their purported duties.\n\nThe remedy sought against them was clearly covered by the Presi- dential inhibition which operates, under the Constitution, which is E supreme, against the High Courts.\n\nHence, whatever may be the grievances of the detenus, with regard to the place .of their confinement, the supply of information to them, their desire to get treatment by their own private doctors or to obtain some special or additional food required by them from their own homes, or to leave the place of their confinement temporarily to go to some other place to perform some religious ceremony or other obligation, for which they F bad 'erroneously sought permission and directions of the Court subject to any conditions, such as that the detenus could be accompanied by the police or remain in the custody of the police during the period, are not matter which the High Court had any jurisdiction to consider at all.\n\nIt was, therefore, quite futile to invite our attention to the allegations of petitioners about supposed conditions of their detention.\n\nIndeed, on the face of it, the nature of the claims made was G such that they are essentially matters fit to. be left to the discretion and good sense of the State authorities and officers.· It is not possible to believe, on bare allegations of the kind we have before us, that the State authorities or officers will be vindictive or malicious or unreasonable. in attending to the essential needs of detenus.\n\nThese are not matters which the High Court could consider, in petitions under Article 226 of the Constitution, whatever be the allegations H made on behalf of detenus so as to induce the High Court to inter- . fere. The High Courts can only do so under Article 226 of the\n\nConstitution if they have authority or power to do it under the Constitution.\n\nDevoid of that power, the directions, which may be given by a High Court after such enquiries as it makes, would be m.eless as they will not be capable of enforcement at all during the Emergency under the law as we find it in our Constitution.\n\nIt will be noticed that, in most of the cases before, us, the demands made by the detenus have become infructous either because they have been promptly met by the State concerned under ord1rs of a High Court, without any attempt by the State to do anything more than to question the jurisdiction, quite properly, of the High Court to give such directions, or because the time to which it related has expired so that there has remained nothing more than a question of law or principle for us to be called upon to determine.\n\nI cannot help observing, having regard to some of the allegations made, that they could not be at all easily accepted by any reasonable person and may have been proved to be totally unfounded if they had been actually investigated and tried. ' If the State Governments promptly met, as they seem to have done, all reasonable requests, either before or after the orders of the High Court, without GUestioning anything other than the power of the High Court to give the directions given it could not be readily inferred that all the allegations are either correct or that the Governments concerned are taking any unreasonable stands.\n\nIndeed, we have been requested by the Solicitor General to indicate the Jines on which requests by detenus, of the kind we now find in the cases before us should be dealt with.\n\nThese are matters entirely outside the scope of our judicial functions.\n\nWe cannot suggest what a comprehensive set of rules on such subjects should be.\n\nAll that we need say on such a subject is 'ihat the attitude on behalf of the State has been very reasonable and proper in this Court.\n\nAnd, we have no doubt that any attempt to formulate uniform rules on such matters by authorities concerned and empowered to do so will also disclose the same reasonableness.\n\nSpeaking for myself, I am inclined to suspect that a number of allegations made on behalf of the detenus have the oblique motive of partisan villification or political propaganda for which Courts are not proper places.\n\nI would not like to make any further comments on this aspect.\n\nI would next like to make a few observations about thi~ contention most vehemently _pressed for acceptance by us by Mr.\n\nSeervai appearing on behalf of the respondents.\n\nIt was that we should adjudicate upon the validity of the rules regulating conditions of detention which are being applied to the detenus.\n\nThe rules and the enactments under which !hey have been made have been consi.dered in the judgment of my learned brother Jaswant Singh.\n\nI do not propose to cover the same ground afresh.\n\nI am in complete agreement with all that my learned brother has said.\n\nI would., however, like to add some pbservations on the main ground upon which the validity of the rules is assailed.\n\nIt was urged before us that rules regulating conditions of their detention cannot be either so made or\n\n' .\n\nJ{ -- ...,. ...\n\n,\".\n\n.. 'I 4\n\nliNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.) 7 53\n\nadministered 11s to amount to punitive detention of the Reliance was placed on Haradhan Saha's case (supra), Constitution Bench of this Court said (at p. 2100)\n\ndetenus. where a\n\n\"The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation.\n\nIt may or may not relate to an offence. It is not a parallel proceeding.\n\nIt does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge . or even acquittal.\n\nThe pendency of prosecution is no bar to an order of preventive detention.\n\nAn order of preventive detention is also not a bar to prosecution\".\n\nIn Haradhan Saha's case, this Court was concerned with indicating how preventive detention and punitive detention belong to two very different and distinct categories or could be separately classified from the point of view 9f Art. 14 of the Constitution.\n\nTheir objects and social purposes may be very different in hue and quality.\n\nThe procedures applicable in cases of the two types are certainly radically different. The authorities entrusted with the power of ordering punitive and preventive detentions also act on very different principles and for very different reasons.\n\nThe Constitutional justification for preventive detention was considered by this Court at some length in Shukla's case (supra).\n\nAlthough preventive detention, which is constitutionally sanctioned in this country, and punitive detention may be qualitatively different and be regulated by entirely different procedures and may have very different immediate objectives, yet, if we closely examine the total effects and ultimate social purposes of detention, whether preventive or punitive, it seems to me, speaking entirely for myself, that the theoretical distinctions become less ... , obvious.\n\nIt seems to me that the broad purpose of all action which\n\nesults in the detention of a person by the State or its officers must necessarily be a deprivation which could, if their effects on the detenu alone were to be considered, be not incorrectly described as \"punitive\".\n\nAgain, \"preventive\" detention, like \"punitive\" detention, may have some therapeutic or reformative purposes behind them for the detaining authorities viewing the matters from administrative or psychological points of view necessitating some action in .national Y.\n\ninterest.\n\nSome jurist, who undertakes a study of the subject, may discover certain broad similarities of social purposes, side by side with the distinctions already pointed out by this Court.\n\n Jn Shukla's case I indicated that the exercise of power of preventive detention during an Emergency may be viewed as a purely admi- H nistrative. or. to use the term employed bv Sir William Hordsworth. even \"politic<ll\" action lying in an area which is completely protected from judicial scrutiny.\n\nAs. we ndicated in Shukla's case, high\n\nauthority can be cited for such a proposition [see Liversidge's(') case, and Rex v. Zadl; iq(\") ].\n\nThe result seems to me to be that the principle that the doctrine of State necessity is not available to a State against its own citizens becomes inapplicable during an Emergency, at least as a result of the suspension of enforceability of the rights of citizens under Articles 19 and 21 of the Constitution.\n\nThis\n\n' ..\n\nseems to me to flow directly from the implications of the maxim \"Salus Populi Est Supreme Lax\" (regard for public welfare is the highest law) applied by us in Shukla's case (supra) and by English .\n\nCourts in Liversidge's case (supra) and Zadig's case (supra). This, however, does not mean that the persons detained are without any remedy as was pointed out in Shuk/a's case.\n\nThe result only is lh'at the remedy for all their grievances lies, in times of Emergency, with the executive and administrative authorities of the State where they can take all their complaints.\n\nHere, we have to be content with declaring the legal position that the High Courts, acting under Art. 226, have not been given the power to interfere in any matter involving the assertion or enforcement of a right to personal freedom by\n\n~ ,,-\n\nthe detenus during an Emergency, when exercise of such power of High Courts is suspended.\n\nWe are not concerned in these cases with other kinds of claims which may arise before the ordinary cri-.. minal or civil courts for wrongs done by officers acting maliciously in purported exercise of their powers.\n\nWe are only concerned here with the powers of High Courts under Art. 226 of the Comtitution.\n\nI have no doubt whatsoever, that if the object of a proceeding is to enforce the fundamental right to personal freedom, a High Court's jurisdiction under Art. 226 is barred during an Emergency even if it involves adjudication on the question of vires of a rule made under enactments authorising preventive detention.\n\nI find it impossible to invalidate a rule either intended for or used for regulating the conditions of detention of a person detained under one of the Acts authorising preventive detention, on the ground that the rule could only be used for persons in \"punitive\" detention.\n\nThe attack on the validity of such a rule cannot succeed on the ground that the object of the rule should be shown to be preventive and not punitive. r\n\nfail to find a reasonably practical method of distinguishing a rule'- c_/ which could be used for those in preventive detention under an Act authorising it from another rule which could only apply to persons. in punitive detention undergoing sentences of imprisonment.\n\nThese are really administrative matters with which High Courts can have no concern for the reasons given above and also in Shuk; cr's case (supra).\n\nLearned counsel for the detenus appear to me to be resurrecting the ghost of a \"Natural law\" which we thought we had laid to rest in Shukla's case (supra).\n\nAs certain arguments based oi1 what looks like \"National Law\" have been advanced again before us, I may cite an instructive passage from Judge Cordozo's \"Nature of the Judicial\n\n... •\n\nH Process\". He said :\n\n(I) [1942] A.C. 206.\n\n(2) (1917] A.C. 260.\n\n.. 'i t\n\n UNION v; 11wANuDAs K:. GAWDE (laS.Vii.m Singh, J.) 755\n\n\"The law of nature is .no longer conceived of as something static and eternal.\n\nIt does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail.\n\nThe modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeh to be the science of the ju\\t.\n\nBut the modern philosophy of law departs essentially fljom the natural-law philosophy in that the latter seeks a jt!'st, natural law outside of positive law, wbile the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law--0ut of what it is and of what it is becoming.\n\nThe natural law school seeks an absolute ideal law, 'natural law'. . . . . . . . by the side of which positive law has only secondary importance.\n\nThe modern philosophy of law recognizes that there is only one law, the positive law, but it seeks its ideal side, and its enduring idea.\"\n\nI respectfully agree with this statement of the relationship between natural law and positive law today, in the application of law by courts governed by and subject to the limitations of a written Constitution such as ours.\n\nLet us, however, assume, in order to test the correctness of the proposition, that a rule of natural law, having as much force and validity as a rule of positive law embodied in a statute, has been infringed.\n\nLet us go a little further, and even assume that a rule embodied in a statute has been violated by an authority functioning under the Constitution in either framing or administering a rule.\n\nCan Courts, exercising powers under Article 226, declare that rule or purported action of an executive authority dealing with a detenu under the rule, or in exercise of its discretion, to be ultra vires?\n\nWe are all aware of the dictum of Justi.ce Holmes that \"law is not logic\".\n\nNevertheless, I do not think that the Courts have the power to persue a logic of their own to overcome what the letter of the Constitution clearly prohibits.\n\nThe precedents we have discussed at length in Shukla's case indicate the declarations of law, that Articles 19 and 21 embrace every aspect of an alleged infringement of the right to personal freedom by a State authority or officer purporting to act under a law, by which we are bound.\n\nEven if the action violates a protection conferred by Article 21 upon citizens as well as non-citizens in ordinary times, yet, the result of the suspension of the protection given by Article 21 must necessarilv be that the protection cannot be enforced during an Emergency.\n\nIf that be the effect of the Presidential declaration under Article 359, as we declared it to be after a very anxious consideration in S!; ukfa's case we cannot go behind this declaration of law and the express letter of the law as embodied in our Constitution, and enforce what m11.y be covered by the right to personal freedom in ordinary times whether it parades under the gui.se of natural law or statutory law or Constitutional law.\n\nThis conseauence seems to me to flow logically and naturally and necessarilv from the whole trend of reasonin!, Pnd,\n\nin any c11.e. from the actual declaration of Jew and the conclusion recorded bv us in Shukla's case.\n\nI would, therefore, con:; ider any\n\n14---112SCI/77.\n\nstray sentences or expressions of opinion, in our judgments in Shuklti's case, _which may, torn out of their context, give a coutrary impression, to be mere obiter dicta.\n\nFor the reasons given above, as well as those given by my learned brother Jaswant Singh, I concur with the orders proposed by my learned brother.\n\nP.B.R.\n\nAppeals allowed.\n\n... ,, t", "total_entities": 300, "entities": [{"text": "UNION OF INDIA ETC", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA ETC", "offset_not_found": false}}, {"text": "BHANUDAS KRISHNA GAWDE AND ORS. ETC", "label": "RESPONDENT", "start_char": 24, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "BHANUDAS KRISHNA GAWDE AND ORS. ETC", "offset_not_found": false}}, {"text": "January 25, 1977", "label": "DATE", "start_char": 62, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "January 25, 1977\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 81, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "A. N. RAY, C.J.", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 98, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "M. 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["}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 1598, "end_char": 1611, "source": "ner", "metadata": {"in_sentence": "Allowing the appeals,\n\n(per Ray, C.J. and Jaswant Singh, J.)\n\nHELD : The Writ Petitions were not maintainable and the High Courts were clearly in error in passing the impugned directions which were not warranted by any relevant law including the law relating to preventive detention. [", "canonical_name": "JASWANT SINGH, JJ."}}, {"text": "Defence of India Act, 1962", "label": "STATUTE", "start_char": 1973, "end_char": 1999, "source": "regex", "metadata": {}}, {"text": "Arts. 21 and 22", "label": "PROVISION", "start_char": 2150, "end_char": 2165, "source": "regex", "metadata": {"linked_statute_text": "Defence of India Act, 1962", "statute": "Defence of India Act, 1962"}}, {"text": "June 27, 1975", "label": "DATE", "start_char": 2236, "end_char": 2249, "source": "ner", "metadata": {"in_sentence": "On the other hand since the Presidential Orders dated June 27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their applicability was not made dependent upon the fulfilment of any conditions precedent."}}, {"text": "January 8, 1976", "label": "DATE", "start_char": 2254, "end_char": 2269, "source": "ner", "metadata": {"in_sentence": "On the other hand since the Presidential Orders dated June 27, 1975 and January 8, 1976 were not circumscribed_ by any limitation, their applicability was not made dependent upon the fulfilment of any conditions precedent."}}, {"text": "Arts. 19, 21 and 22", "label": "PROVISION", "start_char": 2499, "end_char": 2518, "source": "regex", "metadata": {"linked_statute_text": "Defence of India Act, 1962", "statute": "Defence of India Act, 1962"}}, {"text": "Arts. 14, 19, 21 and\n\n22", "label": "PROVISION", "start_char": 2764, "end_char": 2788, "source": "regex", "metadata": {"linked_statute_text": "Defence of India Act, 1962", "statute": "Defence of India Act, 1962"}}, {"text": "Kharak Singh", "label": "OTHER_PERSON", "start_char": 3040, "end_char": 3052, "source": "ner", "metadata": {"in_sentence": "742 E, G-H]\n\nAdditional District Magistrate, Jabalgµr v. 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Constitution by or on behalf of certain persons who are detained under orders of the appropriate authorities made under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No."}}, {"text": "section 3", "label": "PROVISION", "start_char": 13793, "end_char": 13802, "source": "regex", "metadata": {"statute": null}}, {"text": "Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974", "label": "STATUTE", "start_char": 13810, "end_char": 13891, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 14027, "end_char": 14036, "source": "regex", "metadata": {"linked_statute_text": "the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974", "statute": "the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974"}}, {"text": "Krishna Bud ha\n\nGawda", "label": "PETITIONER", "start_char": 14862, "end_char": 14883, "source": "ner", "metadata": {"in_sentence": "20/1975\n\nKrishna Bud ha\n\nGawda\nJo ..\n\nJ-9-19i) Cr!."}}, {"text": "Prisons Act, 1894", "label": "STATUTE", "start_char": 15507, "end_char": 15524, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay Yusuf Abdulla", "label": "PETITIONER", "start_char": 16635, "end_char": 16655, "source": "ner", "metadata": {"in_sentence": "784/1975\n\nBombay Yusuf Abdulla\n\nPatel\n\nTHiil!)"}}, {"text": "S33", "label": "PROVISION", "start_char": 16738, "end_char": 16741, "source": "regex", "metadata": {"statute": null}}, {"text": "Ra tan Singh Gokaltlas\n\nRajda", "label": "PETITIONER", "start_char": 16813, "end_char": 16842, "source": "ner", "metadata": {"in_sentence": "Applications\n\n(\\ t 4-620/1975\n\nBu111ba.1'\n\nRa tan Singh Gokaltlas\n\nRajda & , others\n\nSm!."}}, {"text": "Al1ilya Pandui", "label": "RESPONDENT", "start_char": 16861, "end_char": 16875, "source": "ner", "metadata": {"in_sentence": "Al1ilya Pandui a1Jg H:angankar and others\n\nof a Customs Officer, but not within his hearjng;\n\n(3) to have one interview per mon.th with any of the Family members, which should be in accordance with and subject to subclauses (iii), (vi), (vii) and (ix) of clause 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention)\n\nOrder, 1974."}}, {"text": "angankar", "label": "RESPONDENT", "start_char": 16883, "end_char": 16891, "source": "ner", "metadata": {"in_sentence": "Al1ilya Pandui a1Jg H:angankar and others\n\nof a Customs Officer, but not within his hearjng;\n\n(3) to have one interview per mon.th with any of the Family members, which should be in accordance with and subject to subclauses (iii), (vi), (vii) and (ix) of clause 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention)\n\nOrder, 1974."}}, {"text": "clause 12", "label": "PROVISION", "start_char": 17116, "end_char": 17125, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 12(ii)", "label": "PROVISION", "start_char": 18069, "end_char": 18082, "source": "regex", "metadata": {"statute": null}}, {"text": "(1977) 2 S.C.R.\n\n3", "label": "CASE_CITATION", "start_char": 18810, "end_char": 18828, "source": "regex", "metadata": {}}, {"text": "Satish", "label": "RESPONDENT", "start_char": 19173, "end_char": 19179, "source": "ner", "metadata": {"in_sentence": "4177/1976\n\nothers\n\nKarnataka\n\nC.R.\n\nSatish and others\n\nKainataka\n\nL.K.\n\nAdvani\n\nlimited purpose of enabling them to exercise their right to vote at the elections to the statutory Committees on 30-3-1976."}}, {"text": "New Delhi", "label": "GPE", "start_char": 19807, "end_char": 19816, "source": "ner", "metadata": {"in_sentence": "Directions issued to the detaining authority to have the dctenu taken under police escort to New Delhi so as to enable him to be in Rajya Sabha on 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Nos."}}, {"text": "Bellary", "label": "GPE", "start_char": 20363, "end_char": 20370, "source": "ner", "metadata": {"in_sentence": "1454/1973 Karnataka Gurunath Directions issued to the Kulkarni detaining: authority (1) to have the detenu taken under poJice escort on or before 3-4-1976 to the shops in Bellary to enable them topurchasestationary required for the examination and to the college where detenu bad to get the admission ticket to the examination. ("}}, {"text": "Shivanna", "label": "PETITIONER", "start_char": 21131, "end_char": 21139, "source": "ner", "metadata": {"in_sentence": "Karnataka\n\nK.T.\n\nDirections issued to the 210/1976 2096/1976 Shivanna detaining authority to release the detenu on parole on the afternoon of 10-4-1976."}}, {"text": "S.L.P.", "label": "RESPONDENT", "start_char": 22843, "end_char": 22849, "source": "ner", "metadata": {"in_sentence": "S.L.P. (Civil) 8-4-1976 W.P.No."}}, {"text": "Karnataka P.B. Satya-", "label": "PETITIONER", "start_char": 22876, "end_char": 22897, "source": "ner", "metadata": {"in_sentence": "Karnataka P.B. Satya- Directions issued to the Ne."}}, {"text": "21-4-1976", "label": "DATE", "start_char": 25105, "end_char": 25114, "source": "ner", "metadata": {"in_sentence": "5,000/- undertaking not to take part in any , F political activity or in .... any activity detrimental to the security of the - State <luriag the period he remained on parole a~ to surrender himself to lhc Jail authorities not later than\n\n6 P.M. on 21-4-1976."}}, {"text": "Rombay\n\nBombay", "label": "PETITIONER", "start_char": 26085, "end_char": 26099, "source": "ner", "metadata": {"in_sentence": "31/1976\n\nRombay\n\nBombay\n\nRam la I\n\nNa rang\n\nPrabhudas Tribhovandas\n\nor (2) to release him ."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 26874, "end_char": 26887, "source": "ner", "metadata": {"in_sentence": "Prayer of the detcnu to allow him to be released on parole to enable him to take the final LL.B.- examination rejected .in view of the order~ made by this Court i.e. the Supreme Court in High Court \\V.P. No."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 27868, "end_char": 27888, "source": "ner", "metadata": {"in_sentence": "Clauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 & 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 (hereinafter\n\nreferred to as \"the Maharashtra Conditions of Detention Order, 1974\") which have been strnck down by the High Court of Bombay read as under:-·\n\n\"9."}}, {"text": "clause.\n\n12", "label": "PROVISION", "start_char": 29434, "end_char": 29445, "source": "regex", "metadata": {"statute": null}}, {"text": "Prisons Act, 1894", "label": "STATUTE", "start_char": 31015, "end_char": 31032, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "India", "label": "GPE", "start_char": 31424, "end_char": 31429, "source": "ner", "metadata": {"in_sentence": "The weight of such cake shall be 113 grams approximately and if jail made soap is not available in any medium quality, toilet soap manufactured in India : and available locally shall be supplied."}}, {"text": "Union of India", "label": "ORG", "start_char": 32400, "end_char": 32414, "source": "ner", "metadata": {"in_sentence": "Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the\n\ndetenu~ to receive or , Purchase toilet requisites, toilet soap and to consult pnva'.e .doctors lil case of enuine necessity if an application is made to 1t m that behalf, submitted that the right of any person to\n~- . \""}}, {"text": "Maharashtra", "label": "GPE", "start_char": 32433, "end_char": 32444, "source": "ner", "metadata": {"in_sentence": "Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the\n\ndetenu~ to receive or , Purchase toilet requisites, toilet soap and to consult pnva'.e .doctors lil case of enuine necessity if an application is made to 1t m that behalf, submitted that the right of any person to\n~- . \""}}, {"text": "Karnataka", "label": "GPE", "start_char": 32449, "end_char": 32458, "source": "ner", "metadata": {"in_sentence": "Appearing on behalf of the Union of India and the States of Maharashtra and Karnataka, the learned Additional Solicitor General has, while very fairly stating that though the appropriate Government may have no objection to the issue of special orders permitting the\n\ndetenu~ to receive or , Purchase toilet requisites, toilet soap and to consult pnva'.e .doctors lil case of enuine necessity if an application is made to 1t m that behalf, submitted that the right of any person to\n~- . \""}}, {"text": "Article 21", "label": "PROVISION", "start_char": 32927, "end_char": 32937, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14, 19 and 22", "label": "PROVISION", "start_char": 33015, "end_char": 33037, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 33184, "end_char": 33195, "source": "regex", "metadata": {"statute": null}}, {"text": "June 25, 1975", "label": "DATE", "start_char": 33312, "end_char": 33325, "source": "ner", "metadata": {"in_sentence": "move any court for tbe enforcement of the rights conferred by Article 21 (which is the sole repository of the right to life and personal liberty) and Articles 14, 19 and 22 of tbc Constitution having been suspended by virtue of the Presidential Orders dated June 27, 1975 and January 8, 1976 issued under clause (1) of Article 359 of the Constitution (which arc absolute in tenns) for the period during which the proclamation of emergency made on June 25, 1975 under clause\n\n(1) of Article 352 of the Constitution is in force, no person has a locus standi to move any application under Article 226 or Article 227 of the Constitution for issue of a writ, order or direction to enforce any right to personal liberty."}}, {"text": "Article 352", "label": "PROVISION", "start_char": 33347, "end_char": 33358, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 33451, "end_char": 33462, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 227", "label": "PROVISION", "start_char": 33466, "end_char": 33477, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226 and 227", "label": "PROVISION", "start_char": 34023, "end_char": 34042, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 19, 21 and 22", "label": "PROVISION", "start_char": 34150, "end_char": 34172, "source": "regex", "metadata": {"statute": null}}, {"text": "Seervai", "label": "LAWYER", "start_char": 34466, "end_char": 34473, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized :\n\n( 1) that preventive detention docs not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;\n\n( 2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration;\n\n( 3) iliat the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency ancl the exercise of power under section 5.", "canonical_name": "Seervai"}}, {"text": "Ashok Sen", "label": "OTHER_PERSON", "start_char": 34479, "end_char": 34488, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized :\n\n( 1) that preventive detention docs not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;\n\n( 2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration;\n\n( 3) iliat the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency ancl the exercise of power under section 5."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 34494, "end_char": 34499, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized :\n\n( 1) that preventive detention docs not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;\n\n( 2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration;\n\n( 3) iliat the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency ancl the exercise of power under section 5."}}, {"text": "Dattar", "label": "OTHER_PERSON", "start_char": 34508, "end_char": 34514, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized :\n\n( 1) that preventive detention docs not stand on the same footing as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detained they cannot be punitively treated;\n\n( 2) that considerations relevant for applications seeking relief of release by habeas corpus are not relevant to cases in which conditions of detention fall for consideration;\n\n( 3) iliat the principle of legality and the doctrine of ultra vires are not abrogated even during the times of emergency ancl the exercise of power under section 5."}}, {"text": "section 5", "label": "PROVISION", "start_char": 35187, "end_char": 35196, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional District Magistrate, Jabalpur v. Shiva Kant Shukla", "label": "COURT", "start_char": 35340, "end_char": 35401, "source": "ner", "metadata": {"in_sentence": "of the Act must have a reasonable nexus with the purpose for which the power is conferred;\n\n(4) that if according to the majority judgment in Additional District Magistrate, Jabalpur v. Shiva Kant Shukla( 1) even habeas corpus could issue in cases where the order is not duly authenticated then the conditions of detention can certainly be scrutinized and relief can be granted if those conditions re found to be iJ.legal or ultra vires;\n\n(J) [1976] 2 S.C.C. 521 'c'i\\.l."}}, {"text": "BIIANUDAS K. GAWDE", "label": "RESPONDENT", "start_char": 35753, "end_char": 35771, "source": "ner", "metadata": {"in_sentence": "I \"-,\n\n,....\n\n• ).. .,./\n\n: UNION v. BIIANUDAS K. GAWDE (Jaswant Singh, /.) 733\n\n(5) that the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974, being ultra vires and.", "canonical_name": "BIIANUDAS K. GAWDE"}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 36316, "end_char": 36327, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 19", "label": "PROVISION", "start_char": 36425, "end_char": 36435, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 36566, "end_char": 36576, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 36613, "end_char": 36623, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 15, 25 and 26", "label": "PROVISION", "start_char": 36671, "end_char": 36693, "source": "regex", "metadata": {"statute": null}}, {"text": "27th June, 1975", "label": "DATE", "start_char": 36997, "end_char": 37012, "source": "ner", "metadata": {"in_sentence": "The learned Additional Solicitor General has, in his rejoinder, contended that while total rele<1sc is of course different from regulating conditions of detention, the former not being available by virtue of the Presidential Orders dated 27th June, 1975 and January 8, 1976 issued under Article 359(1) of the Constitution which are unconditional even conditions of detention cannot be enforced by moving a court during the period of emergency and that the contention based upon the principles of legality and reasonables and doctrine of ultra vire$ is misconceived."}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 37046, "end_char": 37060, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 37535, "end_char": 37544, "source": "regex", "metadata": {"statute": null}}, {"text": "Shivakant Shukla", "label": "RESPONDENT", "start_char": 38394, "end_char": 38410, "source": "ner", "metadata": {"in_sentence": "stage of detention becomes progressively elusive and hazy when one comes to conditions of detention .. there is little scope for generalisation; that curtain has to be drawn round a detcnn to ensure effectiveness of detention which cannot be sacrificed in the interest of sccnrity of the State; that the observations made by the majority in Shivakant Shukla's case (supra) regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious cases where the Executive\n\nitself could not and would not seek to defend a detention order and can be of no assistance in the present cases where the detenus seek to\n\n}l:.", "canonical_name": "Shivakant Shukla"}}, {"text": "Articles 15, 25 and 26", "label": "PROVISION", "start_char": 39054, "end_char": 39076, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 39208, "end_char": 39218, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 39222, "end_char": 39232, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 39558, "end_char": 39567, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 12 and 5", "label": "PROVISION", "start_char": 40467, "end_char": 40484, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 41076, "end_char": 41093, "source": "ner", "metadata": {"in_sentence": "Without prejudice to the aforementioned contentions advanced by him, the learned Additional Solicitor General has further submitted\n\nthat it is only where there are specific provisions in the rules framed under section 5 of the Act that those provisions being conditions of detentioll' can be enforced when still available to an individual detenu; that the provisions of Maharashtra Conditions of Detention Order, 197 4 have to be examined and scrutinized to see if the facilities claimed by the detenus are excluded by implication, e.g. where a provision for a particular number of interviews is made, it necessarily implies a prohibition against having more interviews; that the question whether a particular act which is not specifically prohibited should be pennitted or not has to be decided by keeping in view the effectiveness of detention; that allowing a detenu to go and vote at a corporate election or to take part in legislative proceedings is destructive of the purpose of detention and in any event approach must be made to the Executive to exercise its rights of parole or relaxation which is implicit in sections 12 and 5 of the Act as for instance if the release is necessitated by exigencies like performance of obsequieal ceremonies or sharadh of a kith and kin, but an order directing the detenu to be taken under police guard to the place where obsequies of a dead relation are to be performed cannot be made by a court as it tantamounts to enforcing his personal liberty; that while humane considerations are generally borne in mind by the authorities having the custody of the detenus and appropriate Government, they cannot furnish reliable basis for judicial relief; that the aforesaid directions of the Bombay High Court equating detenus with 'civil prisoners' amenable to the Prisons Act,\n\n1894, does not only amount to a substitution or re-enactment of section 5 of the Act i.e. of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4 but is also opposed to the definition of the 'prisoner' as contained in the Bombay Jail Manual which has not been amended so as to include persons directed to be detained under any Central or other Act providing for detention; that the mere fact that a person is detained for purposes of administrative convenience in a jail does not mean that he is a civil prisoner or that the Prisons Act applies to him; and that the necessity of having provisions in the conditions of detention orders enabling a detenu to consult private doctors in the presence of the official doctors in case of genuine necessity or to supplement his diet on medical grounds or to indulge in hannless pastimes like chess or carrom or to appear in examinations are matters for which the appropriate Government should be approached."}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 41150, "end_char": 41161, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 41228, "end_char": 41237, "source": "regex", "metadata": {"linked_statute_text": "the Prisons Act,\n\n1894", "statute": "the Prisons Act,\n\n1894"}}, {"text": "Conservation of Foreign Exchange and Prevention of Smuggling Activities Act", "label": "STATUTE", "start_char": 41261, "end_char": 41336, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 41723, "end_char": 41734, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 359", "label": "PROVISION", "start_char": 42551, "end_char": 42562, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 352, 353, 358 and 359", "label": "PROVISION", "start_char": 42773, "end_char": 42803, "source": "regex", "metadata": {"statute": null}}, {"text": "November 3, 1962", "label": "DATE", "start_char": 42925, "end_char": 42941, "source": "ner", "metadata": {"in_sentence": "For a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presidential Orders dated November 3, 1962, December 3, 1971, November 16, 1974, June 25, 1975, June 27, 1975 and January 8, 197 6."}}, {"text": "November 16, 1974", "label": "DATE", "start_char": 42961, "end_char": 42978, "source": "ner", "metadata": {"in_sentence": "For a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presidential Orders dated November 3, 1962, December 3, 1971, November 16, 1974, June 25, 1975, June 27, 1975 and January 8, 197 6."}}, {"text": "January 8, 197", "label": "DATE", "start_char": 43013, "end_char": 43027, "source": "ner", "metadata": {"in_sentence": "For a proper determination of the question, it is necessary to advert to the provisions of Articles 352, 353, 358 and 359 contained in Part XVIII of the Constitution called the Emergency Provisions, as well as to the Presidential Orders dated November 3, 1962, December 3, 1971, November 16, 1974, June 25, 1975, June 27, 1975 and January 8, 197 6."}}, {"text": "Article 352", "label": "PROVISION", "start_char": 43102, "end_char": 43113, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 43519, "end_char": 43529, "source": "ner", "metadata": {"in_sentence": "(2) A Proclamation issued under clause (1)-\n\n(a) may be revoked by subsequent Proclamation;\n\n(h) shall be laid before each House of Parliament;\n\n( c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been E approved by resolutions of both Houses of Parliament;\n\nProvided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of People."}}, {"text": "Article 353", "label": "PROVISION", "start_char": 45793, "end_char": 45804, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 46449, "end_char": 46460, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 46525, "end_char": 46535, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 47010, "end_char": 47019, "source": "regex", "metadata": {"statute": null}}, {"text": "BHANUDAS K. GAWDE", "label": "JUDGE", "start_char": 47089, "end_char": 47106, "source": "ner", "metadata": {"in_sentence": "UNlON \\I. BHANUDAS K. GAWDE (Jaswant Singh, J.) 7 37\n\n\"Article 359.", "canonical_name": "BIIANUDAS K. GAWDE"}}, {"text": "Article 359", "label": "PROVISION", "start_char": 47134, "end_char": 47145, "source": "regex", "metadata": {"statute": null}}, {"text": "E.C.S. Wade", "label": "OTHER_PERSON", "start_char": 49004, "end_char": 49015, "source": "ner", "metadata": {"in_sentence": "special powers to meet extraordinary sitw:ttions created in times of grave national emergencies due to war, external aggression and internal disturbance when the security of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp."}}, {"text": "Godfrey Phillips", "label": "OTHER_PERSON", "start_char": 49020, "end_char": 49036, "source": "ner", "metadata": {"in_sentence": "special powers to meet extraordinary sitw:ttions created in times of grave national emergencies due to war, external aggression and internal disturbance when the security of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp."}}, {"text": "Articles 358 and 359(1)", "label": "PROVISION", "start_char": 49440, "end_char": 49463, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 49549, "end_char": 49560, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 49562, "end_char": 49573, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 49679, "end_char": 49689, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 49796, "end_char": 49805, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 49905, "end_char": 49915, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 50080, "end_char": 50090, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 50151, "end_char": 50165, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 50404, "end_char": 50415, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 50478, "end_char": 50488, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 50626, "end_char": 50636, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 50790, "end_char": 50800, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 50802, "end_char": 50816, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 358 and 359(1)", "label": "PROVISION", "start_char": 51248, "end_char": 51271, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 51302, "end_char": 51313, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 51377, "end_char": 51387, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 51389, "end_char": 51403, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 358 and 359", "label": "PROVISION", "start_char": 51793, "end_char": 51813, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 51878, "end_char": 51889, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 51894, "end_char": 51905, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 51914, "end_char": 51922, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 51954, "end_char": 51964, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 52027, "end_char": 52037, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 52182, "end_char": 52193, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 52314, "end_char": 52328, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 52391, "end_char": 52402, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 52530, "end_char": 52541, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 52752, "end_char": 52763, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 52795, "end_char": 52806, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1A)", "label": "PROVISION", "start_char": 52821, "end_char": 52836, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 52861, "end_char": 52872, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1A)", "label": "PROVISION", "start_char": 52877, "end_char": 52892, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 53011, "end_char": 53022, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 53038, "end_char": 53048, "source": "regex", "metadata": {"statute": null}}, {"text": "(1968] 2 S.C.R. 227", "label": "CASE_CITATION", "start_char": 53061, "end_char": 53080, "source": "regex", "metadata": {}}, {"text": "Article 359", "label": "PROVISION", "start_char": 53324, "end_char": 53335, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 54110, "end_char": 54124, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 358", "label": "PROVISION", "start_char": 54275, "end_char": 54286, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 54498, "end_char": 54509, "source": "regex", "metadata": {"statute": null}}, {"text": "England", "label": "GPE", "start_char": 54590, "end_char": 54597, "source": "ner", "metadata": {"in_sentence": "It would be apposite at this stage to mention that in England in Liversidge v. Anderson( 1) and Greene v. Secretary of State for Home Affairs(2) and in India in Sree Mohan Chowdhury v.\n\nThe Chief Co111111issioner, Union Territory of Tripura(\") and Makhan Singh v. State of Punjab(') the right of any person to challenge any executive action taken during emergency on the ground that it was arbitrary or unlawful has been negatived."}}, {"text": "United States", "label": "GPE", "start_char": 55694, "end_char": 55707, "source": "ner", "metadata": {"in_sentence": "Having noticed the amplitude of the provisions incorporated in our Constitution by its founding fathers in relation to the threat posed by three types of grave emergencies on the basis of the experience gained in England and United States of America and their effect, Jct u~ now turn to the various Presidential Orders and notice their effect."}}, {"text": "Article 359", "label": "PROVISION", "start_char": 56015, "end_char": 56026, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 56128, "end_char": 56139, "source": "regex", "metadata": {"statute": null}}, {"text": "China", "label": "GPE", "start_char": 56199, "end_char": 56204, "source": "ner", "metadata": {"in_sentence": "Presidential Order dated November 3, 1962 issued under clause\n\n(1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows:-\n\n\"New Delhi, the 3rd November, 1962\n\nG.S.R. 1464-In exercise of the powers conferred by clause ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or any rule or order made thereunder.\""}}, {"text": "Article 359", "label": "PROVISION", "start_char": 56346, "end_char": 56357, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 56503, "end_char": 56513, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 22", "label": "PROVISION", "start_char": 56518, "end_char": 56528, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 56657, "end_char": 56668, "source": "regex", "metadata": {"statute": null}}, {"text": "26th October, 1962", "label": "DATE", "start_char": 56684, "end_char": 56702, "source": "ner", "metadata": {"in_sentence": "Presidential Order dated November 3, 1962 issued under clause\n\n(1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows:-\n\n\"New Delhi, the 3rd November, 1962\n\nG.S.R. 1464-In exercise of the powers conferred by clause ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or any rule or order made thereunder.\""}}, {"text": "Defence of India Ordinance, 1962", "label": "STATUTE", "start_char": 56778, "end_char": 56810, "source": "regex", "metadata": {}}, {"text": "Article 14", "label": "PROVISION", "start_char": 56893, "end_char": 56903, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "Article 352(2)", "label": "PROVISION", "start_char": 57145, "end_char": 57159, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "Article 352(1)", "label": "PROVISION", "start_char": 57251, "end_char": 57265, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "Article 352", "label": "PROVISION", "start_char": 57422, "end_char": 57433, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "V. V. Giri", "label": "OTHER_PERSON", "start_char": 57458, "end_char": 57468, "source": "ner", "metadata": {"in_sentence": "Proclamation of emergency issued by the President of India under Article 352(1) of the Constitution on December 3, 1971, consequent upon the Pakistani aggression reads as under :-\n\n\"In exercise of the powers conferred by clause ( 1) of Article 352 of the Constitution, I, V. V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.\""}}, {"text": "Article 359", "label": "PROVISION", "start_char": 57690, "end_char": 57701, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "Article 359", "label": "PROVISION", "start_char": 57799, "end_char": 57810, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Ordinance, 1962", "statute": "the Defence of India Ordinance, 1962"}}, {"text": "section 3", "label": "PROVISION", "start_char": 58004, "end_char": 58013, "source": "regex", "metadata": {"statute": null}}, {"text": "Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 58030, "end_char": 58072, "source": "regex", "metadata": {}}, {"text": "Article 14", "label": "PROVISION", "start_char": 58155, "end_char": 58165, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "Article 22", "label": "PROVISION", "start_char": 58214, "end_char": 58224, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "section 3", "label": "PROVISION", "start_char": 58399, "end_char": 58408, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "Article 352", "label": "PROVISION", "start_char": 58643, "end_char": 58654, "source": "regex", "metadata": {"linked_statute_text": "the Maintenance of Internal Security Act, 1971", "statute": "the Maintenance of Internal Security Act, 1971"}}, {"text": "June 20, 1975", "label": "DATE", "start_char": 58819, "end_char": 58832, "source": "ner", "metadata": {"in_sentence": "On June 20, 1975, the President of india amended the above ."}}, {"text": "india", "label": "GPE", "start_char": 58851, "end_char": 58856, "source": "ner", "metadata": {"in_sentence": "On June 20, 1975, the President of india amended the above ."}}, {"text": "Article 352", "label": "PROVISION", "start_char": 59138, "end_char": 59149, "source": "regex", "metadata": {"statute": null}}, {"text": "Fakhruddin Ali Ahmed", "label": "OTHER_PERSON", "start_char": 59174, "end_char": 59194, "source": "ner", "metadata": {"in_sentence": "In ~.xercise of the powers conferred by clause ( 1) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is 1threate11ded by internal disturbances."}}, {"text": "Article 359", "label": "PROVISION", "start_char": 59480, "end_char": 59491, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 59580, "end_char": 59591, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 59761, "end_char": 59771, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 59773, "end_char": 59783, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 22", "label": "PROVISION", "start_char": 59788, "end_char": 59798, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 60017, "end_char": 60028, "source": "regex", "metadata": {"statute": null}}, {"text": "3rd December, 1971", "label": "DATE", "start_char": 60056, "end_char": 60074, "source": "ner", "metadata": {"in_sentence": "Presidential Order dated June 27, 1975 promulgated under clause\n\n(1) of Article 359 of the Constitution runs thus :-\n\n\"In excrise of the power conferred by claus'e ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementicmed rights shall remain suspended for the period during which the Proclamations of Emergency made under clause ( 1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force."}}, {"text": "25th June, 1975", "label": "DATE", "start_char": 60086, "end_char": 60101, "source": "ner", "metadata": {"in_sentence": "Presidential Order dated June 27, 1975 promulgated under clause\n\n(1) of Article 359 of the Constitution runs thus :-\n\n\"In excrise of the power conferred by claus'e ( 1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementicmed rights shall remain suspended for the period during which the Proclamations of Emergency made under clause ( 1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force."}}, {"text": "Jammu and Kashmir", "label": "GPE", "start_char": 60205, "end_char": 60222, "source": "ner", "metadata": {"in_sentence": "This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir."}}, {"text": "Article 359", "label": "PROVISION", "start_char": 60353, "end_char": 60364, "source": "regex", "metadata": {"statute": null}}, {"text": "June 29, 1975", "label": "DATE", "start_char": 60391, "end_char": 60404, "source": "ner", "metadata": {"in_sentence": "On June 29, 1975, another order was issued by the President whereby the words \"except the State of Jammu and Kashmir\" in the order dated June 27, 1975."}}, {"text": "State of Jammu and Kashmir", "label": "GPE", "start_char": 60478, "end_char": 60504, "source": "ner", "metadata": {"in_sentence": "On June 29, 1975, another order was issued by the President whereby the words \"except the State of Jammu and Kashmir\" in the order dated June 27, 1975."}}, {"text": "September 25, 1975", "label": "DATE", "start_char": 60559, "end_char": 60577, "source": "ner", "metadata": {"in_sentence": "On September 25, 1975, another Presidential Order was issued as a result ad' which the last paragraph in the Presidential Order dated June 27, 1975 was omitted."}}, {"text": "Article 359(1)", "label": "PROVISION", "start_char": 60783, "end_char": 60797, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 60924, "end_char": 60934, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 21 and 22", "label": "PROVISION", "start_char": 62247, "end_char": 62265, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 352", "label": "PROVISION", "start_char": 62394, "end_char": 62405, "source": "regex", "metadata": {"statute": null}}, {"text": "October 26, 1962", "label": "DATE", "start_char": 62417, "end_char": 62433, "source": "ner", "metadata": {"in_sentence": "Apart from the fact that the Presidential Order dated November 3, 1962 did not make any mention of the pending proceedings, it was, as pointed out by this Court in State of Maharashtra v. Prabhakar Pa11dura11g Sanzg'ri(') Dr. Ram Manohar Lohia v. State of Bihar(2) Mak/um Singh v.\n\nState of Punjab (supra) and by the majority in A.D.M. Juba/pur v.\n\nShivakant Shukla (supra), hedged by a condition inasmuch as it declared that the right of any person to move any court for the enforcem\\:nt of rights conferred by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (I) of Article 352 thereof on October 26, 1962 is in force if such a person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) (which was later on replaced by the Defence of India Act, 1962) or any rule or order made thereunder.\""}}, {"text": "Defence of India Ordinance, 1962", "label": "STATUTE", "start_char": 62510, "end_char": 62542, "source": "regex", "metadata": {}}, {"text": "Defence of India Act, 1962", "label": "STATUTE", "start_char": 62592, "end_char": 62618, "source": "regex", "metadata": {}}, {"text": "Articles 21 and 22", "label": "PROVISION", "start_char": 62905, "end_char": 62923, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Act, 1962", "statute": "the Defence of India Act, 1962"}}, {"text": "Articles 19, 21 and 22", "label": "PROVISION", "start_char": 63438, "end_char": 63460, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Act, 1962", "statute": "the Defence of India Act, 1962"}}, {"text": "Articles 14, 19, 21 and 22", "label": "PROVISION", "start_char": 63995, "end_char": 64021, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14, 19, 21 and 22", "label": "PROVISION", "start_char": 64733, "end_char": 64759, "source": "regex", "metadata": {"statute": null}}, {"text": "A. D. M.\n\nJabalpur", "label": "JUDGE", "start_char": 66283, "end_char": 66301, "source": "ner", "metadata": {"in_sentence": "The following observations made by my Lord the Chief Justice in this conP+ction in A. D. M.\n\nJabalpur\n\nV'."}}, {"text": "Shivakant Shukla", "label": "RESPONDENT", "start_char": 66308, "end_char": 66324, "source": "ner", "metadata": {"in_sentence": "Shivakant Shukla's case (supra) are worth perusing :-\n\n\"The Constitution is the mandate.", "canonical_name": "Shivakant Shukla"}}, {"text": "cannot be any pre- Constitution ot post-Constitution Rule", "label": "STATUTE", "start_char": 66870, "end_char": 66927, "source": "regex", "metadata": {}}, {"text": "s1", "label": "PROVISION", "start_char": 67642, "end_char": 67644, "source": "regex", "metadata": {"linked_statute_text": "There cannot be any pre- Constitution ot post-Constitution Rule", "statute": "There cannot be any pre- Constitution ot post-Constitution Rule"}}, {"text": "Chandrachud", "label": "OTHER_PERSON", "start_char": 69495, "end_char": 69506, "source": "ner", "metadata": {"in_sentence": "The observations made by my learned brother Chandrachud, in A. D. M. Jabalpur v. Shivakant Shukla's case (supra) are also apposite and may be conveniently referred to at this stage :-\n\n\"The rule of law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 69946, "end_char": 69954, "source": "ner", "metadata": {"in_sentence": "The following observations made by my learned brother Bhagwati, J. in A.D.M. Jabalpur v. Shivakant Shukla's case (supra) will also repay perusal :-\n\n\"In the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the Constitution itself."}}, {"text": "Article 359", "label": "PROVISION", "start_char": 70447, "end_char": 70458, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 70483, "end_char": 70493, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 19, 21 and 22", "label": "PROVISION", "start_char": 71136, "end_char": 71158, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14, 19, 21 and 22", "label": "PROVISION", "start_char": 71786, "end_char": 71812, "source": "regex", "metadata": {"statute": null}}, {"text": "January 8, i976", "label": "DATE", "start_char": 71902, "end_char": 71917, "source": "ner", "metadata": {"in_sentence": "The conclusion, therefore, seems to us to be irresistible that as Articles 19, 21 and 22 of the Constitution which, according to the decisions of this Court in A. K. Gopalan v. State of Madras (supra), Kharak Singh v. State of U.P. (supra) and A.D.M. Jabalpur v. Shivakant Shukla (supra) cover and form the source of all the varieties or aspects of the rights that go to constitute what is compendiously described as personal liberty are suspended during the operation of the proclamationof emergency and the Conservation of Foreign Exchange and Preveniion of Smuggling Activities Act and the orders made or passed thereunder are not 'open to challenge on the ground of their being inconsistent with or repugnant to Articles 14, 19, 21 and 22 of the Constitution in view of the aforesaid Presidential Orders dated June 27, 1975 and January 8, i976 which totally take away the locus standi of the detenus to move any court for the enforcement of the aforesaid fundamental rights and the petitions out of which the present appeals have arisen did not seek to enforce the orders laying down the conditions of detention but on the contrary challenged them and covertly sought to enforce the very rights which are suspended, they were clearly untenable and it was not open to-the High :Court of Bombay to strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 ignoring the weighty observations made by this Court in the State of Bombay v. Virkumar Gulabclwnd Shah( 2 ) to the effect that measures which often have to be enacted hastily to meet a grave pressing nationa1 emergency in which the very existence of the State is at stake should be construed more liberally in favour of the State than peace-time legislation ..\n\nNow if no person has a locus standi to move any court to challencre the conditions of detention embodied in the Maharashtra Conditio; s\n\nof Detention Order, 1974, or other such orders or rules, the position whereof is the same as that of the Punjab Communist Detenus Rules, 1950, which, as held by a Constitution Bench of this Court in Maqbool Hussain v. The State of Bombay( 3 ) constitute a body of self-contained rules prescribing the conditions of the detenus' maintenance, discipline etc.,"}}, {"text": "High :Court of Bombay", "label": "COURT", "start_char": 72345, "end_char": 72366, "source": "ner", "metadata": {"in_sentence": "The conclusion, therefore, seems to us to be irresistible that as Articles 19, 21 and 22 of the Constitution which, according to the decisions of this Court in A. K. Gopalan v. State of Madras (supra), Kharak Singh v. State of U.P. (supra) and A.D.M. Jabalpur v. Shivakant Shukla (supra) cover and form the source of all the varieties or aspects of the rights that go to constitute what is compendiously described as personal liberty are suspended during the operation of the proclamationof emergency and the Conservation of Foreign Exchange and Preveniion of Smuggling Activities Act and the orders made or passed thereunder are not 'open to challenge on the ground of their being inconsistent with or repugnant to Articles 14, 19, 21 and 22 of the Constitution in view of the aforesaid Presidential Orders dated June 27, 1975 and January 8, i976 which totally take away the locus standi of the detenus to move any court for the enforcement of the aforesaid fundamental rights and the petitions out of which the present appeals have arisen did not seek to enforce the orders laying down the conditions of detention but on the contrary challenged them and covertly sought to enforce the very rights which are suspended, they were clearly untenable and it was not open to-the High :Court of Bombay to strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 ignoring the weighty observations made by this Court in the State of Bombay v. Virkumar Gulabclwnd Shah( 2 ) to the effect that measures which often have to be enacted hastily to meet a grave pressing nationa1 emergency in which the very existence of the State is at stake should be construed more liberally in favour of the State than peace-time legislation ..\n\nNow if no person has a locus standi to move any court to challencre the conditions of detention embodied in the Maharashtra Conditio; s\n\nof Detention Order, 1974, or other such orders or rules, the position whereof is the same as that of the Punjab Communist Detenus Rules, 1950, which, as held by a Constitution Bench of this Court in Maqbool Hussain v. The State of Bombay( 3 ) constitute a body of self-contained rules prescribing the conditions of the detenus' maintenance, discipline etc.,"}}, {"text": "Punjab Communist Detenus Rules, 1950", "label": "STATUTE", "start_char": 73064, "end_char": 73100, "source": "regex", "metadata": {}}, {"text": "High Courts of Bombay", "label": "COURT", "start_char": 73346, "end_char": 73367, "source": "ner", "metadata": {"in_sentence": "we cannot understand how the High Courts of Bombay and Kam:ataka could issue the aforesaid directions disregarding the provisions of the Act particularly sections 5 and 12(6) thereof which are mandatory in character and the aforesaid orders which in any case appear to have been issued in the interest of the effective detention of the detenus."}}, {"text": "sections 5 and 12(6)", "label": "PROVISION", "start_char": 73471, "end_char": 73491, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Communist Detenus Rules, 1950", "statute": "the Punjab Communist Detenus Rules, 1950"}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 75375, "end_char": 75386, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Bombay and Karnataka", "label": "COURT", "start_char": 77126, "end_char": 77160, "source": "ner", "metadata": {"in_sentence": "We are therefore clearly of opinion that the aforesaid writ petitions were not maintainable and the High Court of Bombay and Karnataka were clearly in error in passing the impugned directions which are not warranted by any relevat law including the law relating to preventive detention of the kind with which we are concerned in the present cases."}}, {"text": "section 5", "label": "PROVISION", "start_char": 77537, "end_char": 77546, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 77557, "end_char": 77567, "source": "regex", "metadata": {"statute": null}}, {"text": "BEG", "label": "JUDGE", "start_char": 78782, "end_char": 78785, "source": "ner", "metadata": {"in_sentence": "BEG, J.\n\nThe circumstances in which the appeals now before us by special leave arose have been dealt with in extenso by my learned brother Jaswant Singh with whose judgment and proposed orders I entirely concur. .", "canonical_name": "Beg"}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 78921, "end_char": 78934, "source": "ner", "metadata": {"in_sentence": "BEG, J.\n\nThe circumstances in which the appeals now before us by special leave arose have been dealt with in extenso by my learned brother Jaswant Singh with whose judgment and proposed orders I entirely concur. .", "canonical_name": "JASWANT SINGH, JJ."}}, {"text": "Articles 14 and 19", "label": "PROVISION", "start_char": 80567, "end_char": 80585, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 21 and 22", "label": "PROVISION", "start_char": 80717, "end_char": 80735, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 21 and 22", "label": "PROVISION", "start_char": 80838, "end_char": 80856, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 19 and 21", "label": "PROVISION", "start_char": 81697, "end_char": 81715, "source": "regex", "metadata": {"statute": null}}, {"text": "Kharak Singh's", "label": "OTHER_PERSON", "start_char": 81808, "end_char": 81822, "source": "ner", "metadata": {"in_sentence": "This Court recalled that, in Kharak Singh's case, a Constitution Bench of this Court had held that the concept of personal liberty, embodied in Article 21, is a compendious one and \"includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19, which could fall under a broad concept of freedom of person\". \"", "canonical_name": "Kharak Singh's"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 81923, "end_char": 81933, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 82069, "end_char": 82079, "source": "regex", "metadata": {"statute": null}}, {"text": "Shukfo", "label": "OTHER_PERSON", "start_char": 82350, "end_char": 82356, "source": "ner", "metadata": {"in_sentence": "I summarised my conclusions on this subject in Shukfo's case\n\n(supra) as follows :\n\n\"For the reasons indicated above, I hold as follows :\n\n1'irstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights.", "canonical_name": "Shuklti"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 83428, "end_char": 83438, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 83530, "end_char": 83540, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 22", "label": "PROVISION", "start_char": 83641, "end_char": 83651, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 83938, "end_char": 83948, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 84071, "end_char": 84081, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 85038, "end_char": 85049, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 86156, "end_char": 86166, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 223", "label": "PROVISION", "start_char": 86600, "end_char": 86611, "source": "regex", "metadata": {"statute": null}}, {"text": "Shuk", "label": "OTHER_PERSON", "start_char": 87202, "end_char": 87206, "source": "ner", "metadata": {"in_sentence": "Therefore, I had said in Shuk/a's case (p. 1300) :\n\n\"The remedy by way of a writ habeas corpus is more general.", "canonical_name": "Shuklti"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 87367, "end_char": 87377, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR\n\n1956 SC 108", "label": "CASE_CITATION", "start_char": 87502, "end_char": 87518, "source": "regex", "metadata": {}}, {"text": "Article 359", "label": "PROVISION", "start_char": 87677, "end_char": 87688, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14 and 21", "label": "PROVISION", "start_char": 87980, "end_char": 87998, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 89747, "end_char": 89758, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 91743, "end_char": 91754, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 91918, "end_char": 91929, "source": "regex", "metadata": {"statute": null}}, {"text": "Seervai", "label": "LAWYER", "start_char": 94466, "end_char": 94473, "source": "ner", "metadata": {"in_sentence": "I would next like to make a few observations about thi~ contention most vehemently _pressed for acceptance by us by Mr.\n\nSeervai appearing on behalf of the respondents.", "canonical_name": "Seervai"}}, {"text": "Haradhan Saha", "label": "OTHER_PERSON", "start_char": 95306, "end_char": 95319, "source": "ner", "metadata": {"in_sentence": ".. 'I 4\n\nliNION v. BHANUDAS K. GAWDE (Jaswant Singh, J.) 7 53\n\nadministered 11s to amount to punitive detention of the Reliance was placed on Haradhan Saha's case (supra), Constitution Bench of this Court said (at p. 2100)\n\ndetenus."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 96308, "end_char": 96315, "source": "regex", "metadata": {"statute": null}}, {"text": "Jn Shukla", "label": "OTHER_PERSON", "start_char": 97993, "end_char": 98002, "source": "ner", "metadata": {"in_sentence": "Jn Shukla's case I indicated that the exercise of power of preventive detention during an Emergency may be viewed as a purely admi- H nistrative."}}, {"text": "Liversidge", "label": "OTHER_PERSON", "start_char": 98383, "end_char": 98393, "source": "ner", "metadata": {"in_sentence": "we ndicated in Shukla's case, high\n\nauthority can be cited for such a proposition [see Liversidge's(') case, and Rex v. Zadl; iq(\") ]."}}, {"text": "Articles 19 and 21", "label": "PROVISION", "start_char": 98701, "end_char": 98719, "source": "regex", "metadata": {"statute": null}}, {"text": "Zadig", "label": "OTHER_PERSON", "start_char": 98993, "end_char": 98998, "source": "ner", "metadata": {"in_sentence": "Courts in Liversidge's case (supra) and Zadig's case (supra)."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 99424, "end_char": 99432, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 99942, "end_char": 99950, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 100126, "end_char": 100134, "source": "regex", "metadata": {"statute": null}}, {"text": "Cordozo", "label": "JUDGE", "start_char": 101437, "end_char": 101444, "source": "ner", "metadata": {"in_sentence": "As certain arguments based oi1 what looks like \"National Law\" have been advanced again before us, I may cite an instructive passage from Judge Cordozo's \"Nature of the Judicial\n\n... •\n\nH Process\"."}}, {"text": "laS.Vii.m Singh", "label": "JUDGE", "start_char": 101586, "end_char": 101601, "source": "ner", "metadata": {"in_sentence": "GAWDE (laS.Vii.m Singh, J.) 755\n\n\"The law of nature is .no longer conceived of as something static and eternal."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 103249, "end_char": 103260, "source": "regex", "metadata": {"statute": null}}, {"text": "Justi.ce Holmes", "label": "JUDGE", "start_char": 103452, "end_char": 103467, "source": "ner", "metadata": {"in_sentence": "We are all aware of the dictum of Justi.ce Holmes that \"law is not logic\"."}}, {"text": "Articles 19 and 21", "label": "PROVISION", "start_char": 103752, "end_char": 103770, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 103993, "end_char": 104003, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 21", "label": "PROVISION", "start_char": 104122, "end_char": 104132, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 359", "label": "PROVISION", "start_char": 104274, "end_char": 104285, "source": "regex", "metadata": {"statute": null}}, {"text": "Shuklti", "label": "OTHER_PERSON", "start_char": 104989, "end_char": 104996, "source": "ner", "metadata": {"in_sentence": "stray sentences or expressions of opinion, in our judgments in Shuklti's case, _which may, torn out of their context, give a coutrary impression, to be mere obiter dicta.", "canonical_name": "Shuklti"}}]}
{"document_id": "1977_2_757_761_EN", "year": 1977, "text": ") .I\n\nDADO YOGENDRENATH SINGH & ORS.\n\nTHE COLLECTOR, SEONI\n\nJanuary 25, 19.77\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.]\n\nThe Land Acquisiton Act, 1894, S. 23(1)--Considerations for determination of compensation, scope of.\n\nResponding to a notice under s. !I of the Land Acquisiton Act, 1894, the appellants filed a claim for Rs. 1500/- per acre at which .rate the adjoining lands were sold.\n\nThe Collector awarded compensation at the rate of Rs. 450/- per acre.\n\nAt the instance of the appellants under s. 18 of the Act, the matter was referred to the District Judge who enhanc_ed the compensation to Rs. 11,000/- per acre.\n\nAn appeal by the Collector was allowed by the High Court on the ground that the District Judge had acted -contrary to the mandate contained in\n\n~. 25(1) of the Act, by awarding compensation in excess of tl)e amount claimed.\n\nThe appellants contended that their land had building potentiality and its value was substantially more than Rs. 500 /- per acre, which had ben paid by them to the Government as diversion charges for permission to use 'the adjoining land for building houses.\n\nAllowing the appeal by certificate, the Court,\n\nHELD : The circumstance that the appellants had voluntarily paid Rs. 500/- per acre as diversion charges, for laying out __ the adjQinjp.g land into_ plots as building sites, taken in , conjunction with tne oflier facts, namely, that the land in question is within the municipal limits and is located just .on the edge of an inhabited locality of the town, 'having other buildings in the immediate vicinity, - show that its potential value as building sites is much more than the rate of RB. 450/- per acre, awarded by the Collector and t)le J:Iigh Court [760 C-D, 761 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2128 of 1969.\n\nFrom the Judment and Order dated 4th May, 1968 of the Madhya Pradesh ; High Court .in First Appal No. 88/67.\n\nM. S. Gupta for the Appellants.\n\nRam Panjwanii and H. S. Parihar for Respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThis appeal on certificate is directed against a judgment, dated May 4, 1968, of the High Court of Madhya Pradesh.\n\nIt arises out of these facts :\n\nThe appellants were owners of 7.35 acres of land being a part of Khasra No. 47 /1 ·.in the area of village Manglipeth District Seoni, Madhya Pradesh.\n\nOn November 4, 1963, a notification under s. 4 readwith Sub-s. (1) of s. 17 of the Land Acquisition Act, 1894 (to be hereinafter referred to as the Act) was published in the Government Gazette stating that this land was needed by the State Government for implementation of Seoni Water Supply Scheme. The declaration under s. 6 of the Act was published on December 18, 1963, and\n\nnotices under s. 9 of the Act were issued by the Collector on December :28, 1963.\n\nIn response to that notice, the appellants filed a claim\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nthat they were willing to accept compensation in respect of this land at the rate of Rs. 1500 /- per acre, \"as the lands adjoining this land and situated in a lesser advantageous position are sold at this rate\".\n\nThe Collector made his award on August 17, 1964, whereby he awarded compensation for this land at the rate of Rs. 450/- per acre.\n\nThe total amount awarded for this piece of land after adding solatium at the rate of 15%, was Rs. 2,904/-. He also awarded interest at the rate ot 4% from September 19, 1964, on which date, the Collector had taken over possession of the land.\n\nD1ssafo, fied with the Collector's award, the appellants made an applic3tion under s. 18 of the Act for reference to the District Court\n\nfor enhancement of the compensation.\n\nThe Collector accordingly made a reference.\n\nThe Additional District Judge, Seoni, who heard the reference, enhanced the compenstion to Rs. 11,000/- per acre.\n\nIn this way, after adding solatium, he awarded to the appellants, herein, a total amount of Rs. 80,850/- together with interest at the rate of 6%.\n\nAgainst that judgment, dated May 2, 1967, of the Additional Dist.net Judge, an appeal was preferred by the Collector, to the High Court.\n\nThe High Court accepted the appeal, set aside the award of the Additional District Judge and restored that of the Collector. The High Court however, granted a certificate under Art 133 of the Constitution. ·\n\nThe first contention of Shri M. S. Gupta, appearing for the appellants, is that the appeal filed in the Wgh Court against the award of the Additional District Judge w.as not an appeal in the eye of law inasmuch as the Collector, who filed it, was not competent to do so.\n\nIt is stressed that no appeal was filed by the State as such, and consequently, the incompetent appeal filed by the Collector should have been dismissed summarily on this preliminary ground without entering upon the merits.\n\nThis objection was raised before the High Court, also.\n\nThe High Court fully considered it against the background of this case, and found no substance in it.\n\nIn the interests of justice we are not disposed to interfere with that finding.\n\nOn merits, we find, in agreement with the High Court, that the District Judge was palpably wrong inasmuch as he awarded compensation at a rate far higher than what had been claimed by the appellants themselves, pursuant to the notice under s. 9 of the Act.\n\nThe learned Additional District Judge acted contrary to the legislative mandate contained in s. 25 ( 1) of the Act, according to which, the Court \"shall not award\" compensation to an applicant in excess of the amount claimed by him pursuant to any notice under s. 9.\n\nThe only question that remains for our decision. is, whether the High Court was right in scaling down the compensation to Rs. 450/- per acre?\n\n~,.\n\n' ,\n\nUNION v. :BHANUDAS K'. GAWDE (Jaswant Singh, J.) 7 59\n\nMr. Gupta contends . that the High Court was no~ right i.n hold- .ing that there was no ex1dence to show that the land m question had . potential value as building sites.\n\nIt is submitted that the High Court has simply ignored that evidence.\n\nIn this connection Counsel has referred to the evidence on record showing that the appellants had before the acquisition, paid diversion charges to the Government, at the rate of Rs. 500/- per acre in respect of the adjoining land, for bringing it into use as building sites.\n\nCounsel has further rcferrd to the evidence showing that the land in question is close to a built .up quarter of the town, and is within the Municipal limits.\n\nShri Ram Pahjwani, appearing for the Respondent, submits that this evidence was much too insufficient to establish the potential value d the land as building sites, because the existing buildings in the vicinity of this land are old buildings, and the deposit of Rs. 500/- .as diversion charges for the adjacent land made by the appellants, was only a speculative investment with an eye on the distant future In support of his contention, Shri Panjwani has referred to the decision of this Court in R. N. Singh v. U.P. Government(').\n\nln our opinion, there is evidence on the record which unmistakably shows that from the view-point of a willing purchaser, at the relevant time, this land had potential value as building sites.\n\nFirstly, it was admitted even by Gokul Prasad who was examined by the Respondents as their Witness No. 1, that in front of the land in question there are buildings which are being used as the office of the Range Officer and as residential quarters for the employees of that Department.\n\nAdjoining the Range Office is the house or Dewan Najaf Ali 1n which the Additional District Judge was residing.\n\nThe witness further admitted that the land in dispute abutt~ on Seoni-Chhindwara Road. . . · ·\n\n; Dadu Yogendra Nath Singh, appellant, testified in the witnessstand that\" apart from the office and the quarters of the Forest Department, there were other buildings also, near this land.\n\nAt a short distance .was the bun&alow of Sh!i Bhargava, Barrister.\n\nThe Municipal Octro1 Post was ad1acent to this land.\n\nThe land in question is within the Municipal limits of Seoni.\n\nThe appellant further stated that he intended to parcel out this land into plots and sell the same as build-' in1 sites and that was why for the adjacent land, he had obtained for\n\nt~t purpOlo, the permission of the Government by depositing diverilon charges at the rate of Rs. 500(- per acre.\n\nHe added that negotiations for tho sale of two plots had already been completed at the rate of 12 annas per foot.\n\nHe also cited other instances of sales of la11.d in the vicinity at rates ranging from 4 annas per foot to 6 annas per foot.\n\nThe oral evigence of Dadu Yogendra Nath Singh with regard to !he fact that the adjoining Jang had been laid out into plots for buildmg purpose~, receives full corroboration from unimpeachable docu- .H ., mentary evidence on record,. which shows that the . appellants had\n\nJ1)[19tl'TJ J .S.C; R. 4R9.\n\nSUPREME CO~RT REPORTS\n\n\nb.efore this acquisition, in 1963, made an application to the Sub-Divisional Officer, Seoni, for permission to bring 6.16 acres of agricultural land out of Kh. No. 47 /1, \"in non-agricultural use viz., for construction of houses\".\n\nThe order of the officer concerned was that\n\nuch permission was granted to him on depositing diversion charges m respect of that area at the rate of Rs. 500/- per acre. It is significant to note that this piece of 6.16 acres was also a part of Khasra No. 47 /1, out of which Khasra, the land, admeasuring 7.35 acres, is in question.\n\nThis circumstance unerringly indicates that the land in question was suitable for being used as building sites, and had for that purpose, a potential value substantially in excess of Rs. 500/- per acre.\n\nThe High Court has not at all discussed this evidence.\n\nIt is difficult to accept the argument advanced on behalf of the respondent that the appellant had paid Rs. 500/- per acre as diversion charges for the adjacent land, merely as speculative business in the hope of making money in the remote future.\n\nNo prudent person would make such an investment if there was no reasonable chance of a good return over that investment in the present, or immediate future.\n\nIn our opinion this circumstance coupled with the other .facts, namely, that the land-in question is within the Municipal limits and is located just on the edge of an inhabited locality of the town, having other buildings in the immediate vicinity, was sufficient to establish its potential value as building sites.\n\nThe observations made by this Court in R. N.\n\nSingh v.\n\nU.P.\n\nGovernment (supra) do not advance the case of the respondent. In that case, Shelat J. quoted these observations from an earlier decision,. in N. B. Jeejabhoy v. The District Collector, Thana (C.A. Nos. 313 to 315 of 1965 decided on August 30, 1965) :\n\n\"A vendor willing to sell his land at the market value will take into consideration a particular potentiality or special adaptability of the land in fixing the price.\n\nIt. is not the lincy or the obsession of the vendor that enters the market\n\nia]ue, but the objective factor namely, whether the said potentiality can be turned to account within a reasonably near future.\n\nThe question therefore turns upon the facts of each case.\n\nIn the context of building potentiality many questions will have to be asked and answered, whether there is pressure on the land for building activity, whether the acquired land is suitable for building purposes, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has extended and within what time, whether buildings have been put up on lands purchased for building purposes, what is the distance between the built-in-land and the land acquired and similar other questions will have to be answered. It is the over-all picture drawn on the said relevant circumstances that affords the solution.\"\n\nWhat has been extracted above are broad guidelines and not immutable absolutes.\n\nThe essence of the whole thing is in tl1e sentence which has been underlined. It shows that in the ultimate\n\n.......... _\n\nDADU YOGENDRENATH v. COLLECTOR (Sarkaria, !.) 161\n\nanalysis, the question, whether or not a land has potential value as building site, 1s primarily one of fact.\n\nIn the present case, the circumstance that the appellants had voluntarily paid Rs. 500/- per acre as diversion charges, for laying out the adjoining land into plots as building sites, was of a clinching character, and taken in conjunction with the oher facts, noticed above, conclusively showed that its potential value as building sites was much more than the rate of Rs. 450/- per acre awarded by the Collector and the High Court.\n\nIn their application dated 17-10-1964, under s. 18 of the Act, the appellants sta, ed that similar land in the immediate vicinity had been sold at the rate of Rs. 1,250 /- per acre and another plot at the rate of Rs. 1,350/- per acre.\n\nThese lands are close to the area for which they had paid the diversion charges at the rate of Rs. 500/- pc,-r acre.\n\nThey filed a map also, showing the location of those lands.\n\nOn an over-all view, after taking into account the potential value of the land, we think it will be reasonable to award compensation to the appellants at the ra'..e of Rs. 1,250/- per acre with interest at 6% per annum till payment, from the date on which the possession was taken ewer by the Collector.\n\nThe appellants shall also be entitled to solatium at 15% on the compensation amount awarded for the land.\n\nAccordingly, we allow the appeal with proportionate costs and modify the decree of the High Court to the extent indicated above.\n\nM.R.\n\nAppeal allowed.", "total_entities": 44, "entities": [{"text": "I\n\nDADO YOGENDRENATH SINGH & ORS", "label": "PETITIONER", "start_char": 3, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "I\n\nDADO YOGENDRENATH SINGH & ORS", "offset_not_found": false}}, {"text": "THE COLLECTOR, SEONI", "label": "RESPONDENT", "start_char": 38, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "THE COLLECTOR, SEONI", "offset_not_found": false}}, {"text": "January 25, 19.77", "label": "DATE", "start_char": 60, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "THE COLLECTOR, SEONI\n\nJanuary 25, 19.77\n\n[H. R. KHANNA, R. S. SARKARIA AND JASWANT SINGH, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 94, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Land Acquisiton Act, 1894", "label": "STATUTE", "start_char": 138, "end_char": 163, "source": "regex", "metadata": {}}, {"text": "S. 23(1)", "label": "PROVISION", "start_char": 165, "end_char": 173, "source": "regex", "metadata": {"linked_statute_text": "The Land Acquisiton Act, 1894", "statute": "The Land Acquisiton Act, 1894"}}, {"text": "Land Acquisiton Act, 1894", "label": "STATUTE", "start_char": 278, "end_char": 303, "source": "regex", "metadata": {}}, {"text": "s. 18", "label": "PROVISION", "start_char": 516, "end_char": 521, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisiton Act, 1894", "statute": "the Land Acquisiton Act, 1894"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1746, "end_char": 1774, "source": "ner", "metadata": {"in_sentence": "450/- per acre, awarded by the Collector and t)le J:Iigh Court [760 C-D, 761 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 1919, "end_char": 1930, "source": "ner", "metadata": {"in_sentence": "M. S. Gupta for the Appellants.", "canonical_name": "M. S. Gupta"}}, {"text": "Ram Panjwanii", "label": "LAWYER", "start_char": 1952, "end_char": 1965, "source": "ner", "metadata": {"in_sentence": "Ram Panjwanii and H. S. Parihar for Respondent.", "canonical_name": "Ram Panjwanii"}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 1970, "end_char": 1983, "source": "ner", "metadata": {"in_sentence": "Ram Panjwanii and H. S. Parihar for Respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 2045, "end_char": 2053, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThis appeal on certificate is directed against a judgment, dated May 4, 1968, of the High Court of Madhya Pradesh."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 2144, "end_char": 2172, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThis appeal on certificate is directed against a judgment, dated May 4, 1968, of the High Court of Madhya Pradesh."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 2400, "end_char": 2404, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2428, "end_char": 2433, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 2441, "end_char": 2467, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2680, "end_char": 2684, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2751, "end_char": 2755, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "SUPREME COURT REPORTS\n\n[1977] 2 S.C.R.", "label": "COURT", "start_char": 2878, "end_char": 2916, "source": "ner", "metadata": {"in_sentence": "In response to that notice, the appellants filed a claim\n\nSUPREME COURT REPORTS\n\n[1977] 2 S.C.R.\n\nthat they were willing to accept compensation in respect of this land at the rate of Rs."}}, {"text": "August 17, 1964", "label": "DATE", "start_char": 3163, "end_char": 3178, "source": "ner", "metadata": {"in_sentence": "The Collector made his award on August 17, 1964, whereby he awarded compensation for this land at the rate of Rs."}}, {"text": "September 19, 1964", "label": "DATE", "start_char": 3417, "end_char": 3435, "source": "ner", "metadata": {"in_sentence": "He also awarded interest at the rate ot 4% from September 19, 1964, on which date, the Collector had taken over possession of the land."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 3589, "end_char": 3594, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional District Judge, Seoni", "label": "COURT", "start_char": 3730, "end_char": 3762, "source": "ner", "metadata": {"in_sentence": "The Additional District Judge, Seoni, who heard the reference, enhanced the compenstion to Rs."}}, {"text": "May 2, 1967", "label": "DATE", "start_char": 4018, "end_char": 4029, "source": "ner", "metadata": {"in_sentence": "Against that judgment, dated May 2, 1967, of the Additional Dist.net Judge, an appeal was preferred by the Collector, to the High Court."}}, {"text": "Art 133", "label": "PROVISION", "start_char": 4304, "end_char": 4311, "source": "regex", "metadata": {"statute": null}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 4365, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "The first contention of Shri M. S. Gupta, appearing for the appellants, is that the appeal filed in the Wgh Court against the award of the Additional District Judge w.as not an appeal in the eye of law inasmuch as the Collector, who filed it, was not competent to do so.", "canonical_name": "M. S. Gupta"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5313, "end_char": 5317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 5424, "end_char": 5429, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5592, "end_char": 5596, "source": "regex", "metadata": {"statute": null}}, {"text": "BHANUDAS K'. GAWDE", "label": "RESPONDENT", "start_char": 5762, "end_char": 5780, "source": "ner", "metadata": {"in_sentence": "' ,\n\nUNION v. :BHANUDAS K'."}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 5782, "end_char": 5795, "source": "ner", "metadata": {"in_sentence": "GAWDE (Jaswant Singh, J.) 7 59\n\nMr. Gupta contends ."}}, {"text": "Gupta", "label": "OTHER_PERSON", "start_char": 5811, "end_char": 5816, "source": "ner", "metadata": {"in_sentence": "GAWDE (Jaswant Singh, J.) 7 59\n\nMr. Gupta contends ."}}, {"text": "Ram Pahjwani", "label": "LAWYER", "start_char": 6492, "end_char": 6504, "source": "ner", "metadata": {"in_sentence": "Shri Ram Pahjwani, appearing for the Respondent, submits that this evidence was much too insufficient to establish the potential value d the land as building sites, because the existing buildings in the vicinity of this land are old buildings, and the deposit of Rs.", "canonical_name": "Ram Panjwanii"}}, {"text": "Panjwani", "label": "OTHER_PERSON", "start_char": 6931, "end_char": 6939, "source": "ner", "metadata": {"in_sentence": "500/- .as diversion charges for the adjacent land made by the appellants, was only a speculative investment with an eye on the distant future In support of his contention, Shri Panjwani has referred to the decision of this Court in R. N. Singh v. U.P. Government(')."}}, {"text": "Gokul Prasad", "label": "WITNESS", "start_char": 7249, "end_char": 7261, "source": "ner", "metadata": {"in_sentence": "Firstly, it was admitted even by Gokul Prasad who was examined by the Respondents as their Witness No."}}, {"text": "Dadu Yogendra Nath Singh", "label": "PETITIONER", "start_char": 7714, "end_char": 7738, "source": "ner", "metadata": {"in_sentence": "; Dadu Yogendra Nath Singh, appellant, testified in the witnessstand that\" apart from the office and the quarters of the Forest Department, there were other buildings also, near this land.", "canonical_name": "I\n\nDADO YOGENDRENATH SINGH & ORS"}}, {"text": "Seoni", "label": "GPE", "start_char": 8079, "end_char": 8084, "source": "ner", "metadata": {"in_sentence": "The land in question is within the Municipal limits of Seoni."}}, {"text": "Dadu Yogendra Nath Singh", "label": "PETITIONER", "start_char": 8644, "end_char": 8668, "source": "ner", "metadata": {"in_sentence": "The oral evigence of Dadu Yogendra Nath Singh with regard to !", "canonical_name": "I\n\nDADO YOGENDRENATH SINGH & ORS"}}, {"text": "Shelat", "label": "JUDGE", "start_char": 10636, "end_char": 10642, "source": "ner", "metadata": {"in_sentence": "In that case, Shelat J. quoted these observations from an earlier decision,."}}, {"text": "August 30, 1965", "label": "DATE", "start_char": 10792, "end_char": 10807, "source": "ner", "metadata": {"in_sentence": "313 to 315 of 1965 decided on August 30, 1965) :\n\n\"A vendor willing to sell his land at the market value will take into consideration a particular potentiality or special adaptability of the land in fixing the price."}}, {"text": "17-10-1964", "label": "DATE", "start_char": 12752, "end_char": 12762, "source": "ner", "metadata": {"in_sentence": "In their application dated 17-10-1964, under s. 18 of the Act, the appellants sta, ed that similar land in the immediate vicinity had been sold at the rate of Rs."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 12770, "end_char": 12775, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_762_773_EN", "year": 1977, "text": ":::TILE MAllNERY CORPORATION UMITED, CALCUTTA\\ \"II\n\nTHE COMJ.\\USSIONER OF INCOME-TAX, WEST BENGAL,\n\nCALCUTTA\n\nJanuary 25, 1977\n\n(H. R. KHANNA, P. K. GOSWAMI AND P. S. KAILASAM, JJ.]\n\n, Indian Income-tax Act, 1922-S. 15C(2) (i)-Scope of Tests for determining when benefit of the section available-Reconstruction-Tests for determination.\n\nSection I 5C of the Indian Income-tax Act 1922, which deals with exemption from tax of newly established industrial undertakings, provides in sub-s. 2(i) that tl)e sect10n apphes, among others, to any industrial undertaking which is not formed by the splitting up, or the reconstruction of business already in existence.\n\nThe assessee (appellant) was a heavy engineering concern manufacturing boilers, machinery parts and wagons. In addition, it had started a Steel Foundry Division and a Jute Mill Division. The bulk of the goods produced in both the divisions was used in the varic; ms divisions of the assessee company. The assessee's claim for exemption from tax under s. 15C in respect of profits derived from both the companies was rejected by the Income-tax Officer and its appeal was rejected by the App_ellate Assistant Commissioner on the ground that the J.mdertakings were an expansion and reconstruction of the existing business.\n\nOn appeal, the Appellate Tribunal held that although the products manufactured in the two divisions were used in the assessee's business, the Steel Foundry and the Jute Mill Division were new industrial undertakings, in that the machinery used in them was new, they were housed in separate buildings, were established under separate licences and that both the new divisions were maintaining separate books of account. ·\n\n, On reference, the High Court held that it was a case of reconstruction of the existing business because the goods produced in the two divisions were primarily used in the assessee's engineering concern.\n\nAllowing the appeal,\n\nHELD : The Tribunal was right in holding in favour of the assessee. Section !SC is applicable to an absolutely new undertaking for the first time started and in order to deny benefit of the section, the new undertaking must be formed\n\n~ reconstruction of the old bminess.\n\n[768 B-C]\n\n!. (a) In order to 1'• o•titled to the bene11t of s. 15C, the assessee has to I eitaltlish : .\n\n(I)\n\n(2) (3) (4) (5)\n\nthe investmut of substantial fresh eapital in the industrial udertaking; employment of th• requisite labour therein; manufadure or production of articles in the undertaking; earning or profits 'Clearfy attrioutable to the new undertaking; and separate and distinct indentity of the industrial unit set up.\n\n(b) Once the new industrial undertakin¥s. are separate and independent. production units in the sense that the commod1hes produce? or the results ash1eved\n\nare commercially tangible produc~ and the .undertak1!1gs an. be earned O!l\n\n11eparately without complete absorpl!on and losmg thelf identity m the old business, they are not to be treated as being formed by reconstruction of the old business. [772 H, 773 A]\n\nTEXTIL:& llACFL CORP. v. COMM. OP I.T. (Gosw11mi; J.) 763\n\n( c) The object of tit• eection is to encourage the setting up of new industrial undertakings by offeri.!li tu incentives within a certain period. Sub-section (2) has a negative as well as a positive aspect. Negatiyely, a new undertakings should not be. formed by splitting up of the business already in existence and by the reconstruction of business already in existence; and positively, a new undertaking must produce results, that is to say, it has to manufacture or porduce .articles at any time within the stipulated period. Thd new und.ertaking must not be substantially the same as the existing business. The words \"the capital employed\" are significant, for, fresh capital must be employed in the undertaking Claiming exemption.\n\nManufacture or production of articles yielding additional profits aftributa.ble to the new outlay of capital in a separate and distinct unit is the heart of the matter to earn the benefit from the. exemption of tax liability under s. ! 5C.\n\nThe fact that by establishing a new industrial undertaking the assessee expands its existing business would not deprive it of the benefit under s. 15C. If an industrial undertaking produces certain machines or parts which are identifiable units being marketable commodities and the undertaking. can exist even after the cessation of the principal business of the assessee, it cannot be anything but a new and separate industrial undertaking to qualify for appropriate exemption under s. 15C.\n\n[769 E-H, 770A]\n\nIn the instant case, the principal business of the assessee can be carried _on even if the two additional undertakings cease to function. The fact that a por!lon\n\nof the articles produced in the new undertakings had been sold in the open market to others is a circumstance in favour of the assessee that the new industrial units can function on their own. Use of the articles by the assessee is not\n\ndecisive to deny the benefit of s. 15C. There was no formation of any industrial D undertaking out of the existing business since that can take place only when the assets of the old business are transferred substantially to the new undertaking.\n\nAlso, there was no difficulty about ascertainment o fthe exempted profit as separate books of accounts were kept and the undertakings were at senarnte places. mo B D. G-Hl\n\nThe High Court was not right in holding that the two undertakings were formed by reconstruction of the existing business of the assesseec\n\n[773 B-C]\n\n2. Reconstruction involves that substantially the saine business shall be carried on and substantially the same persons shall carry it on. But it does not Involve that all the assets shall pass to the new company .or resuscitated compan, y,\n\nor that, all the shareholders of the old company shall be shareholders in the new company. Substantially the business and the person frtterested must be the.same.\n\n [771 C-Dl\n\nSouth African Supply and Cold Storage Company Wild v. Same Con.ipany, [1904].2 Cb. 268, followed.\n\nCommissioner of Income-tax Bombay City-I v. Gackwar Foam and Rubber Co. Ltd. 35 ITR 662, Commi.sioner of Income-tax v. Ganga Sugar Corpora- • tion Ltd. 92 ITR 17~, Rajowari Mill\" Ltd. v. Commissioner of Income-tax \"-1- Mairas, 50 ITR 2,, N11.garda.T Becharda\" & Brother\" P. Ltd. v. Commissioner\n\n1 -of Income-tax Gujarat, 10.ol ITR 255, Commi.., ioner of Income-tax, West I Bengal-I v. Electric C•n•trttction 11.nd Equipment .company Ltd. 104 ITR 101 1 and Commi\"•ioner nf Income-tax v. Hindustan Motor.T Limited, [1976] Taxa- / tio• Law Reporu 821, approved.\n\nCommissioner •f Income-tax T. Naya Sahitya 84 ITR 567, not approTed.\n\nCIVIL An•ELLATE JURISDICTION: Civil Appeal Nos. 772-773 of 1972. . .\n\nFrom the Judgment and Order dated .9th/10th July, 1970 of. the Calcutta High Court in I. T .. R. No. 158 of 1966. . .. . .\n\nN. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' ' V. P: Rama11, Addi. Sol: Gnual; T. A. Ramachandran and R. fl: Sachthey for ihe llcepondente. . , . , , .. ,\n\nSUPREME COURT REPORTS [1977] 2 s.c.R.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J.\n\nThese two appeals by certificate are from the Judgment of the Calcutta High Court since reported in Commi.1sioner of Income-tax, West Bengal-I v. Textile Machinery Corporation(').\n\nThe two appeals relate respectively to two assessment years 1958-59 (calendar year 1957) and 1959-60 (calendar year 1958). The matter relaes to the claim by the assessee for exemption of tax under section 15C of the Indian Income-tax Act, 1922 (briefly the Act).\n\nThe matter came up before the High Court on a reference under section 66 (1) of the Act.\n\nThe two questions referred to were as follows:-\n\n\"(l) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Steel Foundry Division was an industrial undertaking to whkh section 15C of the Indian Income-tax Act, 1922, applied?\n\n(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Jute Mill Division set up by the assessee-company was an industrial 1, mdertaking to which section 15C of the Indian Incometax Act, 1922, applied?\n\nThe facts may briefly be stated :\n\nThe assessee (the appellant herein) is a heavy engineering concern manufacturing boilers, machinery parts, wagons, etc.\n\nFor the assess- B ment years 1958-59 and 1959-60 the assessee cl11imed exemption of tax under section 15C of the Act in respect of the profits and gains derived from its Steel Foundry Division and a similar claim for relief under section l 5C in respect of i's profits and gains derived from its Jute Mill Division for the year 1959-60.\n\nThe assessee had previously in the earlier years bought from outside the castings manufactured in the Steel Foundry Division which was started in the assessment year 1958-59 and continued thereafter.\n\nAgain, similarly in the year 1959-60. in addition to the manufactur- ' ing of castings in the Steel Foundry Division the assessee started the Jute Mill Division where the parts made out of the raw material supplied by the Boiler Division by machining and forging them were given to the Boiler Division of the assessee.\n\nIt was found that out of a total sale of Rs. 28,23.127 /- of steel castings good~ worth Rs. 18,39,433/- were used in connection with the various Divisions of the company.\n\nIn respect of the Jute Mill Division. the Incomctax Officer found that out of the total ale~ of Rs. 13,03,509/- sales to the Boiler Division totalled Rs. 11,89,812/- and sale~ to outside the Jute Mill Division totalled only a sum of Rs. 1,13.697/-. The Income-tax Officer and the Anpellate Assistant Commissioner, on the above facts, held the under'.akings as expansion and reconstruction of the business already existing and hence the assessee was not entitled\n\n(1) 80 I.T.R. 428.\n\nto exemption under section l SC of the Act. The Incometax Appellate Tribunal, however, allowed the appeal of the assessee and accepted the claim for exemption under section 1 SC.\n\nAccording to the Tribunal both the Steel Foundry and the Jute Mill Division of the assessee were new industrial undertakings.\n\nThe above conclusion was reached on the basis of several facts found by the Tribunal. These are that the machinery was new, was housed in a separate building and that industrial licences had to be obtained, for manufacturing the parts in question.\n\nAccording to the Tribunal the existing business of the assessee consisted of manufacturing boilers, wagons, etc. and for that purpose the assessee was purchasing the spare parts, forgings and castings from outside.\n\nThe Tribunal came to the conclusion that the business of the new industrial undertakings was to manufacture those very spare parts: Hence the Tribunal concluded that it could not be said that the undertakings were formed out of the existing business to come within the mischief of the exclusion clause in section 15C(2) (i).\n\nThe Tribunal rightly relying upon the Tata Iron and Steel Co.\n\nLtd. and Others v. State of Bihar(') also held that even though the manufactured products of the new industrial undertakings were mostly used in the assessee's other business of manufacturing boilers, wagons, etc. the element of profit was there and the extent of the same could be ascertained as the assessee was maintaining separate books of account.\n\nIn the reference at the instance of the Department the High Court answered both the questions in the negative and against the assessee.\n\nThe High Court held as follows:-\n\n\"The goods which the steel foundry division and the jute mill division began producing for the assessee were also previously used by the assessee in its business, .but they were purchased from outside and this purchase from outside was :replaced by production or manufacture from within the assessee's own business.\n\nThis change of producing one's own goods systematically used in the existing business instead of buying them from outside would only be a reconstruction of a business already in existence. . . . . . In so far as they started producing and manufacturing themselves, the assessee was doing something which was only a reconstruction of the business already in existence. . . . . . . . ·\n\nThe newness of the machinery of the steel foundry division and thejute mjll 1livision could not by itself make _them new industrial undertakings.\n\nSeparate housing of, and separate accounts for, the steel foundry division and jute mill division may be only parts of reconstruction of the same business and did not necessarily indicate a new industrial undertaking.\n\nThe grant of a special licence for the steel foundry division did not make it an industrial undertaking to qualify for exemption from tax under section 1 SC, because the licence was for expansion of the existing industrial undertaking and the licence did not cover the jute mill division\".\n\n(1) 48 I.T.R. 123.\n\n766 SUPRi:MI COUAT lllPORTS [1977] 2 s.c.R.\n\nIt is, however, admitted before us that both the units were covered by licence8. ... ' '\n\nThe controversy in these appeals centres round the true contruc tion of section 15C(2) (i) of the Act and in particular with regard to the scope and ambit of the expression therein, namely, the reconstruction of business already in existence.\n\nIs the High Court right in holding that the two industrial undertakings, namely, the Steel Foundry and the Jute Mill Division, are formed by reconstruction of the business already in existence differing from the contrary conclusion reached by the Tribunal ?\n\nBefore we proceed further, we will read section 15C as it stood during the material time :\n\n•..\n\n~-···\n\n\"15C. Exemption from tax of newly established industrial undertakings.\n\n( 1) Save as otherwise hereinafter provided, the tax shall not be payable by an assessee on so much of the profits or gains derived from any indsutrial undertaking to which this section applies as do not exceed six per cent per annum on the capital employed in the undertaking computed in accordance with such rules as may be made in this behalf by the Central Board of Revenue.\n\n(2) This section applies to any industrial whichundertaking\n\n(i) is not formed by the splitting up, or the reconstruction of, business already in existence or by the transfer to a new business of building, machinery or plant, previously used in any other business;\n\n(ii) has begun or begin~ to manufacture or producs\n\narticle~ in any part of taxable territories at any time within a period of thirteen years from tht\n\n1st day of April 1948, or uch further period\n\na~ the Central Government may, by notificatioa in the Oflicial Gazetto, ity with reference any particular indutrial undertaking;\n\n(iii) employs ten or more worker~ in a manufacturing proce~~ carried on with the aid of power, or employ~ twenty or more workers ill a manufacturin1 proeces carried on without the aid of power;\n\n..... J\n\nI .\n\nProvided that the Central Government may, by !!.otiea~ tion in the Official Gazette, direct that the exemption collferred by thi~ section shall not apply to any particular iDdustrial lilndortaking.\n\n-.. /\n\n0 TEXTIL~ MACH. OOR;. v. COMM .. OF~-~·· (Goswami,/.) 767\n\n(3)\n\n(4)\n\nThe profits or gains of an industrial undertakig .to which this section applies shall be computed . in accordance with the provisions of section 10.\n\nThe tax shall not be payable by a shareholder in respect of so much of any dividend paid or. deemed to be paid to him by an industrial undertaking as is attributable to that part of the profits or gains on which the tax is not payable under this section.\n\n(5) Nothing in this section shall affect the application of\n\nsection 23A iri relation to the profits or gains of an industrial undertaking to which this section_ applies.\n\n(6) The provisions of this section shall apply to the assessment for the financial year next following the previous year in which the assessee begins to manufacture or produce articles and for the four asessments immediately succeeding''.. ·\n\nWe are principally concerned in these appeals with clause (i) of sub-section (2) of section 1 SC and that also only with one part of it, namely, whether the industrial undertakings, Steel Foundry and the Jute Mill Division, are not formed by the reconstruction of the business already in existence.\n\nThe learned Additional Solicitor General submits that these two undertakings are not entitled to exemption under section 15C(2) as rightly so held by the High Court since they were formed by the reconstruction of the assessee's business already in existence, namely, the business of heavy engineering.\n\nHe submits that setting up of a separate unit to do something in the course of pre-existing manufacturing process to aid the production of the same article as was being produced by the pre-existing industrial undertaking would not amount to starting of a new industrial undertaking.\n\nHe further emphasises i that production of the articles in the S:eel Foundry and in the Jute '------ Mill Division is only ancillary activity to the main business of the assessee and since the articles produced in these two supplemental undertakings help in producing the identical article which has been the end-product of the assessee's main business, section 15C(2) (i) cannot come to the aid of the assessee.\n\nAccording to Mr. Raman these two industrial undertakings cannot be said to be not formed out of the reconstruction of the business already in existence.\n\nSection 15C(2) (i) only excludes three categories of indutrial undertakings from the benefit of the section without referring to clauses\n\n(ii) and (iii) of that sub-section and other limiting provisions of the section which are not applicable in the instant case.\n\nIt is contended by Mr. Palkhivala that acceptance of the Additional Solicitor General's submission will amount to adding a fourth category of cases in sub-section (2) (i), namely, an industrial under-\n\nE .\n\nSUPREME COURT REPORTS (1977] 2 S.C.ll.\n\ntaking which is an ancillary undertaking manufacturing certain articles to supplement the principal industrial activity.\n\nThis, says Mr.\n\nPalkhivala, will be adding something to the section.\n\nSection 15C is an exemption section.\n\nThe benefit granted under this section is a partial benefit so far as the quantum of the exempted profi, s of the new industrial undertaking as also for a limited period or periods as specified in the section. If the two industrial undertakings, about the existence of which there can be no controversy as found by the Tribunal, cannot be held to be formed by the reconstuction of the business already in existence, the benefit of section 15C will be available to the assessee.\n\nThe principal object of section 15C is to encourage setting up of new industrial undertakings by offering tax incentive within a period of 13 years from April 1, 1948. Section 15C provides for a fractional. exemption from tax of profits of a newly established undertaking for five assessment years as specified therein.\n\nThis section was inserted in the Act in 1949 by section 13 of the Taxation Laws (Extensio11 to Merged States and Amndment) Act, 1949 (Act 67 of 1949) extending the benefit to the actual manufacture or production of articles commencing from a prior date, namely, April 1, 1948. After the country had gained independence in 1947 it was most essential to give fillip to trade and industry from all quarters. That seems to be the background for insertion of section 15C.\n\nIt is also significant that the limit of the number of years for the purpose of claiming exemption has been progressively raised from the initial 3 years in 1949 to 6 years in 1953, 7 years in 1954, 13 years in 1956 and 18 years in 1960. The incentive introduced in 1949 has been thus stepped up ever since and the only object is that which we have already mentioned.\n\nUnder sub-section (1) of section 15C the tax shall not be payable by an assessee on profits not exceeding six per cent per annum on the capital employed in the new industrial undertaking from the profits of which alone exemption is claimed.\n\nSub-section (2) of section _ __) 15C has a negative as well as a positive aspect.\n\nNegatively, the new industrial undertaking of the assessee should not be formed-\n\n( 1) by the splitting up of the business already in existence,\n\n(2) by the reconstruction of business already in existence, or\n\n(3) by the transfer to a new business of building, machinery or plant used in a business which was being carried on before April 1, 1948.\n\nWe agree that it is not possible to exclude any new industrial undertaking other than the three categories mentioned above.\n\nWe are concerned in these appeals with the type No. (2) mentioned above. Positively, the new industrial undertaking must pro- .duce result, that is to say, it has to manufacture or produce articles .at any time within a period of 13 years from April 1, 1948.\n\nThe further requirement under sub-section (2) is with regard to the per- .sonnel in the undertaking, namely, that ten or .more workers have to work in the manufacturing process carired on wich the aid of power or twenty or more workers have to carry on work without the aid of , power.\n\nThe above element with regard to the number of workers engaged in the undertaking would go to show that even small industrial undertakings, newly started, are within the exemption clause, where, for example, twenty workers may complete the industrial pro- cess without the aid of power.\n\nThere is no controversy about the positive aspects in these appeals.\n\nAgain, the new undertaking must not be substantially the same old existing business.\n\nThe third excluded category mentioned above is significant.\n\nEven if a new business is carried on but by piercing the veil of the new business it is found that there is employment of the '.assets of the old business, the benefit will be not available.\n\nFrom this it clearly follows that substantial investment of new capital is imperative.\n\nThe words \"the capital employed\" in the principal clause of section rsc are significant, for fresh capital must be employed in the new undertaking claiming exemption.\n\nThere must be a new under- taking where substantial investment of fresh capital must be made in order to enable earning of profits attributable to that new capital.\n\nThe assessee continues to be the same for the purpose of assessment. It has its existing business already liable to tax.\n\nIt produced in the two concerned undertakings commodities different from those -which it has been manufacturing or producing in its existing business.\n\nManufacture of production of articles yielding additional profit attributable to the new outlay of capital in a separateand distinct unit is the heart of the matter, to earn benefit from the exemption of tax ; liability under section 15C. Sub-section (6) of the section also points to the same effect, namely, production of articles.\n\nThe answer, in i every particular case depends upon the peculiar faets and conditions '- . of the new industrial undertaking on account of which the assessee\n\n; ,\n\n' claims exemption under section 15C.\n\nNo hard and fast rule can be laid down.\n\nTrade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments.\n\nThere is great scope for expansion of trade and industry.\n\nThe fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under section 15C.\n\nEvery new creation in business is some kind of expansion and advancement.\n\nThe true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business.. No particular decision in one case can iay down an inexorable test to deterffiine whether a given case comes under section 15C or not .. In order that the new undertaking ; can be said to be not formed out of the already existing business, there\n\n770 SUPREM~ toURT 1rnPO!tTS [1977]' 2•s.C.R.\n\nmust be a new emergence of a physically separate industrial unit i>hich\n\nmay exist on its own as a viable unit.\n\nAn undertakings is formed out of the existing business if the physical identity with the old unit is preserved.\n\nThis has not happened here in the case of the two under;. takings which are separate and distinct.\n\nIt is clear that the principal business of the assessee is heavy engineering in the course of which it manufactures boilers, wagons, etc. If an industrial undertaking produce certain machines or parts which are, by themselves, identifiable m:::s being marketable commodities and the undertaking can exist even after the cessation of the principal business of the assessee, it cannot be anything but a new and separate industrial un.dertaking to qualify for appropriate exemption under section 1 SC.\n\nThe principal business of the assessee can be carried on even if the said two additional undertakings cease to function.\n\nAgain, the converse is also true.\n\nThe fact that the articles produced by the two undertakings are used by the Boiler Division of the assessee will not weigh against holding that these are new and separate undertakings.\n\nOn the other hand the fact that a portion of the articles produced in these two new industrial undertakings had been sold in the open market to others is a circumstance in favour of the assessee that the new industrial units can function on their own.\n\nUse of the articles by the assessee is not decisive to deny the benefit of section 1 SC. .• Section 15C partially exempts from tax a new industrial unit which is separate physically from the old one, the capital of which and the profits thereon are ascertainable.\n\nThere is no difficulty to hold that .section l SC is app_licable to an absolutely new undertaking for the first time started by an assessee.\n\nThe cases which give rise to controversy are those where the old business is being carried on by the assessee and a new activity is launched by him by establishing new plants and machinery by investing . substantial funds.\n\nThe new activity may produce the same commodities of the old business or it may produce some ether distinct marketable products, even commodities which may feed the old business.\n\nThese products may be con- ..i.. ,,, sumed by the assessee in his old business or may be sold in the open ,. market.\n\nOne thing is certain that the new undertaking must be an _) integrated unit by itself wherein articles are produced and at least a ; minimum of ten persons with the aid of power and a minimum of twenty persons without the aid -of power have been employed.\n\nSuch a new industrially recognisable unit of an assessee cannot be said to be reconstruction of his old business since there is no transfer of any assets of the old business to the new undertaking which takes place when there is reconstruction of the .old business.\n\nFor the purpose of section 1 SC the industrial units set up must be new in the ense that new plants and machinery are erected for producing either the same commodities or some distinct commodities. In order to deny the benefit of section 1 SC the new undertaking must be formed by reconstruc'ion of the old business.\n\nNow in the instant case there is no formation of any industrial undertaking out of the existing business since that can take place only when the assets of the old business are tnmsferred substantially to the new undertaking.\n\nThere is no such transfer of assets in the two cases with which we are concerned.\n\nTEXTILE MACH. CORP. v. COMM. OF I.T. (Goswumi, J.) 771\n\nWe will now deal with the question whether the two undertakings A of the assessee are formed by reconstruction of the existing business.\n\nThe word 'reconstruction' is not defined in the Act but has received judicial interpretation. In re South African Supply and Cold Storage Company, Wild v. Sarne Company('), Buckley, J. dealing with the meaning of the word 'reconstruction' in a company matter observed as follows:-\n\n\"What does 'reconstruction' mean?\n\nTo my mind it means this.\n\nAn undertaking of some deffnite kind is being carried on, and the conclusion is arrived at that it is not clesirnble to kill that undertaking, but that it is desirable to preserve. it in some form, and to do so, not by selling it to an outsider who shall carry it on-that would be a mere sale-but in some altered form to continue the undertaking in such a manner as that the persons now carrying it on will substantially continue to carry it on.\n\nIt involves, I think, that substantially the same business shall be carried on and substantially the same persons shall carry it on.\n\nBut it docs not involve that all the assets shall pass to the new company or resuscitated company, or that all the shareholders of the old company shall be shareholders in the new company or resuscitated company.\n\nSubstantially the business and the persons interested must be the. same\".\n\nThis concept of reconstruction was accepted by the Bombay High Court in the Commissioner of Income-tax, Bombay City-I v. Gaekwar.\n\nFoam aiul Rubber Co. Ltd.('), dealing with section l SC of the Act.\n\nWhile adverting to the passage which we have just quoted the Bombay High Court observed as follows in the above decision :\n\n\"Now fully appreciating the distinction which counsel for the Revenue has sought to make between the case of a reconstruction of a company and the case of reconstruction of a business, these observations, as we read them, a're equally illuminating in the context of reconstruction of business already in existence in the case of a newly established industrial undertaking\" .\n\n. The Delhi Higµ Court also in Commissioner of Income-tax v.\n\nGanga Sugar Corporation Ltd. (3), accepted the above concept of 'reconstruction' in the following passage:- ·\n\n\"We have given the matter our earnest consideration and are of the view that in the reconstruction of business, as in the reconstruction of a company, there is an element of transfer of assets and of some change, however Dartial or restricted it may be, of ownership of the assets. - The transfer, however, need not. be of all the assets, It is none the less imperative that there should be continuity and preservation of the old undertaking though in an altered form, -o)r19041 2 ch, 26s.\n\n(2) 35 T.T.R. 662.\n\n(3) 92 T.T.R. 173.\n\nSUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nThe concept of reconstruction of business would not be attracted when a company which is already running one industrial unit sets up another industrial unit.\n\nThe new industrial unit would not los~ its separate and independent identity even though it has been set up by a company which is already running an industrial unit before the setting up of the new unit\".\n\nWe endorse the above views with regard to reconstruction of business.\n\nReconstruction of business involves the idea of substantially the same persons carrying on substantially the saine business.\n\nIt is stated on behalf of the Revenue that the same company in the instant case\n\n..JI continues to do the same business of heavy engineering-no matter '1111111111 C certain spare parts neccssaty as components to completion of the cndproduct are now manufactured in the business itself.\n\nThe fact that the assessee is carrying on the general business of heavy engineering will not prevent him from setting up new industrial undertakings and from claiming benefit under section 15C if that section is otherwise applicable.\n\nHowever, in order to be entitled to the benefit under section 15C, the following facts have to be established by the assesscc, D subject always to the time-schedule in the section :-\n\n( 1) investment of substantial fresh capital in the industrial undertaking set up, -\n\n( 2) employment of requisite labour therein,\n\n(3) manufacture or production of articles in the said undertaking,\n\n( 4) earning of profits clearly attributable to the said new undertaking, and\n\n( 5) above all, a separate and distinct identity of the industrial unit set up.\n\nWe may add that there is no bar to an assessee carrying on a particular business to set up a new industrial undertaking on account of ·...,.., which exemption of tax under section 15C may be claimed.\n\nThe legislature has advisedly refrained from inserting a definition of the word 'reconstruction' in the Act.\n\nIndeed, in the infinite variety of instances of restructuring of industry in the course of strides in technology and of other developments, the question has to be left for decision on the peculiar facts of each case.\n\nIf any undertaking is not formed by reconstruction of the old business that ungertaking will not be denied the benefit of section\n\n15C simply because it goes to expand the general business of the assessee on some directions.\n\nAs in the instant case, once the new industrial undertakings are separate and independent production units in the sense that the commodities produced or the results achieved are commercially tangible products and the undertakings can be carried on\n\n\"' I\n\n:separately without complete absorption and l?sing their identity in the old business, they are not to be treated as bemg formed by reconstruction of the old business.\n\nThe business of the assessee is of heavy engineering. The two ; new undertakings are independently producing articles which ruay be of aid to the principal business but yet the undertakings are distinct and not reconstruction out of the existing business of the assessee. -Use by the assessee of the articles produced in its existing business or the concept of expansion are not decisive tests in construing section lSC. The High Court is--not right in holding the two undertakings .as formed by reconstructiori of the existing business of the assessee.\n\nSeveral decisions have been cited at the bar before us.\n\nWe -approve of the conclusions in Commissioner of Income-tax v. Ganga .Sugar Corporation Ltd. ·(supra); Rajeswari Mills Ltd. v.\n\nCommissioner of income-tax, Madras('); Nagardas Bechardas & Brothers P Ltd. v. Commissioner of Income-tax Gujarat (2); Commissioner of Income-tax, West Bengal-I v. Electric Construction and Equipment Company Ltd. (3); Commissioner of Income-tax v.\n\nHindusthan Motors Limited ( 4). The decision in Commissioner of Income-tax\n\nv. Naya Sahitya(') does not represent the correct legal position and, hence, cannot be approved.\n\nWe may observe that we are not required to consider in these .appeals how profit will be actually _ calculated in order to determine the quant\\Uil of exemption of six per cent of the profit on the capital\n\nmployed. If difficulties are insurmountable and; therefore, profit -cannot be ascertained, that wiH -be a different question in the course -of -practical application of the section.\n\nThat kind of a possible difficulty should not weigh in the true construction of section lSC. In ihe present case the assessee claimed profit and there Was no difficulty -about ascertainment of the exempted profit as separate books of accounts were kept and the undertakings were at separate places.\n\nIn view of the foregoing discussion, we are clearly of opinion that the igh Court i~ not right in answering the two questions in the -negative and agamst the assessee_.\n\nOn the other hand the Tribunal was right in answering the two questions in the affirmative and against the Department.\n\nThe two questions referred stand answred in the -affirmative.\n\nThe judgment of-the High Court, is, therefore set aside and the appeals are allowedwith costs. - . . , ' •\n\n- . -\n\n:P.B.R.\n\nAppeals allowed.\n\n(1) 50 lT.R. 29.\n\n(2) 104 lT.R. 255. ·(3) 104 :1'r:R. 101.\n\n(4) (1976] Taxation Law Reports. 821.\n\n(5) 84 I.T.R. :67.", "total_entities": 75, "entities": [{"text": ":::TILE MAllNERY CORPORATION UMITED, CALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "TEXTILE MACHINERY CORPORATION LIMITED, CALCUTTA", "offset_not_found": false}}, {"text": "II\n\nTHE COMJ.\\USSIONER OF INCOME-TAX, WEST BENGAL,\n\nCALCUTTA", "label": "RESPONDENT", "start_char": 48, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME-TAX, WEST BENGAL, CALCUTTA", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 129, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 143, "end_char": 156, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "P. S. KAILASAM, JJ.", "label": "JUDGE", "start_char": 161, "end_char": 180, "source": "metadata", "metadata": {"canonical_name": "P.S. KAILASAM", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 185, "end_char": 212, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 15C(2)", "label": "PROVISION", "start_char": 213, "end_char": 222, "source": "regex", "metadata": {"linked_statute_text": "Indian Income-tax Act, 1922", "statute": "Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act 1922", "label": "STATUTE", "start_char": 357, "end_char": 383, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(i)", "label": "PROVISION", "start_char": 483, "end_char": 490, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "s. 15C", "label": "PROVISION", "start_char": 1010, "end_char": 1016, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "s. 15C", "label": "PROVISION", "start_char": 2263, "end_char": 2269, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15C", "label": "PROVISION", "start_char": 4236, "end_char": 4242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15C", "label": "PROVISION", "start_char": 4576, "end_char": 4582, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15C", "label": "PROVISION", "start_char": 5034, "end_char": 5040, "source": "regex", "metadata": {"statute": null}}, {"text": "Commissioner of Income-tax Bombay City-I v. Gackwar Foam and Rubber Co. Ltd. 35 ITR 662", "label": "RESPONDENT", "start_char": 6088, "end_char": 6175, "source": "ner", "metadata": {"in_sentence": "Commissioner of Income-tax Bombay City-I v. Gackwar Foam and Rubber Co. Ltd. 35 ITR 662, Commi.sioner of Income-tax v. Ganga Sugar Corpora- • tion Ltd. 92 ITR 17~, Rajowari Mill\" Ltd. v. Commissioner of Income-tax \"-1- Mairas, 50 ITR 2,, N11.garda."}}, {"text": "N. A. Palkhival11", "label": "PETITIONER", "start_char": 6913, "end_char": 6930, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' '"}}, {"text": "D.. Pal", "label": "LAWYER", "start_char": 6936, "end_char": 6943, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' '"}}, {"text": "U. K. Khaitan", "label": "LAWYER", "start_char": 6945, "end_char": 6958, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' '"}}, {"text": "S. R. Agarwal", "label": "LAWYER", "start_char": 6960, "end_char": 6973, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' '"}}, {"text": "H :Par.v.een Kumar", "label": "LAWYER", "start_char": 6978, "end_char": 6996, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhival11, Dr. D.. Pal, U. K. Khaitan, S. R. Agarwal and H :Par.v.een Kumar for the Appellant. . ' '"}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 7054, "end_char": 7072, "source": "ner", "metadata": {"in_sentence": "Sol: Gnual; T. A. Ramachandran and R. fl: Sachthey for ihe llcepondente. . , . , , .. ,"}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 7214, "end_char": 7221, "source": "ner", "metadata": {"in_sentence": "R.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J.\n\nThese two appeals by certificate are from the Judgment of the Calcutta High Court since reported in Commi.1sioner of Income-tax, West Bengal-I v. Textile Machinery Corporation(')."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 7289, "end_char": 7308, "source": "ner", "metadata": {"in_sentence": "R.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J.\n\nThese two appeals by certificate are from the Judgment of the Calcutta High Court since reported in Commi.1sioner of Income-tax, West Bengal-I v. Textile Machinery Corporation(')."}}, {"text": "section 15C", "label": "PROVISION", "start_char": 7605, "end_char": 7616, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7624, "end_char": 7651, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 66", "label": "PROVISION", "start_char": 7734, "end_char": 7744, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 15C", "label": "PROVISION", "start_char": 7980, "end_char": 7991, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7999, "end_char": 8026, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 15C", "label": "PROVISION", "start_char": 8236, "end_char": 8247, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Indian Incometax Act, 1922", "label": "STATUTE", "start_char": 8255, "end_char": 8281, "source": "regex", "metadata": {}}, {"text": "cl11", "label": "PROVISION", "start_char": 8511, "end_char": 8515, "source": "regex", "metadata": {"linked_statute_text": "the Indian Incometax Act, 1922", "statute": "the Indian Incometax Act, 1922"}}, {"text": "section 15C", "label": "PROVISION", "start_char": 8543, "end_char": 8554, "source": "regex", "metadata": {"linked_statute_text": "the Indian Incometax Act, 1922", "statute": "the Indian Incometax Act, 1922"}}, {"text": "Incometax Appellate Tribunal", "label": "COURT", "start_char": 10011, "end_char": 10039, "source": "ner", "metadata": {"in_sentence": "The Incometax Appellate Tribunal, however, allowed the appeal of the assessee and accepted the claim for exemption under section 1 SC."}}, {"text": "section 1", "label": "PROVISION", "start_char": 10128, "end_char": 10137, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C(2)", "label": "PROVISION", "start_char": 11040, "end_char": 11054, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 12861, "end_char": 12870, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C(2)", "label": "PROVISION", "start_char": 13235, "end_char": 13249, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 13706, "end_char": 13717, "source": "regex", "metadata": {"statute": null}}, {"text": "1st day of April 1948", "label": "DATE", "start_char": 14640, "end_char": 14661, "source": "ner", "metadata": {"in_sentence": "(2) This section applies to any industrial whichundertaking\n\n(i) is not formed by the splitting up, or the reconstruction of, business already in existence or by the transfer to a new business of building, machinery or plant, previously used in any other business;\n\n(ii) has begun or begin~ to manufacture or producs\n\narticle~ in any part of taxable territories at any time within a period of thirteen years from tht\n\n1st day of April 1948, or uch further period\n\na~ the Central Government may, by notificatioa in the Oflicial Gazetto, ity with reference any particular indutrial undertaking;\n\n(iii) employs ten or more worker~ in a manufacturing proce~~ carried on with the aid of power, or employ~ twenty or more workers ill a manufacturin1 proeces carried on without the aid of power;\n\n..... J\n\nI ."}}, {"text": "Central Government", "label": "ORG", "start_char": 14693, "end_char": 14711, "source": "ner", "metadata": {"in_sentence": "(2) This section applies to any industrial whichundertaking\n\n(i) is not formed by the splitting up, or the reconstruction of, business already in existence or by the transfer to a new business of building, machinery or plant, previously used in any other business;\n\n(ii) has begun or begin~ to manufacture or producs\n\narticle~ in any part of taxable territories at any time within a period of thirteen years from tht\n\n1st day of April 1948, or uch further period\n\na~ the Central Government may, by notificatioa in the Oflicial Gazetto, ity with reference any particular indutrial undertaking;\n\n(iii) employs ten or more worker~ in a manufacturing proce~~ carried on with the aid of power, or employ~ twenty or more workers ill a manufacturin1 proeces carried on without the aid of power;\n\n..... J\n\nI ."}}, {"text": "section 10", "label": "PROVISION", "start_char": 15437, "end_char": 15447, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 15767, "end_char": 15778, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 16205, "end_char": 16214, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C(2)", "label": "PROVISION", "start_char": 16534, "end_char": 16548, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C(2)", "label": "PROVISION", "start_char": 17362, "end_char": 17376, "source": "regex", "metadata": {"statute": null}}, {"text": "Raman", "label": "OTHER_PERSON", "start_char": 17439, "end_char": 17444, "source": "ner", "metadata": {"in_sentence": "According to Mr. Raman these two industrial undertakings cannot be said to be not formed out of the reconstruction of the business already in existence."}}, {"text": "Section 15C(2)", "label": "PROVISION", "start_char": 17576, "end_char": 17590, "source": "regex", "metadata": {"statute": null}}, {"text": "Palkhivala", "label": "LAWYER", "start_char": 17864, "end_char": 17874, "source": "ner", "metadata": {"in_sentence": "It is contended by Mr. Palkhivala that acceptance of the Additional Solicitor General's submission will amount to adding a fourth category of cases in sub-section (2) (i), namely, an industrial under-\n\nE .", "canonical_name": "Palkhivala"}}, {"text": "Palkhivala", "label": "LAWYER", "start_char": 18226, "end_char": 18236, "source": "ner", "metadata": {"in_sentence": "This, says Mr.\n\nPalkhivala, will be adding something to the section.", "canonical_name": "Palkhivala"}}, {"text": "Section 15C", "label": "PROVISION", "start_char": 18280, "end_char": 18291, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 18749, "end_char": 18760, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 18821, "end_char": 18832, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1948", "label": "DATE", "start_char": 18950, "end_char": 18963, "source": "ner", "metadata": {"in_sentence": "The principal object of section 15C is to encourage setting up of new industrial undertakings by offering tax incentive within a period of 13 years from April 1, 1948."}}, {"text": "Section 15C", "label": "PROVISION", "start_char": 18965, "end_char": 18976, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 19166, "end_char": 19176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 19572, "end_char": 19583, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 19980, "end_char": 19991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 22920, "end_char": 22931, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 23218, "end_char": 23229, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 23658, "end_char": 23669, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 24099, "end_char": 24110, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 25088, "end_char": 25097, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 25774, "end_char": 25783, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15C", "label": "PROVISION", "start_char": 25791, "end_char": 25802, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 27171, "end_char": 27180, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 27382, "end_char": 27391, "source": "regex", "metadata": {"statute": null}}, {"text": "Buckley", "label": "OTHER_PERSON", "start_char": 28146, "end_char": 28153, "source": "ner", "metadata": {"in_sentence": "In re South African Supply and Cold Storage Company, Wild v. Sarne Company('), Buckley, J. dealing with the meaning of the word 'reconstruction' in a company matter observed as follows:-\n\n\"What does 'reconstruction' mean?"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 29238, "end_char": 29255, "source": "ner", "metadata": {"in_sentence": "This concept of reconstruction was accepted by the Bombay High Court in the Commissioner of Income-tax, Bombay City-I v. Gaekwar."}}, {"text": "Foam aiul Rubber Co. Ltd.", "label": "RESPONDENT", "start_char": 29318, "end_char": 29343, "source": "ner", "metadata": {"in_sentence": "Foam aiul Rubber Co. Ltd.('), dealing with section l SC of the Act."}}, {"text": "Delhi Higµ Court", "label": "COURT", "start_char": 29893, "end_char": 29909, "source": "ner", "metadata": {"in_sentence": "The Delhi Higµ Court also in Commissioner of Income-tax v.\n\nGanga Sugar Corporation Ltd. (3), accepted the above concept of 'reconstruction' in the following passage:- ·\n\n\"We have given the matter our earnest consideration and are of the view that in the reconstruction of business, as in the reconstruction of a company, there is an element of transfer of assets and of some change, however Dartial or restricted it may be, of ownership of the assets. -"}}, {"text": "SUPREME COURT REPORTS\n\n[1977) 2 S.C.R.", "label": "COURT", "start_char": 30591, "end_char": 30629, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n[1977) 2 S.C.R.\n\nThe concept of reconstruction of business would not be attracted when a company which is already running one industrial unit sets up another industrial unit."}}, {"text": "section 15C", "label": "PROVISION", "start_char": 31661, "end_char": 31672, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 31769, "end_char": 31780, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15C", "label": "PROVISION", "start_char": 32431, "end_char": 32442, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n15C", "label": "PROVISION", "start_char": 32910, "end_char": 32922, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_2_774_781_EN", "year": 1977, "text": "STATE OF ORISSA & ANR. v.\n\nN. N. SWAMY & ORS. ETC.\n\nJanuary 27, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nConstitution of India, Article 16-Private college taken over by State Governmem-Absorption of stafj--Consideration of eligibility for appointmelll as Readers-Differentiation betwun similarly situated Readers on ground of drawing salary of Rs. 600/- or more on date of take over, whether a111011111s to denial of equal opporllmity for employmelll under Art. 16.\n\nThe respondents were working as Readers in Khallikote College, a private: institution which was taken over by the Orissa Government on March 9, 1971.\n\nA Government circular containing conditions governing taking over the services of the teaching staff of Khallikote College, was issued on March 23, 1971, whereby the respondents were appointed as. lecturers in class II temporarily on ad hoc basis for a period of six months. At the end of this period, the names of those. Readers who were drawing a salary of Rs. 600/- or more per month on the date of take-over, were recommended to the Public Service Commission for the determination of their suitability for appointment as Readers.\n\nThe respondents and others who were drawing less than Rs. 600/- were not considered eligible for such recommendation.\n\nTheir writ petition against the deniat of equal opportunity under Art. 16 was accepted by the High Court.\n\nDismissing the appeals by special leave the Court,\n\nHELD:-The condition of drawing of Rs. 600/- or more on the date of takinii over, wlaich has been laid down in the circular as a particular qualification for eligibility for appointment as Reader and later for consideration of their suitability by the Public Service Commission for appointment as Reader, is arbitrary and discriminatory.\n\nIt has no nexus with the object underlying the qualification test in an educational institution having regard to the most essential cendition of intrinsic quality and efficiency of the teachers, and results in denial of equal opportunity to the respondents in the, matter of employment' under the Government under Art. 16 of the Constitution. [719 C-D, F-G]\n\nThe General Manager Southern Railway v. Rangachari [1962] 2 SCR 586;. referred.\n\nSmt. Juthika Bhattacharya v. The State of Madhya Pradesh and Otiiers: [1976] sec 96, distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1357-58 of 1975.\n\n(Appeals by special leave from the judgment and order dated 4-2-1974 of the Orissa High Court in 9.J.C. No. 410/1971).\n\nM. K. Ramamurthi and B. Parthasarathi, for the appellants.\n\nGobind Das, N. V. Rama Das and G. Narayana Rao, for respondents 1-8 in CA 1357/75.\n\nThe Judgment of the Court was delivered by\n\nGoswAMI, J.-These appeals by special leave are directed against the judgment of the Orissa High Court of February 4, 1974.\n\nThere was a private college known by the name of Khallkotei College. This is an institution which grew out of a school establtshed\n\n• t-\n\n' .,.\n\n.... ,.\n\n/ ......\n\n• .•·\n\n'in 1856.\n\nThei management had to meet with financial cns1s 111 the A past and obtained financial help iri the shape of liberal endowment under a trust deed froni the then zamindar of Khallikote. The institu- .tion, it is stated, became one of .the premier colleges in the town of . Behrampur, Ganjam District, Orissa. The College was at first affiiiated to the Andhra- University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University.\n\nThe Government of Orissa took over the management of the College on and from March 9, 1971, and a formal agreement was executed between the managing committee of the College and the Governor of the State.\n\nThe College was taken over by the Government in pursuance of the unanimous resolution of the nianaging committee of February 18, 1970, and the transfer to the Government was C of all the assets of the College but without any liability. The managing committee continued to be liable for the outstanding liabilities, if any, of the College for which Government was not liable, The College after the take over was .\"administered as a Government College. ·\n\nThe eight writ petitioners in the High Court (Respondents' herein) were working as Readers in different faculties in the said College .on the date of the aforesaid transfer in the scale of pay Rs. 510-· 860/- whereas the Government scale for Reaaets was Rs. 600- 1000/-. On the date of take over, namely, March 9, 1971, each of the respondents was drawing a salary somewhere less than Rs. 600/-; three of them less by only Rs. 30/-.\n\nThe material particulars of the ten Readers of the College who were all earlier in private employment, including the eight Respon- <dents, are as follows (Annexure I, Volume II of the Paper Book) :\n\n:SI.\n\nName Date of Date of Date of Col)firmed Pay as on No.\n\nBirth Ist promoas 9-3-1971 appoint ti on (date of ment take over)\n\nl. Sri N. N. Swamy 18-3-34 21-7-58 1-12-68 Reader Rs. 570/-\n\n2. Sri N. Satapathy 6-9-33 July'59 27-1-70 Reader Rs. 540/_\n\n3. Sri P. Haridas 10-3-36 25-10-61 25-10-69 Lecturer Rs. 540/- :4. Sri J.J. Rao 16-3-36 7-7-59 1-7-68 Reader Rs . 540/-\n\n5. Sri K.C. Samantra 5-7-70 Lecturer All the posts are permanent '6. Sri G.J. hineswar .\n\nRao 30-9-31 3-9-57 1-10-67 Reader Rs. 570/-\n\n7. Sri Ch. Chandra Sekhar Patro . 1-7-35 1-8-58 1-1-57 Reader Rs. 570/-\n\n8. Sri Narayana Behera 1-10-37 2-8-62 13-9-70 Lecturer Rs. 510/.\n\n9. Sri T.K. Satyanmurty 1~-9-27 1-7-49 4-5-59 Reader Rs. 660/-\n\n10. Sri V.S.R. Gupta 28-12-30 1-7-52 4-9-69 Lecturer Rs. 600/-\n\nD -\n\nIt will appear that five Respondents out of eight were confirme~ as Readers prior to the take over. Three Respondents were confirme~ as Lecturers but were promoted as Readers prior to the transfer of the College.\n\nThe last two Readers in the list who were lucky to draw salary of the amount of Rs. 660/- and Rs. 600/- respectively as on the date of take over, were treated differently by the Government from the eight Respondents on the sole ground that they were drawing as Reader salary of more than Rs. 600/-. It is rather poignant that the tenth Reader in the list was only a confirmed Lecturer \\\\hereas, as. already shown, five of the Respondents were confirmed Readers al-· though drawing salary less than Rs. 600/-.\n\nOn July 36, 1970, the Government prescribed qualifications for appointment as a Reader by a Circular of that date addrcs, ed to the Director of Public Instructions (Higher Education) Orissa, which appears to supersede the earlier circulars on the subject. It was stated in that circular that the \"Government have been pleased to order that following principles shall henceforward be followed in the appointment of Readers, namely,\n\n(a) no officer who has not had at least 8 years of teaching experience as a Lecturer would be eligible for consideration; and\n\n(b) the post of Reader shall originally be filled. up by promotion subject to the satisfactory performance and conduct of the officer as a lecturer\" .\n\nOn March 23, 1971, the Government issued a circular containing conditions governing taking over the services of the teaching staff of the College.\n\nParas 4 and 5 of that circular, which are material for our purpose, may be quoted :\n\n\"4. Tlie State Government shall offer ad hoc appointment to all staff inposition on the date of take over subject to para 5, and sub-para (d) of this paragraph for a period not exceeding six months in each case, treating all such staff as fresh entrants to Government service. The final absorption of such staff in Government service shall be subject to the following conditions:\n\nx x x x x\n\n(b) That after termination of services of surplus personnel, the cases of staff retained in Class I and Class II shall be referred to the Orissa Public service Commission! for determination of their suitability to hold posts in Class I or II as the case.!fiay be.\n\nThe services of those who are not found suitable by the P.S.C. (Public Service Commission) shall also be terminated by giving one month's notice in each case. Those found suitable by the Commission shall be finally absorbed in respective Trade of the O.E.S.\n\n(Orissa Education Service) for which they are found\n\nI. ..\n\nsuitable. It is hereby clarified that at the time of reference to the P.S.C. for determination of suitability for appointment as Readers, cases of .Lecturers of Government College, eligible for. appointment as Reader.s shall .also be simultaneously referred to the P.S.C. for consideration against those posts.\n\nx x x x x\n\n(c) While making reference to the P.s.C ....... cases\n\nof those ad hoc Readers who would have been normally entitled to pay of less than Rs. 600/- per month on 9-3-71 by. application of the formula \"minimum of the scale of pay of Readers in force in the Colleges .on the date of their appointment as such by the Ex-Managing Committee plus one. increment in that scale for every completed year of service upto 9-3-71\" would be referred for determination of their suitability for absorption as Lecturers only.\n\nx x x x x '\n\n5. Ad hoc appointment shall be issued to all P.rofessors and such of the Readers in position, who on the date of take-over were in receipt of pay of Rs. 600/- per .month or more, in the scale of pay Rs. 600-1000/- against posts of Readers. Readers who on the date of take over were in receipt of pay of less titan Rs .. 600/7 per month and all lecturers in position on that date shall be given ad hoc appointment against the post of lecturers in the scale of Rs. 260-780/- with effect from the date of .take over\".\n\nx x x x x\n\nBasing on the aforesaid provisions of the above circular the Director of Public Instructions sent .on April 20, 1971, to each of the Respondents appointment. letters wherel:iy they were. appointed as Lecturers in Class II temporarily on ad hoc_ basis for a period of six months with effect from the forenoon of. March 9, 1971, or till the appointment is made in consultation with the Orissa Public Service Commission, whichever is earlier, subject to verification of character and antecediw.ts and production of medical fitness certificate. Appointments were, thus, offered to the Respondents under the terms and conditions of take over which have been already extracted.\n\nThe grievance of the Respondents is that although they had all the requisite qualifications for the appointment as Reader and they were all holding the. posts of Reader before the take over and five qf them were even confirmed Readers but since under the aforesaid terms of H the take over they were drawing .a salary of less than Rs. 600/- on the date of take over, their names were not referred to the Public\n\nService Commission for consideration of their suitability for appointment as Readers in the Government College. It is not disputed that they are otherwise educationally and by experience qualified for the post of Reader. The High Court found that the requirement of eight years of teaching experience, as mentioned above, which is needed for appointment as a Reader is more than amply fulfilled by each of the Respondents.\n\nThe High Court accepted the Writ Petitions and held that the Respondents were entitled to consideration by the Public Service Commission for appointment as Readers and hence these appeals by the State which are confined only to the above question.\n\nIt is submitted by Mr. Ramamurthi on behalf of the appellants that the High Court erred in directing the Government to take into account, as exerience, the service oil the Respondents while they were in the pnvate college since, according to him, the necessary qualification is eight years experience in Class II, Orissa Education Service (0.E.S.). This submission is based on the Orissa Education Service Class I (Recruitment to the College Branch) Rules, 1971, issued on July 19, 1971, produced for the first time in this Court. It is submitted ihat since the Respondents have not completed eight years of service in the O.E.s. Class II (Lecturer's grade) in Government service, they are not entitled to be considered by the Public Service Commission for appointment as Readers.\n\nWe are unable to accept this submission. based on these Rules. These Rules of July 19, 1971, were not produced in the High Court and the reason is obvious that tliese were not relied upon by the State in connection with the appointment of the Respondents as Readers after the College had been taken over by the Government on Mar.::h 9, 1971.\n\nThe argument has, therefore, to be supported on the intrinsic \"strength of the circular of March 23, 1971.\n\nApart from this, there is a stronger reason not to entertain this submission at this stage.\n\nEven in the Special Leave Petition filed by the State on July 15, 1974, there was no mention whatsoever about the aforesaid Rules and necessarily no ground was taken in the F Petition on the basis of these Rules. Being conscious of this position Mr. Ramamurthi filed a Civil Miscellaneous Petition No. 4069 of 1976 before this_Court on April 30, 1976, to urge this additional ground.\n\nAfter' hearing Mr. Ramamurthi we rejected this prayer for urging the additional ground by such a belated application when the High Court had no opportunity to consider the question.\n\nThe only question, therefore, which requires decision ih these appeals is_whether the Respondents were denied equal opportunity under Article 16 of the Constitution in the matter of appointment as Readers under the Government in the manner laid down in t11e circular of March 23, 1971.\n\nTI; e following facts are admitted : The Respondents and two others, namely, T. K.\n\nSatyanmurty (No. 9) and V. S. R. Gupta (No. 10) in the list (Annexure I) were all Readers in the private College, each having put in more than eight\n\n_... ...\n\nORJSSA v. N. N. SWAMY (Goswami, J.) 779\n\nyears of service there as a Lecturer. T. K. Satyanmurty was promoted A as Reader on 4-5-1969 and was drawing Rs. 660/- on the date of taking over.\n\nV. S. R. Gupta was promoted as Reader on 4-9-1969 and was drawing Rs. 600/-, the minimum according to the aforesaid Government circular, on the date of taking over.\n\nHe was not even confirmed as a Reader . but was .only confirmed as a Lecturer.\n\nAmongst the Respondents, N. N.\n\nSwamy (No. 1), N. Satapathy (No. 2), J. J. Rao (Nn. 4), G. J. Chineswar Rao (No. 6) and Ch.\n\nB Chandra Sekhar Patro (No. 7) in the list ( Annexure 1) were confinned as Readers and four of them were promoted even earlier than No. 9 and No. 10. It is .thus clear that the conditiun o[ drawing of Rs. 600/- or more on the date of taking over, which has been laid down in the said circular as a particular qualification for eligibility for appointment as Reader and later for consideration o[ their suitability by the Public Service Commission for appointment as Reader, is arbi- C trary and discriminatory.\n\nThis condition has no nexus, whatever, with the object underlying the qualification test in an educational institution having regard to the most essential condition of intrinsic quality and efficiency of the teachers. It is not unknown that private institutions generally have great handicaps in the matter of finance and oftener the teaching staff in a private college has not the same scales of pay and sometimes even has much lower scales than that of D the Government colleges.\n\nIt is one thing to lay down appropriate educational and intelligibly relevant qualifications for certain posts in a college and also teaching experience of a specified duration but complete ignoration, without valid reason, of the teaching experience of a lecturer in a private college, otherwise qualified, on the sole ground of drawing a particular amount of salary on a particular date cannot be countenanced. T. K. Satyanmurty (No. 9) was promoted as a E Reader while in the private college much later than the four of the Respondents (Nos. 1, 4, 6 and 7 in Annexure I). He happened to draw Rs. 660/- on the date of take over, while the Responde_nts were drawing a little lower pay.\n\nThe former was preferred and given the ad hoc appointment of a Reader and was held as eligible for consideration by the Public Service Commission fer appointment. as Reader and the claims of the Respondents were igncred.\n\nThus even F amongst the Readers in the private college, similarly situated, the only ground for ignoring the claims of the said Respondents was drawing of a lesser pay, even though it may be less by Rs. 30/-, on March 9, 1971. This ground for a most unreasonable differentiation in picking anrl choosing from among~ the employees similiirly situated <Jn an absolutely artificial and irrevant consideration results in denial of equal opportunity to the Respondents in the matter of employment G under the Government under Article 16 of the Constitution.\n\nIt is well-settled that under Article 16(1) of the Constitution matters relating to employment not only mean the initial appointment but also include all matters relating to employment, whether prior or subsequent to the employment and also include promotion, (See The General Manager, Southern Railway v. Rangachari(').\n\n(1)\n\n[1962] 2 SCR 586\n\n2-206SCI /77\n\nOur attention was drawn to a decision of this Court in Smt. luthika Bhattacharya v. The State of Madhya Pradesh and Others('), on behalf ojf the appellants, wherefrom it was pointed out that Government could validly impose comparatively stringent qualifications for posts in schools taken over from private management, since persons there may be appointed without the requisite experience as needed in Government schools.\n\nThat case is entirely different from the present case. There may be no difficulty in accepting the position that Government can screen the teachers at the time of fresh appointment in Government service after taking over any institution from private management.\n\nThe educational qualifications and teaching experience which ma}' be insisted upon may be appropriately stringent having regard to the quality of education which Government intends to impart in the college after taking over the same .from the private management.\n\nIf the quondam private employees in the College did not fulfil the qualifications, experience and other requisite conditions, they may not be eligible for appointment since Government may not undertake to take over all the employees by maintaining the billabong of a status quo a;; te. Such a, position, if taken by the Govern..\"Uent, is consistent with implementation of a correct edm; ation3l policy and will not incur the frown of Article 16 of the Constitution. The question is entirely different when, as in the present case, the Respondents answering the test of educational qualifications, as well as, experience of teaching in a recognised private college are discriminated amongst the very category of Readers on an irrational and illusory consideration.\n\nDenial of an opportunity to these Respondents even for being considered for the post of Reader is clearly violative of Article 16 of the Constitution.\n\nWhen a fairly wall-recognised institution, as in this case, run for more than a century, is completely taken over by the Government for management, it is not merely, taking over the land and buildings, tables and chairs. It has !o tackle, at the same time, a human problem, that is to say, the fate of the teachers and the staff serving that institution.\n\nThe institution, with which we are concerned, was taken over, by consent: -aS a going educational concern and it goes without saying that it must be administered on sound lines having regard to quality, efficiency and progress in all respects. It is understandable that the employees had to join the new service under the Government, for the first time, and so could be, in that sense, fresh entrants. But to say that the teaching experience of the Readers in the pnvate institution is completely effaced to the extent that they will not be even eligible, on the plea of absence of teaching experience in Guvernment service, for consideration for appointment as Readers is a seriously grim issue.\n\nWe feel assured that such an argument had not been c:mvassed by the State it!_ the High1 Court on the basis of the Rules of July 19, 1971, since these Rules came into force after the take over for which a separate circular had already been issued to take care of the special exigency.\n\nAction under the Government circular of March 23, 1971, alone, was in controversy in the High Court. The said circular took recognition of the service in the private college in the case of two\n\n0) [1976J 4 sec 96.\n\n.. f-\n\n. ''*:.\n\n.. 'f\n\nReaders (Nos. 9 and 10 in Annexure I). The only differentia was, therefore, the salary drawn by the Readers on the date of take over.\n\nA That action pased on the salary aspect under the said circular had to stand the test of Article 16 i!lthe High Court, as well as, before us . the argument in favour of complete erasion of the past teaching .experience in the private college, first time presented before us, fails\n\nto take note of the distinction between eligibility and suitability. Eight years' teaching experience in a college and the fulfilment of other\n\nequisite qualifications make a person eligible for appointment as a B Reader, but whether he is suitable for selection for the post is an entirely different matter.\n\nWe are, therefore, clearly of opinion that all the Respondents arc eligible tobe referred to the Public Service Commission for the post of Reader. Their names shall be referred to the Commission, accordingly.\n\nWhether they will be suitable for appointment as Readers will C be a matter entirely for due and proper consideration of the Public 'Senice Commission whose recommendations will be considered by tl; e Government in the matter of final absorption.\n\nThe High Court was right in allowing the above claim in the writ applications. The appeals fail and are dismissed with costs.\n\nM.R.\n\nAppeals dismissed.", "total_entities": 70, "entities": [{"text": "STATE OF ORISSA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA & ANR", "offset_not_found": false}}, {"text": "N. N. SWAMY & ORS. ETC", "label": "RESPONDENT", "start_char": 27, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "N. N. SWAMY & ORS. ETC", "offset_not_found": false}}, {"text": "January 27, 1977", "label": "DATE", "start_char": 52, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "January 27, 1977\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 71, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 111, "end_char": 132, "source": "regex", "metadata": {}}, {"text": "Article 16", "label": "PROVISION", "start_char": 134, "end_char": 144, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 463, "end_char": 470, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Khallikote College", "label": "ORG", "start_char": 728, "end_char": 746, "source": "ner", "metadata": {"in_sentence": "A Government circular containing conditions governing taking over the services of the teaching staff of Khallikote College, was issued on March 23, 1971, whereby the respondents were appointed as."}}, {"text": "March 23, 1971", "label": "DATE", "start_char": 762, "end_char": 776, "source": "ner", "metadata": {"in_sentence": "A Government circular containing conditions governing taking over the services of the teaching staff of Khallikote College, was issued on March 23, 1971, whereby the respondents were appointed as."}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 1344, "end_char": 1351, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 2089, "end_char": 2096, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1962] 2 SCR 586", "label": "CASE_CITATION", "start_char": 2185, "end_char": 2201, "source": "regex", "metadata": {}}, {"text": "sec 96", "label": "PROVISION", "start_char": 2292, "end_char": 2298, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2316, "end_char": 2344, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "M. K. Ramamurthi", "label": "OTHER_PERSON", "start_char": 2504, "end_char": 2520, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and B. Parthasarathi, for the appellants."}}, {"text": "B. Parthasarathi", "label": "OTHER_PERSON", "start_char": 2525, "end_char": 2541, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and B. Parthasarathi, for the appellants."}}, {"text": "Gobind Das", "label": "OTHER_PERSON", "start_char": 2564, "end_char": 2574, "source": "ner", "metadata": {"in_sentence": "Gobind Das, N. V. Rama Das and G. Narayana Rao, for respondents 1-8 in CA 1357/75."}}, {"text": "N. V. Rama Das", "label": "OTHER_PERSON", "start_char": 2576, "end_char": 2590, "source": "ner", "metadata": {"in_sentence": "Gobind Das, N. V. Rama Das and G. Narayana Rao, for respondents 1-8 in CA 1357/75."}}, {"text": "G. Narayana Rao", "label": "LAWYER", "start_char": 2595, "end_char": 2610, "source": "ner", "metadata": {"in_sentence": "Gobind Das, N. V. Rama Das and G. Narayana Rao, for respondents 1-8 in CA 1357/75."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 2692, "end_char": 2699, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGoswAMI, J.-These appeals by special leave are directed against the judgment of the Orissa High Court of February 4, 1974.", "canonical_name": "GoswAMI"}}, {"text": "Khallikote", "label": "GPE", "start_char": 3171, "end_char": 3181, "source": "ner", "metadata": {"in_sentence": "Thei management had to meet with financial cns1s 111 the A past and obtained financial help iri the shape of liberal endowment under a trust deed froni the then zamindar of Khallikote."}}, {"text": "Ganjam District", "label": "GPE", "start_char": 3281, "end_char": 3296, "source": "ner", "metadata": {"in_sentence": "Behrampur, Ganjam District, Orissa."}}, {"text": "Orissa", "label": "GPE", "start_char": 3298, "end_char": 3304, "source": "ner", "metadata": {"in_sentence": "Behrampur, Ganjam District, Orissa."}}, {"text": "Andhra- University at Waltair", "label": "ORG", "start_char": 3349, "end_char": 3378, "source": "ner", "metadata": {"in_sentence": "The College was at first affiiiated to the Andhra- University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University."}}, {"text": "Utkal University", "label": "ORG", "start_char": 3401, "end_char": 3417, "source": "ner", "metadata": {"in_sentence": "The College was at first affiiiated to the Andhra- University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University."}}, {"text": "Behrampur University", "label": "ORG", "start_char": 3464, "end_char": 3484, "source": "ner", "metadata": {"in_sentence": "The College was at first affiiiated to the Andhra- University at Waltair and thereafter to the Utkal University, and since 1967 it has been affiliated to the Behrampur University."}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 3491, "end_char": 3511, "source": "ner", "metadata": {"in_sentence": "The Government of Orissa took over the management of the College on and from March 9, 1971, and a formal agreement was executed between the managing committee of the College and the Governor of the State."}}, {"text": "March 9, 1971", "label": "DATE", "start_char": 3564, "end_char": 3577, "source": "ner", "metadata": {"in_sentence": "The Government of Orissa took over the management of the College on and from March 9, 1971, and a formal agreement was executed between the managing committee of the College and the Governor of the State."}}, {"text": "February 18, 1970", "label": "DATE", "start_char": 3809, "end_char": 3826, "source": "ner", "metadata": {"in_sentence": "The College was taken over by the Government in pursuance of the unanimous resolution of the nianaging committee of February 18, 1970, and the transfer to the Government was C of all the assets of the College but without any liability."}}, {"text": "N. N. Swamy", "label": "RESPONDENT", "start_char": 4915, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "Birth Ist promoas 9-3-1971 appoint ti on (date of ment take over)\n\nl. Sri N. N. Swamy 18-3-34 21-7-58 1-12-68 Reader Rs.", "canonical_name": "N. N. SWAMY & ORS. ETC"}}, {"text": "N. Satapathy", "label": "RESPONDENT", "start_char": 4976, "end_char": 4988, "source": "ner", "metadata": {"in_sentence": "Sri N. Satapathy 6-9-33 July'59 27-1-70 Reader Rs."}}, {"text": "P. Haridas", "label": "RESPONDENT", "start_char": 5037, "end_char": 5047, "source": "ner", "metadata": {"in_sentence": "Sri P. Haridas 10-3-36 25-10-61 25-10-69 Lecturer Rs."}}, {"text": "J.J. Rao", "label": "RESPONDENT", "start_char": 5101, "end_char": 5109, "source": "ner", "metadata": {"in_sentence": "Sri J.J. Rao 16-3-36 7-7-59 1-7-68 Reader Rs .", "canonical_name": "J. J. Rao"}}, {"text": "K.C. Samantra", "label": "RESPONDENT", "start_char": 5158, "end_char": 5171, "source": "ner", "metadata": {"in_sentence": "Sri K.C. Samantra 5-7-70 Lecturer All the posts are permanent '6."}}, {"text": "G.J. hineswar", "label": "RESPONDENT", "start_char": 5224, "end_char": 5237, "source": "ner", "metadata": {"in_sentence": "Sri G.J. hineswar ."}}, {"text": "Ch. Chandra Sekhar Patro", "label": "RESPONDENT", "start_char": 5293, "end_char": 5317, "source": "ner", "metadata": {"in_sentence": "Sri Ch."}}, {"text": "Narayana Behera", "label": "RESPONDENT", "start_char": 5366, "end_char": 5381, "source": "ner", "metadata": {"in_sentence": "Sri Narayana Behera 1-10-37 2-8-62 13-9-70 Lecturer Rs."}}, {"text": "T.K. Satyanmurty", "label": "RESPONDENT", "start_char": 5432, "end_char": 5448, "source": "ner", "metadata": {"in_sentence": "Sri T.K. Satyanmurty 1~-9-27 1-7-49 4-5-59 Reader Rs.", "canonical_name": "T. K.\n\nSatyanmurty"}}, {"text": "V.S.R. Gupta", "label": "RESPONDENT", "start_char": 5497, "end_char": 5509, "source": "ner", "metadata": {"in_sentence": "Sri V.S.R. Gupta 28-12-30 1-7-52 4-9-69 Lecturer Rs.", "canonical_name": "V. S. R. Gupta"}}, {"text": "July 36, 1970", "label": "DATE", "start_char": 6285, "end_char": 6298, "source": "ner", "metadata": {"in_sentence": "On July 36, 1970, the Government prescribed qualifications for appointment as a Reader by a Circular of that date addrcs, ed to the Director of Public Instructions (Higher Education) Orissa, which appears to supersede the earlier circulars on the subject."}}, {"text": "Orissa Public service Commission", "label": "ORG", "start_char": 7756, "end_char": 7788, "source": "ner", "metadata": {"in_sentence": "The final absorption of such staff in Government service shall be subject to the following conditions:\n\nx x x x x\n\n(b) That after termination of services of surplus personnel, the cases of staff retained in Class I and Class II shall be referred to the Orissa Public service Commission!"}}, {"text": "P.S.C. (Public Service Commission)", "label": "ORG", "start_char": 7939, "end_char": 7973, "source": "ner", "metadata": {"in_sentence": "The services of those who are not found suitable by the P.S.C. (Public Service Commission) shall also be terminated by giving one month's notice in each case."}}, {"text": "9-3-71", "label": "DATE", "start_char": 8685, "end_char": 8691, "source": "ner", "metadata": {"in_sentence": "600/- per month on 9-3-71 by."}}, {"text": "April 20, 1971", "label": "DATE", "start_char": 9676, "end_char": 9690, "source": "ner", "metadata": {"in_sentence": "x x x x x\n\nBasing on the aforesaid provisions of the above circular the Director of Public Instructions sent .on April 20, 1971, to each of the Respondents appointment."}}, {"text": "Orissa Public Service Commission", "label": "ORG", "start_char": 9958, "end_char": 9990, "source": "ner", "metadata": {"in_sentence": "March 9, 1971, or till the appointment is made in consultation with the Orissa Public Service Commission, whichever is earlier, subject to verification of character and antecediw.ts and production of medical fitness certificate."}}, {"text": "Ramamurthi", "label": "OTHER_PERSON", "start_char": 11355, "end_char": 11365, "source": "ner", "metadata": {"in_sentence": "It is submitted by Mr. Ramamurthi on behalf of the appellants that the High Court erred in directing the Government to take into account, as exerience, the service oil the Respondents while they were in the pnvate college since, according to him, the necessary qualification is eight years experience in Class II, Orissa Education Service (0.E.S.)."}}, {"text": "July 19, 1971", "label": "DATE", "start_char": 11805, "end_char": 11818, "source": "ner", "metadata": {"in_sentence": "This submission is based on the Orissa Education Service Class I (Recruitment to the College Branch) Rules, 1971, issued on July 19, 1971, produced for the first time in this Court."}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 12059, "end_char": 12084, "source": "ner", "metadata": {"in_sentence": "Class II (Lecturer's grade) in Government service, they are not entitled to be considered by the Public Service Commission for appointment as Readers."}}, {"text": "Mar.::h 9, 1971", "label": "DATE", "start_char": 12439, "end_char": 12454, "source": "ner", "metadata": {"in_sentence": "These Rules of July 19, 1971, were not produced in the High Court and the reason is obvious that tliese were not relied upon by the State in connection with the appointment of the Respondents as Readers after the College had been taken over by the Government on Mar.::h 9, 1971."}}, {"text": "Rules and necessarily no ground was taken in the F Petition on the basis of these Rules", "label": "STATUTE", "start_char": 12782, "end_char": 12869, "source": "regex", "metadata": {}}, {"text": "April 30, 1976", "label": "DATE", "start_char": 12994, "end_char": 13008, "source": "ner", "metadata": {"in_sentence": "4069 of 1976 before this_Court on April 30, 1976, to urge this additional ground."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 13360, "end_char": 13370, "source": "regex", "metadata": {"linked_statute_text": "Rules and necessarily no ground was taken in the F Petition on the basis of these Rules", "statute": "Rules and necessarily no ground was taken in the F Petition on the basis of these Rules"}}, {"text": "T. K.\n\nSatyanmurty", "label": "RESPONDENT", "start_char": 13590, "end_char": 13608, "source": "ner", "metadata": {"in_sentence": "TI; e following facts are admitted : The Respondents and two others, namely, T. K.\n\nSatyanmurty (No.", "canonical_name": "T. K.\n\nSatyanmurty"}}, {"text": "V. S. R. Gupta", "label": "RESPONDENT", "start_char": 13621, "end_char": 13635, "source": "ner", "metadata": {"in_sentence": "9) and V. S. R. Gupta (No.", "canonical_name": "V. S. R. Gupta"}}, {"text": "Goswami", "label": "JUDGE", "start_char": 13780, "end_char": 13787, "source": "ner", "metadata": {"in_sentence": "10) in the list (Annexure I) were all Readers in the private College, each having put in more than eight\n\n_... ...\n\nORJSSA v. N. N. SWAMY (Goswami, J.) 779\n\nyears of service there as a Lecturer.", "canonical_name": "GoswAMI"}}, {"text": "T. K. Satyanmurty", "label": "RESPONDENT", "start_char": 13836, "end_char": 13853, "source": "ner", "metadata": {"in_sentence": "T. K. Satyanmurty was promoted A as Reader on 4-5-1969 and was drawing Rs.", "canonical_name": "T. K.\n\nSatyanmurty"}}, {"text": "V. S. R. Gupta", "label": "RESPONDENT", "start_char": 13946, "end_char": 13960, "source": "ner", "metadata": {"in_sentence": "V. S. R. Gupta was promoted as Reader on 4-9-1969 and was drawing Rs.", "canonical_name": "V. S. R. Gupta"}}, {"text": "4-9-1969", "label": "DATE", "start_char": 13987, "end_char": 13995, "source": "ner", "metadata": {"in_sentence": "V. S. R. Gupta was promoted as Reader on 4-9-1969 and was drawing Rs."}}, {"text": "N. N.\n\nSwamy", "label": "RESPONDENT", "start_char": 14217, "end_char": 14229, "source": "ner", "metadata": {"in_sentence": "Amongst the Respondents, N. N.\n\nSwamy (No.", "canonical_name": "N. N. SWAMY & ORS. ETC"}}, {"text": "J. J. Rao", "label": "RESPONDENT", "start_char": 14261, "end_char": 14270, "source": "ner", "metadata": {"in_sentence": "2), J. J. Rao (Nn.", "canonical_name": "J. J. Rao"}}, {"text": "G. J. Chineswar Rao", "label": "RESPONDENT", "start_char": 14280, "end_char": 14299, "source": "ner", "metadata": {"in_sentence": "4), G. J. Chineswar Rao (No."}}, {"text": "B Chandra Sekhar Patro", "label": "OTHER_PERSON", "start_char": 14317, "end_char": 14339, "source": "ner", "metadata": {"in_sentence": "B Chandra Sekhar Patro (No."}}, {"text": "Article 16", "label": "PROVISION", "start_char": 16743, "end_char": 16753, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16(1)", "label": "PROVISION", "start_char": 16806, "end_char": 16819, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1962] 2 SCR 586", "label": "CASE_CITATION", "start_char": 17103, "end_char": 17119, "source": "regex", "metadata": {}}, {"text": "Article 16", "label": "PROVISION", "start_char": 18519, "end_char": 18529, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 18969, "end_char": 18979, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "sec 96", "label": "PROVISION", "start_char": 20548, "end_char": 20554, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 20805, "end_char": 20815, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Public 'Senice Commission", "label": "ORG", "start_char": 21643, "end_char": 21668, "source": "ner", "metadata": {"in_sentence": "Whether they will be suitable for appointment as Readers will C be a matter entirely for due and proper consideration of the Public 'Senice Commission whose recommendations will be considered by tl; e Government in the matter of final absorption."}}]}
{"document_id": "1977_2_782_789_EN", "year": 1977, "text": "STATE OF MAHARASHTRA\n\nBHALCHANDRA KHANDERAO JOSHI & ANR.\n\nJanuary 27, 1977\n\n(P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nMaharashtra Educational Se1Tice Class II-Amalgamation of History and' Political Science lecturers-Proof of amalgamatio11--Grant of optio11 to teacher to join History or Political Science se1Ticc.\n\nAfter the reorganisation of the States a separate seniority Est was prepared by the State of Bombay for History and Political Science teachers. On 20.8.1963. the Director of Education issued a letter conveying the decision oi Government to amalgamate the list of lecturers in History and Lecturers in Political Science\n\nand to prepare a single seniority list for both the subjects. It was express!} stc.ted in the letter that it was issued in pursuance of the decision of the State Government.\n\nThereafter a revised seniority list was prepared.\n\nOne Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments\n\nof History & Politicai Science in accordance with the earlier Government Order of 1960, the new list was invalid.\n\nThe High Court took the view that the existence of the Gocernment resolution dated 27.2.1963, which was said to be the authority for the issue of Di rcctors letter dated 20.8.1963, had not been proved. It therefore held that there was no such resolution or order requiring the preparation of n combined seniority list.\n\nIt decided that the earlier order of 1960 requiring the preparation of separate list of History and Political Science\n\ncontinued to be operati, e. It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his department.\n\nIn the present writ petition filed by B. K. Joshi and P. S. Kane the High Court followed its decision in Nanekar's case and held that there was JH' order or decisiot1 dated 27.2.1963 so that the action of amalgamating the list of History and Political Science departments was invalid.\n\nA resolution was taken on 15.1.1970 in which it was mentioned that the earlier decision to amalgamate the two categories ws given UP' on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties.\n\nThat resolution was challenged in the present proceedings.\n\nThe High Court examined the effect of the Government . Resolution dated 15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963 the Director of Education was not competent to combine or amalgamate the seniority lists of History and Political Science Departments. lt assumed that legally there was no amalgamation at aU and any action taken on the basis of the amalgamation would also consequently have to fall on that ground.\n\nThe High Court held that the option given by the 1970 resolution had the effect of perpetuating the effect of the working of the invalid list and amounted to viollttion of ATt. 16 of the Constitution.\n\nThe High Court held that in Nanekar\"s case no attempt was made to produce the resolution of 27.2.1963.\n\nAllowing the appeals.\n\nHeld: 1 : The High Court erred in observing that the resolution of 27.2.1963 did not exist.\n\nThe High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the resolution on 27.2.1963 to amalgamate the two lists.\n\nIn the 1970 resoiution, the Government itself reiterated the act that a decision was tken by Government in the year 1963 to amalgamate the lists of Lecturers in Hi.>tory and the Lecturers in Political Science into one common list.\n\nThe reason for taking that decision to amalgamate the two .lists was also stated in that re.solution. in fact the 1970 resolution made a mention of the difficulties experienced in working the 1963 resolution and that was why it was decided to revert to the decision to split up the combined seniority list which formed the l:>asis of prom10tio11 of some of the teachers.\n\nAs the genuineness of the resolution of 1970 was\n\n... f\n\nMAHARASHTRA V. B. K. JOSHI (Shin.g/za[, J.) 783\n\nmot challenged, the High Court ought to have taken notice of its intrinsic evi- A , dentiary value fo.r the purpose of proving the earlier resolution of 1963.\n\nJn fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought' to the notice of all concerned.\n\nThe combined seniority list, was therefore fully authorised and there was nothing wrong if it formed the basis of the subsequent promotions. [787 G-H, 788 A-El\n\n2. No exception could be taken to the decision of the Government to 2ive option to the Lectures to e!ect either of the two departments.\n\nThe decision B to amalgamate the semonty hsts of the two departments was not taken in consultation with them and if they were required to teach History or Political Science and were promoted as Professor of History or Political Science on the basis .-0f combined seniority list for which they themselves were not responsible, it would have been unfair if they had been required to serve in another dcpartn1ent by n uni1aterri1 executive fiat.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1173 to c Tl 75 of 1976.\n\nAppeals by Special Leave from the Judgment and Order doted the 11-3-1975 of the Bombay High Court (Nagpur Bench) in Special 'Civil Application No. 695 of 1971. ·\n\nL. N. Sinha, Sol Genl., M. N. Shroff for the Appellants in 'CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76.\n\nM: N. Phadke, V. M. Phadke and A.G. Ratnaparkhi for-RR. and 2 in CA 1173/76 and CAs. 1174-75/76.\n\nNilofer (Mrs.) Bhagwat, S. C. Agrawal :mcl V. .f.\n\nFrancis for '.R .. 5 in C.A. 1174 and 1175/76.\n\nY. J. Francis for' RR. No. 6 in CA 11'75/76.\n\nThe Judgment of the Court was delivered by\n\nSHTNGHAL J.-These appeals arise out o( a judgment of the Bombay High Court dated March 11, 1975, by which the High Court qu:1shed that part of Government resolution dated January 15, 1970,\n\n\"which holds that the respondents Nos. 3 to 5 should not be com- F pell.eel to go back to their respective lists and which gives a further option to these three respondents to indicate whether tlley \\vanted 'to go back to the; department of History.\" The High Col1rt has further held that the writ petitioners will be en.titled to be considered for promotion to Class I posts in the department of Political Science and the seniority of respondents Nos. 3 to 5 \"will be considered in the .seniority list relating to the Department of History.\".\n\nThe controversy arose because 0if a writ petition filed by Bhalchandra Khanderao Joshi and Padniakar Siddhanath Kane.\n\nBoth of .them were members of the Maharashtra Educational Service, Class II (Collegiate Branch).\n\nBhalchandra Khanderao Jo5hi was M.A. in Poiitical Science as well as in History.\n\nHe was appointed Lecturer in Political Science in 1958, and was confirmed in that capacity.\n\nPadmal:ar Siddhanath Kane passed M.A.\n\nExamination in Political Science in 1956 and was appointed Lecturer in Political Science in\n\nJ 9.58.\n\nHe was also .confirmed on that post. Both of them filed a writ.\n\npetition and challenged the resolution of the State Government, iIT the Education and Social Welfare Department, No. SCP No. 1064-D dated January 15, 1970, in pursuance of which respondents Smt. K. A.\n\nParekh, S. A. Bari and Smt. R. S. Dossal were promoted as Professors of Political Science and were given theoption to opt for the History or the Political Science department. ·\n\nIt may be mentioned that after the reorganisation of Stales, a. combined seniority list was prepared on November 1, 1956, for History and Political Science teachers.\n\nIn that list respondent No. 3 was shown at serial No. 3, and respondent No. 4 at serial No. 5. One S. R. Nanekar was appoint~ as Lecturer in Political Science on June\n\n26. 1954.\n\nRespondents Nos. 3 and 5 were M.A. in History. It was not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers for post graduation in History, four were in Political Science.\n\nSmt.\n\nK. A. Parekh was M. A. in History and was recruited as Lecturer on August 5, 1946. She however taught both History and Political Science upto 1963, when she was appointed officiating Professor of Political Science on February 27. 1963. Dr. S. A. Bari was recruited'. as Lecturer in History on October 1; 194 7.\n\nHe was thereafter promoted as Professor in that subject. Smt. M. G. Sonnal, who was M.A .. in History, was appointed as Professor ol] Political Science. Smt. R. S.\n\nDossal was. recruited as Assistant Lecturer in Hisory on August 5, 1946, and taught both History and Political Science upto 1956 ..\n\nThereafter she taught only Political Science, and was promoted as Professor in that subject in 1968. She was confirmed in that capacity in 1972.\n\nThese facts are quite sufficient for purposes •)f the present appeals.\n\nThe controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was addressed to all the Psh1cipals of the Government Colleges. It was stated by the Director in that letter as follows,-\n\n\"It has been decided to amalgamate the two lists of lecturers in 'History' and 'Political Science' and to combine the two lists under the common subject of 'History' and 'Political Science'.\n\nThe revised seniority list so prepared is enclosed herewith.\n\nPlease bring this decision of Gov\"ernment to the notice of the officers concerned.\"\n\nThe Director thus conveyed_ the decision to amalgamate the lists of Lecturers in History and Political Science and to prepare a single seniority list fonboth the subjects. It was expressly stated in the letter that it had been issued in pursuance of the decision of the State Government.\n\nA revised seniority list was therefore prepared in which respondent No. 3 was placed at serial No. 4, respondent No. 4 at serial No. 5, and S. R. Nanekar at serial No. 7.\n\nNanekar challenged that order in the High Court by Special Civil Application No. 120 of 1964, mainly on the ground that when two separate seniority lists had been prepared for the_ departments of History and Political Scien..:e,\n\n... f '\n\nin accordance with the earlier Government Order of 1960, the new list was invalid.\n\nThe High Court however took the view that the existence of the Government resolution dated February 27, 1963, which was said to be the authority for the issue of the Director's letter dated August 20, 1963, had not been proved. It therefore held that there. was no . suh i:esolution o~ order requiring the _preparation of a combmed semonty lit. It decided that the earlier order of 1960, requiring the preparation of separate lists for History and Political Science, continued to be operative and that as Nanekar could not claim to be the seniormost person in his department, he had no cause of ::iction. It therefore dismissed the writ petition.\n\nThe High Court, in the present case, went by the decision in Nanekar's case, and held that there was no order or decision dated February 27, 1963, so that the actio_n of amalgamating the lists of History and Political Science departments was invalid.\n\nThe High Court made a reference to the Director's letter dated July 27, 1967 asking the Principals to forviard information in the prescribed proforma in respect of those Professors and Lecturers of History in their respective colleges who were qualified to teach Political Science :md had been recognised tJierefor. It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows,-\n\n\"A decision was taken by Goermnent in the year 1963 to amalgamate the lists of Lecturers_ in 'History' and Le, cturers in 'Political Science' into one common list of Lecturers in 'History and Political Science'.\n\nAccordingly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S.\n\nCliiss II, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of \"History\" and \"Political Science\" or in any one of the two.\n\nThe decision to amalgamate the two lists into one was taken because' it was noticed that some of the Lecturers in the senioritv list of the subject \"History\" also possessed the qualifications in the subject \"Political Science\".\n\nSimilarly, some of -the Lecturers in \"Political Science\" possessed the qualifications in\n\n\"Hitory\". But they were not considered eligible for ip pointment to a post of Professor in a subject other than the subject under which their names were included in the seniority list of their subject.\n\nIn order to remove this anomaly, deCJision to amalgamate the seniority lists of Lecturers in \"History\" and \"Political Science\" and to make appointment to the posts of Professors on the basis of the combined seniority list in the subjects of \"History\" and \"Political Science\" was taken by Government.\n\nHowever, in view of the difficulties experienced with regard to the implementation of the deeision of Govemmellt referred to above, Government on reconsideration decided in the year 1967 to revert to the old practice of having separate seniority lists of Lecturers for the two subjects., 'History' and 'Political Science'.\n\n. 2. Some of the teaching members of the Departmnt of History brought to the notice of Government that m the western Maharashtra formerly there were no separate _posts for Political Science as \"Political Science\" did not ey.1st as distinct subject.\n\nAll teachers were designated as Lecturers/ Professors in History, but they used to teach the subject \"Political Science\" also.\n\nThe question of giving option to those Lecturers/Professors, who were qualified to teach both, the subjects, viz., \"History\" and \"Political Science\" and recognised as such, to elect either of the two subjects, was under consideration of Government for some time past.\n\nWhile reverting to the decision to split up the •:on1bined seniority list of \"History and Political Science\", Gm; ernment considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not be compelled to go back to their respective lists.\n\nGovernment bas now decided that an option should be given to those Lecturers/Professors of the Old Bombay State, who were recruited as Lecturers/Professors of Historv but have been recognised as teachers of Political Science' and also those who have been promoted to the posts of Professors in M.E.S. C. II (Collegiate Branch) on the basis of the combined seniority list, to elect either of the two Departments, viz. 'History' or 'Political Science'.\n\nAccordinly the concerned Lecturers/Professors were asked to exercise their option. The following officers have opteu for their being treated as belonging to the Department of Political Science:-\n\n( i) Smt. K. A. Parekh, Officiating Professor of Political\n\nScience, 1. Y. College, Jogeshwari.\n\n(ii) Shri S. A. Bari, Officiating Professor of History, Government Arts and Science College, Aurangabad.\n\n(iii) Smt. R. S. Dossal, Officiating Professor of Political\n\nScience, Elphistone College, Bombay.\n\nThe option exercised by these officers have been accepted by _qovernent and their seniority in the Department of Political Science should be as shown in the accompanying statement.\" (Emphasis added). .\n\nIt therefore gave option to respondents Nos. 3 to 5 to go back to the department of History or not, and stated further that the option had been accepted and their seniority finalised in the Political Science department. It is this resolution of the Government dated January 15, 19~0 whlc? has been challenged in the present petition.\n\nThe reason 1s that 1f respondents Nos. 3 to 5 had not been given the option to continue in the Political Science department. thepetitioners would have been promoted to a Class I Post.\n\nThev have stated that they _would then not have been deprived of that chance in viobtion of article 16 of the Constitution.\n\n'!\" r\n\nI •\n\nMAF!ARASHTRA v . .II. K. JOSHI (Shins:hal, /.) 787\n\nRespondents Nos. 4 and 5 did not enter app, arnnce in the High Court, but it was urged on behalf of respondent No. 3 that in view of the curriculam for the Master's degree in History, upto 1956, a person -obtaining the Master's degree in History w_as equally '.qualified to teach Political Science. It was also urged that the respondent taught Politi- .cal Science and had been recognised by the University as a teacher of Political Science. The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence of the earlier resolution dated February 27, 1963, the Director of Education was not competent to combine or amalgamate the &eniority\n\nlists of the History and Political Science departments. lt assumed that \"legally there was no amalgamation at all and any action taken .on the basis of such amalgamation would also consequently have to fall on the ground:\" In that view of the matter, the High Court held _that promotions were not permissible on the basis of the combined list. It accordingly held tfiat the Government n::solution dated Jnnu- :ary 15, 1970 proceeded on a \"misapprehension\" that the icspondent>.\n\nhad peen promoted as Professors on the basis of the combined :seniority list, which was itself invalid.\n\nThe High Court 11eld that there was \"no valid reason why persons who were qualified in the Department of Political Science itself could be prevented from having their names considered for the post of Professor in Class I.\" That led\n\nthe High Court to hold-further' that the option which was given by the resolution dated January 15, 1970 had the effect or perpetuating the effect of the working of the invalid list, and amounted to violation of article 16 of the Constitution.\n\nThis is why the State of Jvlaharashtra, Smt. K. A. Parekh and Smt. R. S. Dossal have come up in appeal by special leave to this Couti.\n\nThe controversy therefore is whether the State government passed the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Director's aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Director's order was unauthorised ?\n\nThe High Court has taken the view that as no attempt was made to F produce the resolution dated February 27, 1963 in Nanekar's case, there was no such resolutiuu t all.\n\nOn that basis, it held that the Director had no authority to take the decision to amalgamate the lists.\n\nWe find however that in taking that view the High -Court lost sight of the intrinsic evidence which was available on the record, to prove G beyond doubt that Governmen~ had passed the aforesaid' resolution dated February 27, 1963, to amalgamate the two lists.\n\nWe have extracted the Government resolution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that \"a decision _was taken by Government in the year 1963 to amalgamate the lists of Lectur.;; rs in \"History\" m:d Lect'urers in \"Political Science\" into one common list oE Lecturers m H \"History and Political Science\". \" It has further been stated: in th<it resolution of the Government that \"accordingly, a combined seniority list was prepared with reference to the date of appointment of the\n\noflicer concerned in the M.E.S. Class II, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of 'History' '.ind 'Political Science' or in any one of the two''. The reason for takmg that \"decision, to amalgamate the two lists\" has also been stated in the resolution. Then it has been stated that in \"view of the difficulties experienced with regard to the implementation of the decision of Government referred to above,\" the Government \"on reconsideration'• had decided to nevert to the old practice of having separate seniority lists of Lectnrers of History and Political Science. It has also been stated that the decision had been taken for \"reverting to the decision to i>plit up\" the combined seniority list which formed the basis of promotion of some of the teachers. It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the ditticulties experienced in the implementation of that decision, and gives the reasons for the government's decision to revert to the old practice of having separate seniority lists.\n\nAs it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 2 7, 1963.\n\nIf it had done so, it would have inevitably reached the conclusion that the Governm.ent had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20, 1963, and it was therefore an authorised communication.\n\nIn fac~ the Director specifically stated in that order that the \"decision of Government\" to amalgamate the two lists had to be brought to the notice of all concerned.\n\nThe combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons\n\nmentioned above.\n\nWe have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.\n\nThe resolution dated January 15, 1970 shows that as the (iovernment had decided to split up the seniority list for the lfopartment of History and Political Science, it thought it desirable to give an \"option\" to those Lecturers/Professors of the old Bomb'.ly State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to dect for either of the two departmc'lts. No exception can be taken to tl1at ck:ision to give the option to the Lecturers/Professors concerned for, in the absence o.f such an option, they would have been deprived of the opportunity of expressing their desire to serve in the one or the other department on the basis cf their experience and prospects of promotion.\n\nIt was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required fo teach History, or Political Science, and were promoted as Professors of History or Political St:icnce, on the lJasis of a combined seniority list for which they themselves \\were not responsible, it would have been unfair if they had been required to serv, e in :mother department by a unilateral executive fiat.\n\n.. l\n\n• ·\\(\n\n\" J\n\nIt may' be mentioned that Mr. Phadke tried to argue that even if the resolution dated January'. 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage of it because they did not fulfill its requirements.\n\nWe do not find any merit in this argument. As has been stated, thoe tea.chers were promoted to posts of Pro.fessors on the basis of the combined list, they were recognised as such teachers by the University, and were recruited initially as Lecturers in History. They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it.\n\nWe have no doubt that in the facts and circumstances mentioned above, there could be no justification for the view • taken by the High Court that there was violation of article 16 of the Constitution.\n\nThe appeals are allowed, the impugned judgrnenL of the High Ccurt dated March 11, 1975 is set aside and the writ petition is dismissed.\n\nThe State _of Maharashtra will pay the costs of respondents Nos. l and 2 (Bhalchandra K. Joshi and Padmkar Sidharath R:rn) in Special Leave Petition No. 915 of 1976, as directcJ by this Court on October 8, 1976.\n\nP.H.P.\n\nA p[Jeals allowed ..", "total_entities": 63, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "BHALCHANDRA KHANDERAO JOSHI & ANR", "label": "RESPONDENT", "start_char": 22, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "BHALCHANDRA KHANDERAO JOSHI & ANR", "offset_not_found": false}}, {"text": "January 27, 1977", "label": "DATE", "start_char": 58, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "January 27, 1977\n\n(P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 77, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Nanekar", "label": "OTHER_PERSON", "start_char": 864, "end_char": 871, "source": "ner", "metadata": {"in_sentence": "One Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments\n\nof History & Politicai Science in accordance with the earlier Government Order of 1960, the new list was invalid.", "canonical_name": "Nanekar\"s"}}, {"text": "27.2.1963", "label": "DATE", "start_char": 1229, "end_char": 1238, "source": "ner", "metadata": {"in_sentence": "The High Court took the view that the existence of the Gocernment resolution dated 27.2.1963, which was said to be the authority for the issue of Di rcctors letter dated 20.8.1963, had not been proved."}}, {"text": "20.8.1963", "label": "DATE", "start_char": 1316, "end_char": 1325, "source": "ner", "metadata": {"in_sentence": "The High Court took the view that the existence of the Gocernment resolution dated 27.2.1963, which was said to be the authority for the issue of Di rcctors letter dated 20.8.1963, had not been proved."}}, {"text": "B. K. Joshi", "label": "OTHER_PERSON", "start_char": 1793, "end_char": 1804, "source": "ner", "metadata": {"in_sentence": "In the present writ petition filed by B. K. Joshi and P. S. Kane the High Court followed its decision in Nanekar's case and held that there was JH' order or decisiot1 dated 27.2.1963 so that the action of amalgamating the list of History and Political Science departments was invalid."}}, {"text": "P. S. Kane", "label": "OTHER_PERSON", "start_char": 1809, "end_char": 1819, "source": "ner", "metadata": {"in_sentence": "In the present writ petition filed by B. K. Joshi and P. S. Kane the High Court followed its decision in Nanekar's case and held that there was JH' order or decisiot1 dated 27.2.1963 so that the action of amalgamating the list of History and Political Science departments was invalid."}}, {"text": "15.1.1970", "label": "DATE", "start_char": 2067, "end_char": 2076, "source": "ner", "metadata": {"in_sentence": "A resolution was taken on 15.1.1970 in which it was mentioned that the earlier decision to amalgamate the two categories ws given UP' on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties."}}, {"text": "Nanekar\"s", "label": "OTHER_PERSON", "start_char": 3059, "end_char": 3068, "source": "ner", "metadata": {"in_sentence": "The High Court held that in Nanekar\"s case no attempt was made to produce the resolution of 27.2.1963.", "canonical_name": "Nanekar\"s"}}, {"text": "MAHARASHTRA V. B. K. JOSHI", "label": "JUDGE", "start_char": 4105, "end_char": 4131, "source": "ner", "metadata": {"in_sentence": "As the genuineness of the resolution of 1970 was\n\n... f\n\nMAHARASHTRA V. B. K. JOSHI (Shin.g/za[, J.) 783\n\nmot challenged, the High Court ought to have taken notice of its intrinsic evi- A , dentiary value fo.r the purpose of proving the earlier resolution of 1963."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 5464, "end_char": 5475, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol Genl.,"}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 5488, "end_char": 5500, "source": "ner", "metadata": {"in_sentence": "M. N. Shroff for the Appellants in 'CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76."}}, {"text": "N. Phadke", "label": "LAWYER", "start_char": 5577, "end_char": 5586, "source": "ner", "metadata": {"in_sentence": "M: N. Phadke, V. M. Phadke and A.G. Ratnaparkhi for-RR."}}, {"text": "V. M. Phadke", "label": "LAWYER", "start_char": 5588, "end_char": 5600, "source": "ner", "metadata": {"in_sentence": "M: N. Phadke, V. M. Phadke and A.G. Ratnaparkhi for-RR."}}, {"text": "A.G. Ratnaparkhi", "label": "LAWYER", "start_char": 5605, "end_char": 5621, "source": "ner", "metadata": {"in_sentence": "M: N. Phadke, V. M. Phadke and A.G. Ratnaparkhi for-RR."}}, {"text": "Nilofer", "label": "PETITIONER", "start_char": 5672, "end_char": 5679, "source": "ner", "metadata": {"in_sentence": "Nilofer (Mrs.) Bhagwat, S. C. Agrawal :mcl V. .f."}}, {"text": "Bhagwat", "label": "JUDGE", "start_char": 5687, "end_char": 5694, "source": "ner", "metadata": {"in_sentence": "Nilofer (Mrs.) Bhagwat, S. C. Agrawal :mcl V. .f."}}, {"text": "S. C. Agrawal", "label": "JUDGE", "start_char": 5696, "end_char": 5709, "source": "ner", "metadata": {"in_sentence": "Nilofer (Mrs.) Bhagwat, S. C. Agrawal :mcl V. .f."}}, {"text": "Francis", "label": "RESPONDENT", "start_char": 5723, "end_char": 5730, "source": "ner", "metadata": {"in_sentence": "Francis for '.R .. 5 in C.A. 1174 and 1175/76."}}, {"text": "Y. J. Francis", "label": "LAWYER", "start_char": 5771, "end_char": 5784, "source": "ner", "metadata": {"in_sentence": "Y. J. Francis for' RR."}}, {"text": "SHTNGHAL", "label": "JUDGE", "start_char": 5861, "end_char": 5869, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHTNGHAL J.-These appeals arise out o( a judgment of the Bombay High Court dated March 11, 1975, by which the High Court qu:1shed that part of Government resolution dated January 15, 1970,\n\n\"which holds that the respondents Nos."}}, {"text": "Bhalchandra Khanderao Joshi", "label": "RESPONDENT", "start_char": 6655, "end_char": 6682, "source": "ner", "metadata": {"in_sentence": "The controversy arose because 0if a writ petition filed by Bhalchandra Khanderao Joshi and Padniakar Siddhanath Kane.", "canonical_name": "BHALCHANDRA KHANDERAO JOSHI & ANR"}}, {"text": "Padniakar Siddhanath Kane", "label": "PETITIONER", "start_char": 6687, "end_char": 6712, "source": "ner", "metadata": {"in_sentence": "The controversy arose because 0if a writ petition filed by Bhalchandra Khanderao Joshi and Padniakar Siddhanath Kane.", "canonical_name": "Padniakar Siddhanath Kane"}}, {"text": "Bhalchandra Khanderao Jo5hi", "label": "RESPONDENT", "start_char": 6813, "end_char": 6840, "source": "ner", "metadata": {"in_sentence": "Bhalchandra Khanderao Jo5hi was M.A. in Poiitical Science as well as in History.", "canonical_name": "BHALCHANDRA KHANDERAO JOSHI & ANR"}}, {"text": "Padmal:ar Siddhanath Kane", "label": "PETITIONER", "start_char": 6988, "end_char": 7013, "source": "ner", "metadata": {"in_sentence": "Padmal:ar Siddhanath Kane passed M.A.\n\nExamination in Political Science in 1956 and was appointed Lecturer in Political Science in\n\nJ 9.58.", "canonical_name": "Padniakar Siddhanath Kane"}}, {"text": "K. A.\n\nParekh", "label": "RESPONDENT", "start_char": 7389, "end_char": 7402, "source": "ner", "metadata": {"in_sentence": "K. A.\n\nParekh, S. A. Bari and Smt.", "canonical_name": "K. A.\n\nParekh"}}, {"text": "S. A. Bari", "label": "RESPONDENT", "start_char": 7404, "end_char": 7414, "source": "ner", "metadata": {"in_sentence": "K. A.\n\nParekh, S. A. Bari and Smt.", "canonical_name": "S. A. Bari"}}, {"text": "R. S. Dossal", "label": "RESPONDENT", "start_char": 7424, "end_char": 7436, "source": "ner", "metadata": {"in_sentence": "R. S. Dossal were promoted as Professors of Political Science and were given theoption to opt for the History or the Political Science department. ·", "canonical_name": "R. S.\n\nDossal"}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 7678, "end_char": 7694, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that after the reorganisation of Stales, a. combined seniority list was prepared on November 1, 1956, for History and Political Science teachers."}}, {"text": "S. R. Nanekar", "label": "RESPONDENT", "start_char": 7840, "end_char": 7853, "source": "ner", "metadata": {"in_sentence": "One S. R. Nanekar was appoint~ as Lecturer in Political Science on June\n\n26.", "canonical_name": "S. R. Nanekar"}}, {"text": "June\n\n26. 1954", "label": "DATE", "start_char": 7903, "end_char": 7917, "source": "ner", "metadata": {"in_sentence": "One S. R. Nanekar was appoint~ as Lecturer in Political Science on June\n\n26."}}, {"text": "Bombay", "label": "GPE", "start_char": 8070, "end_char": 8076, "source": "ner", "metadata": {"in_sentence": "It was not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers for post graduation in History, four were in Political Science."}}, {"text": "K. A. Parekh", "label": "RESPONDENT", "start_char": 8181, "end_char": 8193, "source": "ner", "metadata": {"in_sentence": "K. A. Parekh was M. A. in History and was recruited as Lecturer on August 5, 1946.", "canonical_name": "K. A.\n\nParekh"}}, {"text": "February 27. 1963", "label": "DATE", "start_char": 8398, "end_char": 8415, "source": "ner", "metadata": {"in_sentence": "She however taught both History and Political Science upto 1963, when she was appointed officiating Professor of Political Science on February 27."}}, {"text": "S. A. Bari", "label": "RESPONDENT", "start_char": 8421, "end_char": 8431, "source": "ner", "metadata": {"in_sentence": "Dr. S. A. Bari was recruited'.", "canonical_name": "S. A. Bari"}}, {"text": "M. G. Sonnal", "label": "OTHER_PERSON", "start_char": 8555, "end_char": 8567, "source": "ner", "metadata": {"in_sentence": "M. G. Sonnal, who was M.A .. in History, was appointed as Professor ol] Political Science."}}, {"text": "R. S.\n\nDossal", "label": "RESPONDENT", "start_char": 8651, "end_char": 8664, "source": "ner", "metadata": {"in_sentence": "R. S.\n\nDossal was.", "canonical_name": "R. S.\n\nDossal"}}, {"text": "Maharashtra State", "label": "GPE", "start_char": 9084, "end_char": 9101, "source": "ner", "metadata": {"in_sentence": "The controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was addressed to all the Psh1cipals of the Government Colleges."}}, {"text": "August 20, 1963", "label": "DATE", "start_char": 9147, "end_char": 9162, "source": "ner", "metadata": {"in_sentence": "The controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was addressed to all the Psh1cipals of the Government Colleges."}}, {"text": "S. R. Nanekar", "label": "RESPONDENT", "start_char": 10061, "end_char": 10074, "source": "ner", "metadata": {"in_sentence": "5, and S. R. Nanekar at serial No.", "canonical_name": "S. R. Nanekar"}}, {"text": "February 27, 1963", "label": "DATE", "start_char": 10507, "end_char": 10524, "source": "ner", "metadata": {"in_sentence": "The High Court however took the view that the existence of the Government resolution dated February 27, 1963, which was said to be the authority for the issue of the Director's letter dated August 20, 1963, had not been proved."}}, {"text": "Goermnent", "label": "OTHER_PERSON", "start_char": 11758, "end_char": 11767, "source": "ner", "metadata": {"in_sentence": "It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows,-\n\n\"A decision was taken by Goermnent in the year 1963 to amalgamate the lists of Lecturers_ in 'History' and Le, cturers in 'Political Science' into one common list of Lecturers in 'History and Political Science'."}}, {"text": "K. A. Parekh", "label": "LAWYER", "start_char": 14990, "end_char": 15002, "source": "ner", "metadata": {"in_sentence": "K. A. Parekh, Officiating Professor of Political\n\nScience, 1.", "canonical_name": "K. A.\n\nParekh"}}, {"text": "S. A. Bari", "label": "LAWYER", "start_char": 15087, "end_char": 15097, "source": "ner", "metadata": {"in_sentence": "(ii) Shri S. A. Bari, Officiating Professor of History, Government Arts and Science College, Aurangabad.", "canonical_name": "S. A. Bari"}}, {"text": "R. S. Dossal", "label": "LAWYER", "start_char": 15194, "end_char": 15206, "source": "ner", "metadata": {"in_sentence": "R. S. Dossal, Officiating Professor of Political\n\nScience, Elphistone College, Bombay.", "canonical_name": "R. S.\n\nDossal"}}, {"text": "January 15, 19~0", "label": "DATE", "start_char": 15751, "end_char": 15767, "source": "ner", "metadata": {"in_sentence": "It is this resolution of the Government dated January 15, 19~0 whlc?"}}, {"text": "article 16", "label": "PROVISION", "start_char": 16097, "end_char": 16107, "source": "regex", "metadata": {"statute": null}}, {"text": "January 15, 1970", "label": "DATE", "start_char": 16706, "end_char": 16722, "source": "ner", "metadata": {"in_sentence": "The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence of the earlier resolution dated February 27, 1963, the Director of Education was not competent to combine or amalgamate the &eniority\n\nlists of the History and Political Science departments."}}, {"text": "article 16", "label": "PROVISION", "start_char": 17917, "end_char": 17927, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Jvlaharashtra", "label": "ORG", "start_char": 17966, "end_char": 17988, "source": "ner", "metadata": {"in_sentence": "This is why the State of Jvlaharashtra, Smt."}}, {"text": "K. A. Parekh", "label": "RESPONDENT", "start_char": 17995, "end_char": 18007, "source": "ner", "metadata": {"in_sentence": "K. A. Parekh and Smt.", "canonical_name": "K. A.\n\nParekh"}}, {"text": "R. S. Dossal", "label": "RESPONDENT", "start_char": 18017, "end_char": 18029, "source": "ner", "metadata": {"in_sentence": "R. S. Dossal have come up in appeal by special leave to this Couti.", "canonical_name": "R. S.\n\nDossal"}}, {"text": "February 2 7, 1963", "label": "DATE", "start_char": 20974, "end_char": 20992, "source": "ner", "metadata": {"in_sentence": "As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 2 7, 1963."}}, {"text": "Phadke", "label": "OTHER_PERSON", "start_char": 23055, "end_char": 23061, "source": "ner", "metadata": {"in_sentence": ".. l\n\n• ·\\(\n\n\" J\n\nIt may' be mentioned that Mr. Phadke tried to argue that even if the resolution dated January'."}}, {"text": "January'. 15, 1970", "label": "DATE", "start_char": 23111, "end_char": 23129, "source": "ner", "metadata": {"in_sentence": ".. l\n\n• ·\\(\n\n\" J\n\nIt may' be mentioned that Mr. Phadke tried to argue that even if the resolution dated January'."}}, {"text": "article 16", "label": "PROVISION", "start_char": 23838, "end_char": 23848, "source": "regex", "metadata": {"statute": null}}, {"text": "March 11, 1975", "label": "DATE", "start_char": 23943, "end_char": 23957, "source": "ner", "metadata": {"in_sentence": "The appeals are allowed, the impugned judgrnenL of the High Ccurt dated March 11, 1975 is set aside and the writ petition is dismissed."}}, {"text": "State _of Maharashtra", "label": "ORG", "start_char": 24012, "end_char": 24033, "source": "ner", "metadata": {"in_sentence": "The State _of Maharashtra will pay the costs of respondents Nos."}}, {"text": "Bhalchandra K. Joshi", "label": "RESPONDENT", "start_char": 24082, "end_char": 24102, "source": "ner", "metadata": {"in_sentence": "l and 2 (Bhalchandra K. Joshi and Padmkar Sidharath R:rn) in Special Leave Petition No.", "canonical_name": "BHALCHANDRA KHANDERAO JOSHI & ANR"}}, {"text": "Padmkar Sidharath", "label": "RESPONDENT", "start_char": 24107, "end_char": 24124, "source": "ner", "metadata": {"in_sentence": "l and 2 (Bhalchandra K. Joshi and Padmkar Sidharath R:rn) in Special Leave Petition No."}}, {"text": "October 8, 1976", "label": "DATE", "start_char": 24203, "end_char": 24218, "source": "ner", "metadata": {"in_sentence": "915 of 1976, as directcJ by this Court on October 8, 1976."}}]}
{"document_id": "1977_2_790_824_EN", "year": 1977, "text": "DATTATRAYA GOVJND MAHAJAN & ORS. ETC. v.\n\nSTATE OF MAHARASHTRA & ANR.\n\nJanuary 27, 1977\n\n[A. N. RAY, C.J., M. H. BEG, P. N. BHAGWATI, V. R. KRISHNA IYER\n\nAND P. N. SH!NGHAL, JJ.]\n\nMaliaraslitra Agricultural LaT1ds (Ceiling of Holdings) Act. 1961 as ame11ded /1y the Maharashtra Agric11lt11ral Lands (LoweriT1g of Ceiling of Holdings) AmeT1dment Acts 1972 and 1975 (Maharaslitra Act~ 21 of 1975 and 47 cf 1975 and 2 of 1976)-Ss. 2(11A), 2(22), 3.4.5.(1) rlw Schedule I and Sectio11 6 Principal Act and the \\'Grious amending Acts, placed in tl1e Ninth Schedule- Whether the Act as amended, in so far as it creates an artificial family unit and fixes a ceili111< on holding of land by sucli family unit is void and violatfre of the second proviso to clause (I) of Art. 31A and not sal'ed by tl1' i11111111nisi11g provision enacted in A rt. 3 lB.\n\nConstitutio11 of !11dia, 1950-Art. 31H, interpretation of.\n\nConstitution of India, 1950-Art. 3l(A)(l), Second prol'iso-Wheth, r co11fer.s a Funda111en1al Right. • Constitution of Lndia 1950 (Seienteenth Amendment) A ct, 1964, S. 3-Exr:lanation----Construction of.\n\nInterpretation of Statutes-Construction of a \"pro1'i.\\o\" to a section or clause in an PllGCf!JU'llf.\n\nPunjab Land Reforms Act, 1972 included in the protectilc umbrella uf rile iVi11th Schedule, subsequent to the decision of the Jligll Court declaring certain\n\nprovisions thereof as unconstitutional~A rt. 31 lJ b:!ing retrospectiie is entitled to the iJnn1unity conferred by it. '\n\nU.P. lmpMition of Ceiling Oil Land Holdings Acr (Act Nu. l) 1971 as amended by Act No. 18 of 1973 and Act No. 2 of 1975, all i11c/11dcd in the Ninth Schedule-The question, \"'hether s.5(6) is violarii•c of second provi.w to clause (l) of Art. 31A'. of the Constitution cannot be assailed by reawn of inununity {'flaC!Pd in .Art. 31R.\n\nThe Maharashtra Agricultural Lands (Ceiling of Holdings) Act, J 961 which \\Vas enacted in in1plementation of the Directive Principles of State Policy contained in clauses (b) and ( c) of Art. 39 of the Constitution imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a Yiew to securin:;\n\nthe distribution of agricultural land in a manner wJ:!ich would best observe the common good of the people.\n\nMaharashtra Amendment Act 21 of 1975 effected radical amendments in the principal Act by lowering the ceiling on agricultunil holding and created a concept of artificial family unit for fixing ceiling on. holdings of agricultural land.\n\nThe person as defined in s.2(22) r/w. s.2(ll) a1; d his spouse and their minor daughters were clubbed together for the purpose of constituting a family unit as defined in the Explanation to s.4 sub-section (1) and all lands held by each member of the family unit whether jointly or separately were aggregated together, and by a fiction of law deemed to be held by the family unit.\n\nThe appellant landlords in the State of Maharashtra preferred writ fl''lit!Om in the High Court of Bombay challenging the constitutional validity of the Principal Act, as amended on various grounds since the effect of the provisions of the pricipal Act as amended by the three Maharashtra Acts, viz. 21 of 197 5, 47 of 1975 and 2 of 1976 was to expropriate a part of the lands belonging to concept of family unit and fixed a ceiling on holding of land by such family unit. it was violative of the second proviso to clause (l) Art. 3 IA and was not saved by the immunising provision enacted in Art. 31 B.\n\nThe High Court dismissed them.\n\nThe main contention was that in so far as the Act created an artifici\"I\n\n,. \"\n\n... ..,-__ --=---.. •\n\n.. l\n\nD. G. MAHAJAN 1'. MAHARASHTRA (Bhagwati, J.) 791\n\nthe petition holding that Art. 31B afforded complete immunity to the provisions of the principal Act.\n\nIn appeal by special leave to this Court, the appellant contended : ( 1) On a true construction of Art. '3 lB a pOBt constitution enactment such as the Act is protected from invalidation only when it merely transgresses a restriction on legislative competence imposed by any provision of that Part and is therefore inconsistent with such provision.\n\nThe larger ground of validation curing generally •ny inconsistency with any provision of PJ!rt Ill is available only in case of pre-constitution legislation. (ii) The second proviso to clause ( 1) of Art. 37 A does not confer any Fundamental Right but merely imposes a !imitation on the .legislative competence of the legislature and, therefore, Art. 31 B does not exonerate the Act from its obligation to conform with the requirements of the second proviso to clause Jl) of Art. 31. (iii) To interpret the second proviso as conferring a Fundamental Right would convert the second proviso into a substantive provision and that would be contrary to the \\vell-recognised canon of construction that a proviso n1ust be read so as to carve out from the inaln pr6vision somtthing which would otherwise fall with it and (iv) The Explanation to s.3 of the Constitution (Seventeenth Amendment) Act. 1964 shows that an acquisition n1ade in contraention of the second proviso to clause (i) of Art. 31A is void and does not have the protection of Art. 31B, even if the law under which such acquisition is made is included in the Ninth Schedule.\n\nDismissing the appeals, the Court, Held : Per Bhagwati. ). (for himself and on behal[ of Ray, C. J .. Beg and Shing.hal, JJ.) (I) The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 196 I as amended by Maharashtra Acts 21 of 1975, Maharnshtra Act 47 of 1975 and Maharashtra Act 2. '?f 1976 in s_o far as it creates an artificial concept of family\n\nunit and fixes a ce1lmg on holdmg of land by such family unit, does not conflict with the second proviso to clause (1) of Art. 31A. [810 El ·\n\n (2) It would not be possible to say in the case of an individual member of the family unit that when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land \"within the ceiling limit applicable to\n\nliim\" and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause (I) of Art. 3 !A in so far as the land held by him is concerned. It may be that by reason of the creation of an artificial concept of a family unit, one or more members of the family 'lmit may lose the land held by them, but that cannot be helped, because having regard to the social and eco'nomic realities of our rural life and with a view to nullifying transfers effected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area. [809 H, 810 A-Bl\n\n(3) Even if the Act, in so far as it introduces an artificial concept of a family unit and fix-es ceiling on holding of agricultural land by 'such family unit, is violative of the second proviso to clause (I) of Art. 31A it is protected by Art. 318, by reason of its inclusion in the Ninth Schedule.\n\n[808 F-G] Hasmukh/al Dayab/wi v. State of Gujarat [1977] 1 SCR 103 followed. ( 4) It is an elementary rule of construction that a statutory pro\".isiop must al ways be interpreted in a manner which would suppress the m1schwf and advance the remedy and carry out the object and purpose of the legislation. Our Constitution has a social purpose and an economic mission and every Article of the Constitution must, therefore, be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish.\n\n[803 F-G]\n\n(5) The aim and obi<:ctive of Art. lB _is to mae th~ m?st comprehenshc provision for saving agra~1n rform leg1slat10~ from mvahdat10n on 1:be ground of infraction of any prov1s10n m Part III and 1t must therefore be so mterpreted as to have the necessary sweep and coverage.\n\nAn expansive _interpretation must be placed on the language of Art. 31 B so to carry out the obJect and purpose of enacting that Article.\n\n[803 F-H]\n\n~I\\.\n\n(6) Article 31.B is sufficiently wide to protect legislation not c•.U)' where it takes away or abridges any of the rights conferred by any provisions of Part Ill but also where it is inconsistent with any such provisions.\n\n[803 H, 804 A]\n\n( 7) The words \"such Act, Regulation or provision is inconsistent with or lakes away or abridges any of the rights conferred by ani provision of this Part\" m Art.3 lB are clearly an echo of the language of clauses ( 1) and (2) of Art. 13 and they have obviously been employed because the enactments specified Ill th\". Ninth Schedule may be pre-constitution as well as post-constitution laws.\n\nBut, it _woud not be right to introduce an artificial dichotomy in Art. 31 B by correlatmg the first part of the expression namely, \"is inconsistent wirh ..... . ani: pr_ovisions of this . Part\" and confining its applicability to pre-constitution legtSlat10n and correlatmg and confining the applicability of the other Part of che expression namely \"takes away or abridges ; my of the richtsconferred by; any provisions of this Part\" to post constitution legislation.\n\nHoth the parts of the expression, on a plain natural construction of the langua\"c o; Art. 3 lB apply equally to post-constitution legislation as well as pre-c0nstit~1tion\n\nlegislation.\n\n[803 D-F] .\n\n(8) The Second Proviso to clause (1) of Art. 3 !A does confer a Fundamental Right.\n\nThe second proviso to Art. 3 lA confers a right higher than the one under clause (2) of Art. 31 on a person in respect of such portion of land under his personal cultivation as is within. the ceiling limit applicable to him and if te Act by reating an artificial concept of a family unit nnd fixing ceiling on holdmg of agricultural lands by such family unit enables land within the ceiling limit to be acquired without payment of full market value, it would be taking away or abridging the right conferred by the second proviso, but it would be protected by Art. 31-B.\n\n[804 B, 806 E]\n\n(9) The second proviso to clause (1) of Art. 31A is also couched in the negative language like clauses (1) and (2) of Art. 31 and it imposes a fetter on the exercise of the legislative power of the State by providing. that the Sta1e shall not be entitled to make a Jaw authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment; of compensation at a rate not less than the market value.\n\nThis limitation on the legislative power of the State is the measure of the fundament&l right conferred on the owner of the land.\n\nIt is by imposing limitation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit. [805 D-E]\n\nState of Bihar v. Ka111es/1war Singh [1952] SCR 889 @ 986; R. C. Cooper\n\nv. U11io11 of India [1970] SCR 530 @ 569, reiterated.\n\n(10) Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other.\n\nThey are merely two different facets of the same provision.\n\nWhat is !imit.ation of legislative power from the point of view of the State is conferment of nght from the point of view of holder. of land within the ceiling limit.\n\nThe former secures the latter.\n\nThe second proviso in effect guarantees protection to the holder against acquisition of that portion of the land which is within the ceiling limit except on payment of the market value of such land.\n\nThe secon.d proviso clearly confers a right to property on a person holding land under his personal cultivation. r805 F-Gl\n\n(11) The Explanation to s. 3 of the Constitution (Seventeenth Amendment) Act 1964 does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause ( l) of Art. 3 lA, it shall, to the extent of contraventon be void. Obviously this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Act, 1955, even if in cont.ravention of the second provise to clause (l) of Art. 3 lA y.1ould have been valtd under _.it. 31 B snd that result the Parliament did not wish to produce.\n\nIt was mamtestly fiOl the intention of Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where if conflicts with the second proviso to clause (1) 0f Art. 3 lA and that Art.\n\n31 B should not protect it from invalidation. [806 G, 807 F-Hl\n\n' lo(\n\n• .,\n\nIi>. G. MAHA.JAN v. MAHARASHTRA (Bhagwaii, J.) 793\n\n(1_2 J It is true that the orthodox function of an 'explanation is to explain the meamng and effect of the main provisif>n to which it is an explanation and to clear up any doubt or ambiguity in it, but ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or clefiect such intention.\n\n[807 D-E]\n\n( 13} It is true that the proper. function of a. proviso is to except or qualify something enacted m the substanhve clause, which, but for the proviso would be within that clause.\n\nThe question is one of interpretation of the provfao and there is no rule that the proviso must always be restricted to the ambit of th main enactment.\n\n(805-H, 806A]\n\nIshwarlal Thakarlal A/111a11ia v. Motablwi Nagjibliai (1966] 1 SCR 367 @; 373, followed.\n\nC. A. 1040176.\n\n(14) The inclusion of the Punjab Land Reforms Act, 1972, in the Ninth Schedule as entry 78 by the Constitution (Thirty Fourth Amendment) Act, 1974 subsequent to the decision of the High Court entitles it to the immunity conferred by Art. 3JB. It does not suffer from any of the constitutional infirmities alleg ed in the writ petition.\n\n[814 C-E] Hasmllklilal v. State of Gujarat (1977) I SCR 103, applied.\n\nC.A. 1307176.\n\n(15) Section 5, sub-section (6) of the U.P. Imposition of Ceiling on Lrnd Holdings Act is valid and its constitutional validity cannot be assailed by reason of the immunity enacted in Art.\n\n3JB.\n\nSection 5(6), even if it contravenes the second proviso to clause (l) of Art. 31A is validated under Art. 31B by virtue of inclusion under the protective umbrella of the Ninth Schedule.\n\n[~12 C-E Per .Krishna Iyer, J. (concurring)\n\n(l) The Maharashtra, the Punjab and the 1.J.P. Acts are not unconstitutional taking the constructive view that Art. 31-B vis-a-vis agrarian reforms, is a larger testament of vision and values in action and a bridge between individual right\n\nand collective good.\n\n(824 B-C] E\n\n(2) The purpose of Art. 31-B is conferment of total immunity from challenge on the score. of violation of Part ill.\n\nThe words used are as comprehensive as English language permits.\n\nNo land reform law shall be narrowed down by use of Part III, once included in the Ninth Schedule.\n\nNo matter what the grounds are, if they are traceable to Part III in whatever form, they fail in the presence of Art. 3 lB. No master of English legal diction could have med, so tersely, such protean words which in their potent totality bang, bar and bolt the door against every possible invalidatory sally based on Part III.\n\nIt is not correct to argue that the phraseology of Art. 3 lB must be correlated to Art. 13 and\n\nread with a truncated connotation.\n\n(817 H, 822 E-F, G]\n\n(3) Every Fundamental Right, from the point of view of the - individual. gives a right and from the stand point of the State is a restraint.\n\nWbethcr the manner of expression used is in positive terms or negatively, whether the >; tatutory technique of a proviso, saving clause, exception or explanation, is used or a direct interdict is imposed, the substantive content is what matters.\n\nMany of the Articles in Part HI worded in a variety of ways, arm the affectod individua _ with a right and pro tanto _prohibit the legislature and the execntivc fron1 cn<Jcting or acting contra. [823 A-Bl ( 4) A great right is created in favour of owners to get compernation '1t net less than the market value if lands withiii the ceiling limit and in pec, on; il cultivation are acquired by the State.\n\nThis is a fundamental right and is a crenturo of the 2nd proviso to Art. 31-A(l).\n\nAn independent provision may occasionall) incarnate as a humble proviso. [823 F-G]\n\n(5) It is absolutely plain that in the context setting and purpose of a provi sion even a proviso may function as an independent clause.\n\n[823 G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos : 1132-1164 of 1976\n\n_ (Appeals by Special Leave from the Judgement and Order dated 13-8-76 of the Bombay High Court (Nagpur Bench) in S.C.A. Nos. 1758, 1481, 2130/75, 358, 359/76, 2089, 1456, 1818, 1823, 1824, 1950, 1951/75, 53/76, 803/76, 1440/75, 340/76, 1449, 1452, 1394/75, 40, 771; 1431, 1531, 1532/76, 1652, 1622/75, 120, 126, 428, 610, 1317, 1831/75 respectively) and\n\nCivil Appeal No. 1307 of 1976\n\n (From the Judgment and Order dated 2-9-1976 of the Allahabad High Court in Civil Misc. Writ No. 9257 /75) and\n\nCivil Appeals Nos. 1040 of 1975 and 1220-1248 of 1976\n\n(From the Judgement and Order dated 14-2-74 and 1-11-73. of the Punjab & Haryana High Court in Civil Writ Nos. 3150, 3145, 3210, 3254, 3287, 3288, 3293, 3456, 3457, 3458-63, 3469-3470,. 3472, 3547-3550, 3564, 3565-3568, 3629/73 and 4004/74) and\n\nSpecial Leave Petition (Civil Nos. 3023-30.n, 3894. 4026-4027. 3177-3197, 3203-3213, 3358-3359, 3392-3404, 3477-3483, 3661- 3663, 3059-3060, 3487-3488, 4047, 3365-3377, 3406-3434, 3439- 3464, 3495-3511, 3516-3517, 3519, 3529-3551, 3645-3660, 3680- 3695, 3719-3782, 3787-3816, 3843-3846, 3853-3864, 3867-3868, 3696-3703, 3199, 3467-3476, 3524-3537, 3597-3621, 3889-3893, & 3899-3902/76.\n\nV. M. Tarkunde, (CAs. 1132 &\n\n1147), S. N.\n\nKlwrdekar, in CAs. 1132 & 1133 M/s. Vallabh Das Mohta, in CA .. 1156176, Dr ..\n\nN. M. Ghatate, S. Balakrishnan & A. M. Bapat, in CAs. 1132 & 1147 for the appellants in CAs. 1132-1136, 114 7 & 1150-64.\n\nS. B. Wan & Mrs. Jayashree Wad, for the Appellants in CAs. 1137-1146, 1148-49.\n\nNiren De, Attornev General in CAs. 1132 & 1137, M/s. M. M.\n\nKazi & M. N. Shroff, for the Respondents\n\nNiren De, Attorney General, R. N. Sachthey, for the Attorney General in CAs. 1132, 1307 & 1040.\n\nK. Rajendra Chowdhary, for the interveners M/s. Shankar Balaji Jagtap, Madan Lal Fakir Chand Dudheida and Chandrabhan Roop• chand Dalw!e (in CA. 1132). ·\n\nL. N. Sinha, Sol. Genl. 0. P. Rana, CA. No. 1307 of 1976, for the Appellants.\n\nS. Markendaya, for the Respondents in CAs. Nos. 1040/75 & 1220- 1248 of 1976 :-\n\nH L. N. Sinha, Sol. Genl., (!. S. Wasu, Advocate General, Punjab)\n\n0. P. Shanna, Mrs. N. Uppal and Miss Mus11111 Chaudhary, for the Appellants.\n\n• •\n\nD. G. MAHAJAN v. MAHARASHTRA (Bhagwuii, J.) 795\n\nV. M. Tarkunde, in CA. 1223-(M/s. K. P. Bhandari. J. B.\n\nA Dudachanji and'D. N. Mishra, For the Respondents in CAs. Nos. 1223 .&1225 /76.\n\nMr. V. M. Tarkunde, for Mrs. Gita Bhadur---!Yl/s. K. P. Bhandari, J. B. Dadachanji, M. M. Ahuja & D. N. Mishra, for the Interveners .Mrs. Gita Bhadur, Brij Bhushan Shinghal, Smt. Lal A mol Kaur, Mrs .\n\n.Uma Shinghal in CA. 1220.\n\nK. L. Jagga, D. D. Sharma, Sant Singh in CAs. 1220-48 and 1040.\n\nR. N. Sachthey, State of Haryana.\n\nFor the Petitioners in: S.L.Ps. (Civil)\n\nNaunit Lal and Miss Lulita Kohli, SLPs. Nos. 3023-27, 3894 & c 4026-27.\n\nS. B. Wad and Mrs: Jayashree Wad, SLPs. Nos. 3177-97, 3207-13, .3358-59, 3392-3404, 3477-3483, 3661-3663, 3059--69, 3487-88 & 4047/76 & 3199/76.\n\nVallabh Das Mohta, N. M. Ghatate and S. Balakfishnan, 'SLPs. Nos. 3365-77, 3406-34, 3439-64, 3495-3511, 3516-17, 3519, D 3529-51, 3645-3660, 3680-95, 3719-82, 3787, 3816, 3843-46, 3853- 64, 3867-68 of 1976.\n\nK. B. Rohtagi, M. K. Garg and M. M. Kashyan, SLPs. Nos. 3696- 3703 /76.\n\nA. G. Ratnaparkhi, SLPs. Nos. 3467-3476/76.\n\nE V. N. Ganpule, SLPs. (Civil) Nos. 3524-27 /76.\n\nM. S. Gupta,& B. B. Marwal, SLPs. (Civil) Nos. 3597-3621/76.\n\nR. A. Gupta, SLPs. (Civil) Nos. 3889-93/76.\n\nMrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur, A. K.\n\nSharma and K. C. Sharma, SLPs. (Civil) Nos. 3899\"-3902/76.\n\nThe Judgments of A. N. Ray, C.J., M. H. Beg, P. N. Bhagwati and P. N. Shinghal, JJ. were delivered by Bhagwati, J., V. R. Krishna Iyer, J. gave a separate Opinion.\n\nBHAGWATI, J. This is a group of appeals preferred by certain landholders in the State of Maharashtra against the judgment of the Bombay High Court upholding the constitutional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 (hereinafter referred to as the Principal Act) as amended by the Maharashtra Agricultural Lanas (Lowering of Ceiling of Holdings) (Amendment) Act, 1972 (hereinafter referred to as the Maharashtra Act 21 o' 1975), the Mah•arashtra Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter referred to as :Maharashtra Act 4 7 of 1975) and the Maharashtra Agricultural Land,;\n\n(Ceiling of Holdings) {Amendment) Act, 1975 (hereinafter referred to as Maharashtra Act 2 of 1976).\n\nThe Principal Act was enacted\n\n3-206SCJ/77\n\n7 96\n\nSUPREME COURT REPQRTS\n\n[1977) 2 S.C.R.\n\nby e Maharashtra 1:-egislature in implementation of the Directive Pnnc1ples of State Policy _contained in clauses (b) and (c) of Art. 3<} of the Constitution.\n\nIt imposed a maximum ceiling on the holding of agricultural land in the St>ate of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons.\n\nDuring the subsequent years, various amendments were made in the Principal Act from time to time and the Principal Act, as amended upto that date, was included in the Ninth Schedule by the Constitution (Seventeenth ,\\.mendment) Act, 1964.\n\nThereafter certain further amendments were made in the Principal Act and the amending Acts were also included in the Ninth Schedule as a result of the Constitution (Thirtyninth Amendment) Act, 1975.\n\nThen came three major amending Acts which, according to the appellants, introduced the vice of unconstitutionality in the Principal Act.\n\nMaharashtra Act 21 of 1975 <; fleeted radical .amendments in the Principal Act by lowering ceiling on agricultural holding and creating an artificial family unit for fixing ceiling on holding of agricultural land.\n\nThis amending Act was fol- _ lowed by Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 which affected certain further changes in the Principal Act but these are not very material for the purpose of the present appeals.\n\nSince these three 'amending Acts were enacted after the Constitution (Thirty-ninth Amendment) Act, 1975, they were included in the Nmth Schedule along with certain other enactments by the Constitution (Fortieth Amendment) Act, 1976.\n\nThe result was that the Principal Act, as amended by all the subsequent amending Acts including Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was protected against invalidation under Art. 31-B.\n\nThe appellants are landholders in the State of Maharashtra and\n\nince the effect of the prvisions of the Principal Act, as ame'lded by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expropriate a part of the lands telonging to them, they preferred writ petitions in the High Coult of\n\n; Bombay challenging the constitutional validity of the Principal Act as amended by these amending Acts on various grounds. It is not necessary for the purpose of the present appeals to set out the different grounds on which the constitutional challenge was based, since none of these grounds has been pressed before us save one based on contravention of the second proviso to cl. ( 1) of Art. 3 lA.\n\nThe only contention that has been urged before us on behalf of the appellant> is that the Principal Act, as it stands after its amendment by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Mahara>htra Act 2 of 1976 is void, in so far as it creates an artificial family unit and fixes a ceiling on holding of land by such fumily unit, since it is violative of the second proviso to clause ( 1) of Art. 3 lA and. is nor saved by the immunising provision enacted in Art. 31-B.\n\nTnis contention was also urged before the High Court but it was negatived on the ground that Art. 3 lB afforded complete immunity to the provisions of the Principal Act.\n\nWe may make it clear at this stage that for the sake of convenience, when we hereafter refer to the Act, we mean the Principal Act as amended by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976.\n\n'II\n\nD. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 79 7\n\n1be •appellants in the present appeals assail this view taken by the A High Court and the only question which, therefore, arises for consideration is as to whether the impugned Act, in so far as it creates an artificial concept of family unit for fixing ceiling on holding of land by such family unit, is in conflict with the second proviso to clause (1) of Article 3 lA and if it is, whether it is protected under Article 31-B ? Though logically the first part of the question as to infraction of the second proviso to clause (I) of Article 3 lA should B receive our consi_deration earlier in point of time, it would be convenient first to exa.mine the second part of _the question, for if we are of the view that Article 31-B immunises the Principal Act against attack on the ground of violation of the second proviso to Article 31A, it would become unnecessary to consider whether in fact there is any infraction of the second proviso to clause (1) of Article 31A.\n\nBut before we examine the scope and applicability of Article 31B in C the present case, it would be desirable to refer to a few relevant provisions of the Principal Act.\n\nThe Preamble and the long title of the Principal Act show that it was enacted to impose a maximum ceiling on the holding of agricultural land in the State of Maharashtra and to provide for the acquisition of land held in excess of ceiling and for the distribution of such D land to landless and other persons with a view to securing the distribution of agricajtural land in a manner which would best subserve the common good of the people.\n\nSectio_n 2 contains various definitions of which only one is material, namely that contained in subsection ( 11A). That sub-section defines family unit to mean a family\n\nunit as explained in section 4. Section 3 imposes a prohibition on holding of land in excess of ceiling area and so far as material, it E reads as follows :\n\n\"3 (1) Subject_ to the provisions of this Chapter and Chapter III, no person or family unit shall, after the o:.>mmencenient date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided.\n\n* * * *\n\n(2) All land held by a person, or as the case may be, a family unit whether in this State or any other part of India in excess of the ceiling area, shall, notwithstanding anything contained in any law for the time being in force or usage, be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided (or surplus land.\n\nIn determining surplus land from the holding of a person or as the case may be, of a family unit, the fact that the' person or any member of the fa1nily unit bas died (on or after the commencement date or any date subsequent to the da-te on which the holding exceeds the ceiling area, but\n\nbefore the declaration of surplus land is made in respect of H that holding) shall be ignored; and accordingly, the surplus land sh-all be determined as if that person, or as the case may be, the member of a family unit had not died.\"\n\nA \\Vhat ohall be regarded as land held by a family unit is laid down in section 4, sub-section ( 1) which provides :\n\n\" ( 4) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of .:ictermining... the ceiling area of the family unit, be deemed to be held by the family unit.\n\nThen there is an explanation to this sub-section which explains a 'famiiy unil' to mean :\n\n.. (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters; if any; or\n\n(b) where any spouse is dead, the surviving spouse or spouses, and the m.inor sons and minor unmarried daughters; or\n\n( c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.\"\n\nSec.:tion 5, sub-section (1) read with the First Schedule provides for different ceilings for different classes of lands in the various districts and talukas of the State and sub-sections (2) and (3) lay down the method of computation of the ceiling area where different classes of lands are held by a person or a family Unit.\n\nThen follows section 6 which is in the following terms :\n\n\"Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one-fifth of the ceiling area for each meinber in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area.\"\n\nThis is followed by sections 8 to 1 lA which de-al with ri:strictions on transfers and acquisitions and consequences of contraventions and sections 12 to 21A which provide inter alia for holding an enquiry for determination of land held in excess of the ceiling area and making of a declaration by the Collector stating his decision on the total area of land which is in excess of the ceiling area and the area, description and full particulars of the land which is delimited as surplus land.\n\nSub-section ( 4) of section 21 provides that •as soon as may be after the announcement of the declaration, the Collector shall take in the prescribed manner possession of the land which is delimited as surplus and the surplus land shall, with effect from the date on wh'.ch possession is taken, be deemed to be acquired by the State Government for the purposes of the Act and sh•all accordingly vest, without further assurance and free from all cncnmbrances, in the State Government.\n\nSections 21 to 26 provide for determination and payment of compensation for the surplus land acquired by the State Government.\n\nThen follow provisions in sections 27 to 29 in regard to distribution of surplus land.\n\nThese provisions require the State\n\nD. G. MAHAJAN v. MAHARASHTl{A (Bhagwati, J.) 799\n\nGovernment to distribute the surplus land in certain order of priority with a view to carrying out the purposes of the leg:slation.\n\nSections 30 to 36 lay down the procedure for holding inquiries under the Act and also provide for appeal mechanism.\n\nThese are followed by certain miscellaneous provisions in sections 37 to 49 which are not material for the purpose of the present~ appeals. ·\n\nIt will be seen from this brief resume of the relevant provisions of the Act tht ther~. are two uits recognised by the Act for the purpose of fixmg ce1lmg on holdmg of agricultural !•and.\n\nOne is 'person' which by its definition in section 2, sub-section (22) includes a family and 'family' by virtue of section 2, sub-section ( 11) includys a Hindu Undivided family and in the case of other persons, a group or unit the members of which by custom or usage, are joint in estates of possession or residence, and the other is 'family unit' as defined in , the Explanation to section 4 sub-section ( 1) .\n\nSo far as the applicability of the Act to a 'person' is concerned, there is no conceptual difficulty, for any person, natural or artificial, can hold land and if the land held by' such person is in excess of the ceiling laid down in section 5, sub-section (1) read with the First Schedule, the surplus land would vest in the St•ate Government. . But the Act has created an artificial 'family unit' and a person and his spouse and their minor sons and minqr unmarried daughters are clubbed together for the purpose of constituting a family unit and all lands held by each member of the family unit, whether jointly or separately, are aggregated togther and by a fiction of law deemed to be held by the family unit.\n\nWe have described the family unit as contemplated in the Act a> an artificial legal conception because in quite a few cases it would be different from the family as known in ordinary parlance : the latter would include 'even major sons and unmarried daughters which the former by its definition does not.\n\nIt is clear from the scheme of the Act that for the purpose of determining whether land is held in excess of the ceiling area, a family unit is taken as a unit and the limitation of ceiling area is applied in relation to the land deemed to be held by such family unit and in such a case, each individual member of the family unit is not treated a:s a separate unit for the purpose of applicability of the limitation of ceiling.\n\nThe land held by each member of the family unit is fictionally treated as land ' held by the family unit and to tpe aggregate of such land which .is deemed to be held by the family unit, the limitation of the ceiling area is applied.\n\nThis feature of clubbing together the land held by each member of family unit for the purpose of applying the Emitation\n\nof ceiling area, it may be noted, was introduced by the amendments made by Maharashtra Act 21 of 1976 almost fourteen years after the . Principal Act was enacted and it is interesting to notice the reasons why it had to be done.\n\nThe necessity for wide ranging radical lal)d reforms in order to improve our rural econo1t1y was acutely realised. w?n, on .attaining independence, we became free to mould our dest1111e.s.\n\nWith that end in view, immediately after independence, the leg1s!atures of the H country started enacting laws for bringing about a.ranan ref?rm a.s a part of the process of socio-economic reconstruction.\n\nThe 1mpos1tion of ceiling on agricultural holdings was found necessary as a part\n\nof the scheme of agrarian reform because it was calculated to remove undue balance in society resulting from landless dass on the one hand and concentration of land in the hands of a few on the other.\n\nThe concept of socio-economic justice embodied in the Constitution in fact rendered the imposition of ceiling inevitable, as this step was symbolic. of new social ideas. ('1) The growth of monopolistic tendencies m land ownership had to be arrested, if the optimum .area was to be made available to the largest number of people.\n\nThe Panel on Land Reform set up by the Planning Commission in 1955, therefrom, unanimously accepted the principle that there should be an absolute limit to the amount of land which any individual might hold and .observed that the policy of imposition of ceiling should be able to make contribution towards achieving the following objectives :\n\n(1) meeting the widespread desire to possess land; (ii) reducing glaring inequahties in ownership and use of land; (iii) reducing inequalities in agricultural income and {iv) enlarging the sphere of selfemployment.\n\nThe Second Five Year Plan also pointed out : \"In the conditions of India large disparities in the distribution of wealth and income are inconsistent with economic progess in any sector.\n\nThis consideration applies with even greater force land.\n\nThe area of land available for cultivation is necessarily limited.\n\nIn the past rights in land were the principal factor which determined hoth social status and economic opportunity for different groups in the rural population.\n\nFor building up a progressive rural economy, it is essentia!l that dissimilarities in the ownership of land should be greatly reduced.\" and added that this step would go a long way\n\n\"--to afford opportunities to landless sections of the rural population to gain in social st>atus and to feel a sense of opportunity equally with other sections of the community.\" It is emphatic that in the conditions which prevail in rural India, the possession of some land in itself would, be an immunity against abject poverty and would ensure for the owner some minimum resources to fall back upon and his economic and _social condition would also improve on account of his owning some land which he can call as his own.\n\nIhe Agricultural Labour Enquiry conducted in the 1960s showed that the average of per capita income of an agricultural labourer with land was much more than the average or per capita income of an agricultural labourer without land.\n\nThe policy of imposing ceiling on agricultural holdings was, therefore, initiated in the country with the twin objectives of changing the skewed distribution of agricultural land ownership in the country and making some land available for distribntion among the landless.\n\nIt was in implementation of this policy that the Principal Act was passed by the l\\faharashtra Legislature. in 1961.\n\nThe ceiling which was initially fixed was found to be rather high and it had, therefore, to be lowered by\n\n(1) India-Proi:ress of Lqnd Reforms 1955, p. 19.\n\n). ....\n\nD. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 8 0 1\n\nsubsequent amendments.\n\nBut until the enactment of Maharashtra Act 21 of 1976, ceilifl:g 'Ys made applicable only to holding of agricultural at lands by md1v1duals.\n\nHowever, it was felt that if the ceiling law was to be really effective, it was necessary to take the fumily as a unit for the purpose of applying the ceiling.\n\nThere were two main reasons which inclined the legislature to this view.\n\nOne was that, in the context of the social and cultural realities of Indian rural life, \"family is the real operative unit in land ownership as in land management\" and, therefore, in the fixing of the ceiling, the aggregate area held by all the numbers of the family should be taken into account\"(1) and the other was that taking the family as a unit and imposing ceiling on the aggregate land held by all the members of the family acted as a disincentive to effect mala fide transfers in the names of close relations such as wife, minor sons and unmarried daughters with a view to bringing the holdings within the ceiling and operated to nullify such transfers where they had been effected with a view to circumventing the ceiling imposed on land holding. Maharashtra Act 21 of 1975, therefore, introduced the con~ cept of family unit and fixed ceiling on holding of agricultural land by the family unit.\n\nThe question is whether the Act, in so far as it makes this mdical provision, is protected under Article 31-B, even if it is found to violate the second proviso to clause ( 1) of Article\n\n31A.\n\nThe determination of this question turns on the true interpretation of Article 31-B and its applicability in relation to the second proviso to clause (1) of Article\n\n31A.\n\nArticle 31A, clause (1) provides that, notwithsmnding anything contained in Article 13, no law falling wit:llin any of the categories specified in sub-clauses (a) to { e), shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31.\n\nThen follow two provisions which are in the following terms : \"Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent; Provided further than where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure smnding thereon or appurtenant thereto, unless the law relating to acquiring of srich land, building or structure, provides for payments of compens•ation at a rate which shall not be less than the market value thereof.\"\n\nArticle 31A together with the first proviso was added in the Consti- H tution• by the Constitution (First Amendment) Act, 1951, while the\n\n(!) Report of the Committee on 'Size of Holdings' set up by the Panel on Land Reforms.\n\nsecond proviso was introduced by the Constitution (Seventeenth.\n\nAmendment) Act, 1964.\n\nArticle 31-B was also introduced in the Constitution at the same time as Article 3 lA and it reads as follows :\n\n\"31-B.\n\nWithout prejudice to the generality of the provisions contained in article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of thfs Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.\"\n\nThe argument of the appellants was that on a true construction of the language of Article 31-B a post-Constitution enactment such as the Act, is protected from invalidation only when it takes away or abridges any of the rights conferred by any provision of Part Ill and not when it merely transgresses a restriction on legislative competence imposed by any provision of that part and is, therefore, inconsistent with any provision.\n\nThe later ground of validation during curing generally any inconsistency with any provision of Part III is available only in case of pre-Constitution legislation. What is, therefore, to be seen in the present case is whether any right is conferred by the second proviso to clause (1) of Article 31A which has been taken away or abridged by the Act, for then alone can the Act which is a post- Constitution enactment, earn the immunity given by Article 31-B. The appellan13 contended that the second proviso to clause (1) of Article 3 lA does not confer any fundamental right but merely imposes a limitation on the legislative competence of the legislature and, therefore, Article 31-B does not exonerate the Act from its obligation to conform with the requirement of the second proviso to clause ( 1) of Article 3 lA.\n\nWe do not think this contention is well founded. It is plainly erroneous.\n\nIt flies in the face of the express language of Article 31-B and also ignores the true meaning and effect of the second proviso to clause ( 1 ) of Article 31 A.\n\nWhilst interpreting Article 31-B it is necessary to bear in mina the object and purpose of the e1iactment of that Article by the Constitution (First Amendment) Act, 1951.\n\nThis article was introduced in the Constitution within almost eighteen months of the commencement of the Constitution, beoause it was found that agrarian reform legislation was running into rough weather and the policy of agrarian reform was being frustrated.\n\nWithout a dynamic programme of agr::irian reform, it was not possible to change the face of rural India anrl to uograde the standard of living of the large masses of people living in the villages.\n\nIn fact the promise of agrarian reform is imp11cit in the Preamble and the Directive Principles of State Policy and it is one of the economic foundations of the Constitution.. It was, therefore felt that laws enacted for the purpose of bringing about agrarian reform in its widest sense-agrarian reform which would be\n\n.j,,'.\n\n• i\n\nI}, G. MAHAJ;\\N v. MAHARASHTRA (Bhagwati, J.) 803\n\ndirected against gross inequalities in land ownership, disincentives to production •and desparate backwardness of rural life and which would cover not only abolition of intermediary tenures z•amindaris and the like but restructuring of village life itself taking in its broad embrace the entire rural population-should be saved from invalidation.\n\nIt was with this end in v'iew that Article 31-B was introduced in the\n\nonstituion alC'.ng with Article 3 lA.\n\nThe object and purpose of\n\nmtr.odumg Articl_es 3.lA. and 31-B was to protect agrarian reform leg1slat10n from mvahdation.\n\nWe shall consider the provisions of Article 31 A a little later when we. examine rhe true meaning and effect of the second proviso to clause ( 1) of that •article.\n\nBut so far as Article 31-B is concerned, it is clear on its plain terms that it saves from invalidation an enactment specified in the Ninth Schedule even if it happens to be \"inconsistent with or takes away or abridges any of the rights conferred by, any provisions, of Pmt III\".\n\nIt is immaterial whether such enactment is inconsistent with any provis!ons of Part III or takes away or abridges any of the rights conferre:d by any such provisions, for both infirmities are cured by Article 31-B.\n\nThe words \"such Act, Regulation or provision is inconsistent wiih or takes away or abridges any of the rights conferred by, any ]JrOYisions of this Part \" in Article 31-B are clearly an echo of the language of clauses ( 1) and (2) of Article 13 and they have obviously been employed because the enactment specified in the Ninth Schedule may be pre-Constitution as well as post-Constitution laws.\n\nBut it would not be right to introduce an artificial dichotomy in Article 31-B by correla_ting the first part of the expression, namely, \"is inconsistent with-any provisions, of this Part\" and confining its applicability to pre-Constitution legislation and correlating and confining the applicability of the other part of the expression, namely, \"takes away or 'abridges any of the rights conferred by, any provisions of this Part to post-Constitution legislation.\n\nThat would be a highly unnatural construction unjustified by the language of Article\n\n31-B.\n\nBoth the parts of the expression, on a plain natural construction of the language of Article 31-B, apply equally to post-Constitution legislation as well as pre-Constitution legislation.\n\nIt must be remembered that the aim and objective of Article 31-B is to make the most comprehensive provision for sa\\•ing agrarian reform legislation from invalidation on the ground of infracyion of any provision in Part lll and it must, therefore, be so interpreted as to have the necessary sweep and coverage.\n\nIt is an elementary rule of construction that a statutory provision must always be interpreted in a manner which wo_uld suppress the mischief and advance the remedy and carry out the ob1ect and purpose of the legislation.\n\nMoreover, we must not forget. as pointed out by Mr. Justice Holmes, that it is the Constitution that we are expounding.\n\nOur Constitution has a social purpose and an economic mission and every article of the Constitution must. therefore. be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomp:ish.\n\nThe_ Court must place an expansive interpretation on the language of Article . 31-B so as to carry out the object and purpose of enacting that article. We must, in the circumstances hold that Article 31-B is sufficiently wide to protect legislation nt only where it takes away or abridges any f the rights conferred by any provisions of Part III, but also where it\n\nis inconsistent with any such provisions.\n\nIt must follow a fortiori that even if the second proviso to clause (1) of Article 31A is construed .as_ not conferring any fundamental right but merely imposing a restnction on legislative competence, the Act, in so far as it contrayenes or is inconsistent with the second proviso to clause ( 1) of article 31A would still be saved from invalidation hy Article 31-B.\n\nBut we are clearly of the view that the second proviso to clause ( 1). o~ f\\rtile 3 ~A does confer a fundamental right.\n\nThis conclusio~ is nev1ta_ble 1f we look at the conspectus of the provisions contamcd m Article 31 and 3 lA. These provisions occur under the heading \"Right to Property\" and they define and delimit the right to property guaranted under Part III of the Constitution.\n\nArticle 31, clause (1) protects property against deprivation by executive action which is not supported by law. It is couched in negative language, but, as pointed out by S.R. Das, J., in State of Bihar\n\nv. Kameshwar Singh(')\" it confers a fundamental right in so far as it protects private property from State action.\n\nThe only limitation put upon the State action is the requirement that the authority of\n\nlaw is pre-requisite for the exercise of its power to deprive a person of his property.\n\nThis confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right.\n\nIt is . to emphasise this immunity from State action as a fundamental right that the clause has been worded in negative language''.\n\nArticle 31, clause ( 1) thus, by giving limited immunity from State action, confers a fundamental right.\n\nClause (2) of Article 31 then proceeds to impose limitation on the exercise of legislative power by providing that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. This clause is also couched in negative language, but it confers a fundamental right of property on an individual by declaring that his property .shall not be liable to be_ compulsorily acquired or requisitioned' except for a public purpose and the law which authorises such ;:icquisition or requisitioning must provide for \"payment of an amount which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law\".\n\nThe limitation imposed on the power of the legislature to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right conferred by the clause.\n\nIt was for this reason pointed out by this Court in R. C. Copper v. Union of Tndia(') : \"The function of the two clauses--dauses (1) and (2) of Article 31 -is to impose limitations on the power of the State and to declare the corresponding guarantee of the individual to his right to property.\n\nLimitation on the power of the State and the guarantee of right are plainly complementary\" (Emphasis supplied).\n\nArticle 3 lA\n\n(1) [1952] S.C.R. 889 at 988.\n\n2) [1970] 3 S.C.R. 530 at 569.\n\n. ..\n\n•' '\n\n'Ji\n\nD. <!I. MAHAJAN v. MAHARASHTRA (Bhagwati, !.) 805\n\ncarves out an exception to the applicability of Article 31-and also A Articles 14 and 19-and immunises certain categories or agrarian reform legislation from attack on the ground that they violate any of these three articles.\n\nEven if any agrarian reform legislation falling within the specified categories infringes Articles 14, 19 and 31, it would not be invalid. Having regard to the high objective of bringing about agrarian reform in the country with a view tci improving the life conditions of the common man, such agrarian reform legis- B lation is not required to meet the chat:enge of any of these three articles.\n\nBut, in order to earn this immunity, the first proviso requires that such agrarian reform legislation when made by a State must receive the assent of the President.\n\nThat is a condition for the applicability of the exception contained in Article 31A. Then follows the\n\nsecond proviso which enacts an exception to this exception. It says that even where a law makes any provision for acquisition by the C State. of any estate and thus falls within one of the categories\" specified in Article 31A, it would not qualify for immunity under the provisions of that article, if it seeks to acquire any portion of the land held by a person under his personal cutivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law, in order to be valid, would have to provide for payment of compensation at a rate which shall not be less than D the market value of the land sought to be acquired. This provision is also couched in negative language like clauses (1) and ( 2) of Article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held' by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment of compensation at a rate not E less than the market value.\n\nThis limitation on the legislative power of the State is the measure of the fundamental> right conferred on the owner of the land.\n\nIt is by imposing limitation on the exercise of legislative power that protectfon is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit.\n\nRestriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to F each other. They are merely two different facets of the same provision.\n\nWhat is limitatio°' of legislative power from the point of view of the State is conferment of right from the p_oint of view of the holder of land within the ceiling limit.\n\nThe former secures the latter.\n\nThe second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling l:•mit except on payment of the market value of such land.\n\nIt G will, thus, be seen that the second proviso clearly confers a right of property on a person holding land under his personal cultivation. This interpretation was, however, assailed by the appellants on the ground that it would convert the second proviso into a substantive provision and that would be contrary to the well recogn;•sed canon of construction that a proviso must be read so as to carve out from the main provision something which would otherwise fall within it.\n\nNow, it is H true that .the proper function of a proviso is to except or qualify something enacted in the substanti•ve clause, which, but for the provision would be within tliat clause but ultimately, as pointed out by this\n\nCourt in Ishverlal Thakorelal Almaula v.\n\nMotibai Nagjibhai (') \"-the question is one of interpretation of the proviso : and there is no rule that the proviso must always be restricted to the ambit of the main enactment\".\n\nHere, the intention of the legislature in enacting the second proviso is very clear and that is toi ensure payment of full market value as compensation to a person in personal cultivation of his land where a portion 0£ the land within the ceil}ng limit applicable to him is acquired by the State Government.\n\nBut for the second proviso, even if a law authorising acquisition of land with'.n the ceiling limit diJ not provide for payment of compensation, it would be protected from invalidation under Article 3 lA.\n\nThat was not a result which the Parliament favoured.\n\nParliament was anxious to protect the interest of the small holder, the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law wh:t:h permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value.\n\nThe second proviso in fact restores the right of property with added vigour in case of small holdings of land.\n\nIt goes much further than Article 31, clause (2) and provides a larger protection, in that, clause (2) of Article 31. merely requi•res that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner 1H which it may be given-and this may be very much less than the market value-while the second proviso insists that at the least, full market value must be paid for the acquisition.\n\nThus, there can be no doubt that the second proviso confers a right-and this right is higher than the one under clause\n\n(2) of Article 31---on a person in respect of such portion of land under h:•s personal cultivation as is within the ceiling limit applicable to him and if the Act, by creating an artificial concept of a family unit anCI fixing ceiling on holding of agricultural land by such family unit, enables land within the ceiling lim:'t to be acquired without payment of full market value, it would be taking away or abridging Jhe right conferred by the second proviso.\n\nIn that event too, it would be protected by Article 31-B since it is included in the Ninth Schedule.\n\nBefore we part with this contention based on Articje 31-B, we must refer to one other argument advanced ori behalf of the appellants with a view to repelling the applicability of Article 31-B: The appellants leaned heavily on the Explanation to sect:'On 3 of the Constitution (Seventeenth Amendment), Act, 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause ( 1) of Article 3 lA is void and does not have the protection of Article 31-B, even if the law under which such acqu;•sition is made is included in the Ninth Schedule.\n\nWe do not think this contention is well founded and in fact not much argument is needed to negative it.\n\nThe Constitution (Seventeenth Amend.ment) Act, 1964 was enacted by the Parliament with a view to expanding the scope of Article 31 A by enlarging the meaning of the expressi'On\n\n(1) [1966] I S.C.R. 367 at 373.\n\nD. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 807\n\n'estate' and while doing so, the Parliament added the second proviso to clause ( 1) of Article 3 lA.\n\nThe Ninth Schedule was also amended by including certain State enactments relating to agrarian reform in order to remove any uncertainty or doubt that may_ arise in regard to their validity.\n\nOne of the State enactments included in the Ninth Schedule by this amendment was the Rajasthari Tenancy Act, 1955 which was added as Entry 55.\n\nSection 3 which amended th~ Ninth Schedule carried the following Explanation :\n\n\"Explanation.-Any acquisition made under the Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955), in contravention of the second proviso to clause ( 1 ) of article 31A shall, _to the extent of the contraventi•on, be void.\"\n\nThis Explanation, contended the appellants, explained the scope and effect of the inclusion of an enactment in the Ninth Schedule vis-a-vis\n\ncontravention of t_he second proviso to clause ( l) of Article 3 lA and indicated the parliamentary intent that such inclusion is not intended to save the enactment from the invalidating consequence of the contravention.\n\nIt was urged that, by taking the illustration of the Rajaf; than Tenancy Act, 1955, the Explanation sought to explain and clarify that Article 31-B is not i•ntended to be construed as validating\n\ncontravention of the second proviso to clause ( l) of Article 3 lA.\n\nThis contention, which seeks to treat the Explanation as illustrative in character, is clearly fallacious. It is true that the orthodox function of an explanation is to explai•n the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it.\n\nBut ultimately it is the intention of the legislature which s paramount and mere use of a label. cannot control or deflect such; intention.\n\nIt must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur.\n\nTherefore, even though the provision in question h•as been called an Explanation, we must construe it according to its plain language and not on any a priori considerations.\n\nThe Explanation does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of Article 3 lA, it shall, to the extent of the contravention, be void.\n\nObviously, this Explanation was rendered necessary, because otherwise, acquisition under the Ra!jasthan Tenancy Act, 1955, even if in contravent:•; m of the second proviso to clause\n\n(l) of Article 31A, would have been valid under Article 31-B and that result the Parliament did not wish to produce. It was manifestly not the intention of the Parliament that acquis:•tion made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause (1) of Article 31A and that Article 31-B should not protect it from invalidation. If such had been the intention of the Parliament, it would have been expressed in . clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule, i•n contravention of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void.\n\nParliament would not have resorted to the device of p; tcking out one legislation fro!Jl the enach ments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention . of the second proviso to clause ( 1) of Article 3 lA shall be void. The Explanation, i'n our view, far from supporting the construction contended for on behalf of the appellants, militates against it.\n\nWe may also in the passing refer to the view taken by the Allahabad High Court in regard to the true meaning and effect of Article 31-B in relation to the second proviso to clause (l) of Article_\n\n31A.\n\nThe Allahabad High Court took the view i•n a decision given on 14th November, 1975 which is the subject-matter of Civil Appeal No. 1307 of 1976 in this Court that the second proviso to clause (1) of Article 31A places restriction only on executive action and not on legislative action and since Artitcle 31-B validates merely enactments specified in the Ninth Schedule' and not the executive action taken under those enactments, the plaing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acquisition under the Act should conform to the restriction set out in the second proviso to clause ( 1) of Article 3 lA.\n\nThis view taken by the Allahabad High Court is a little difficult to understand.\n\nThe protection afforded by the second proviso to clause (I) of Article 3 lA is undoubtedly against acqui'Sition by the State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of thi's proviso. If the law authorising acquisition does not conform with this requirement, it would be void and the acquisition made under it would be unlawful, but for Article\n\n31-B.\n\nIt is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition made under it can be void as offending the second proviso to clause ( 1) of Article 3 lA.\n\nThe view taken by the Allahabad High Court is plainly erroneous and must be rejected.\n\nWe are, therefore, of the viw that even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (I) of Article 3 lA, it is protected by Article 31-B by reason of i'ls inclusion in the Ninth Schedule.\n\nWe may point out that the same view has been taken by this Court in a decision given in regard to the constitutional validity of the Gujarat Agricultural Land Ceiling Act (27 of 1961) i•n Hasmukhlal Dayabhai v. State of Gujarat(').\n\nThis view taken by us in regard to the applicability of Article 31-B renders it unnecessary to consider whether in fact the Act is violative of the second proviso to clause (1) of Article 31A.\n\nBut\n\n(I) (1977) 1 S.C.R. 103.\n\nD. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 809\n\nsince full and detailed arguments were advanced before us on this question, we do not think it would be right if we refrain from expressi•ng our opinion upon it.\n\nWe fail to see how any violation of the second proviso to clause (1) of Article 3 lA is at all involved in so far as the Act creates an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit.\n\nThe inhibition ,;•mposed by the second proviso to clause ( 1) of Article 3 lA is against acquisition by the .State of any portion of land held by. a person under his personal cultivation which is within the ceiling l;•mit applicable to him, unless the law relating to such acquisition provides for payment of full prnrket value as compensation.\n\nThere are two basic condit; x:ms which must exist before this inhibition is attracted.\n\nOne is that land must be held by a person under his personal cultivation and the other is that there must be a ceiling limit applicable to such person.\n\nWhere these two conditions are satisfied, the State is prohibited from acquiring any portion of the land within the ceiling limit unless the law authorising such acquisition provides for payment of compensation at a rate not less than the market value.\n\nNow in the present case, the Act ha$ created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of appplyi•ng the limitation of< ceiling areas.\n\nIt could not be disputed by the appellants that the State Legislature had legislative competence to do so.\n\nThe only argument advanced on behalf of the appellants was that this device adopted by the State Legislature of clubbing together the land held by each member of the family unit and supplying the limitation of ceiling area to the aggregation of such land, would in many cases have the _effect of taking away without payment of full market value as compensation the land held by the wife or minor son minor unmarried daughter,_even though it is within the ceiling area applicable to the wife or minor son or minor was married daughter and hence the Act, in so far as it adopted this device, falls foul of the second proviso to clause ( 1) of Article 3 lA. Bu.t this argument ignores the scheme determination of ceiling area adopted in the Act.\n\nThere are, as already pointed out by us, two units recognised! by the Act for the purpose of fixing ceiling on holding of agricultural land.\n\nOne ii> 'pe_rson' and the other is 'family unit'.\n\nWhere there is a family unit as defined in the Explanation to clauses ( 1) to section 4, it has to be taken as a unit for the purpose of determining whether land is held in excess of the cei'Ing area and for this purpose all land held by each member of the family unit, whether jointly or separately, is required to be aggregated\n\nand it is deemed to be held by the family unit.\n\nThere, an individual . G member of the family unit is not regarded as a unit for the purposes of applying the limitation of ceiling area.\n\nThe ceiling limit in such a case is applicable only to the family unit and not to an individual memb1::r of the famly unit. It would not, therefore, be possible to say in the case of an individual member of the family unit that, when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit appli+cable to the family unit, the acquisition is of any land \"within the ceiling limi'I:\n\n810 Sfjl'Ri:oME COURT. REJ'>OkTS [1977] 2 s.C.R.\n\napplicable to him\" and hence in such a case there would be no question of any violation of the provision enacted ;•a the second proviso to clause ( 1) of Articles 31 A in so far as the land held by him is concerned. It may be that by reason of the creation of an artificial concept of a family unit and the clubbing together of the land held by each member of the family unit, one or more of the members of the family unit may lose the land held by them, but that cannot be helped because, hav;•ng regard to the social and economic realities of our rural life and with a view to nullifying transfers affected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been tak.(:n by the State Legislature as a unit for the applicab;'1ity of the limitation of ceiling area.\n\nIt is possible that by reason of this provision some genuine holders of land .may suffer, some women and minors may lose the land legitimately belonging to them, but that is inevitable when major schemes of agrarian reform are adopted for wiping out socio-economc injustice.\n\nIt must be remembered that the legislature can only deal with the generality of cases and it cannot possibly make provision for every kind of exceptional situation.\n\nOtherwise the law would be as loaded with quafa'ications and exceptions that it will cases to be intelligible and become of fertile source of mischief.\n\nMoreover, it is entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system arid the Court cannot assume the role of an economic adviser or censor competent to pronounce upon the wisdom of such policy.\n\nThat would be a matter outs; i(le the orbit of judicial review, being a blend of policy, politics and economics ordinarily beyond the expertise and proper function of the Court.\n\nWe must accordingly hold that the Act does not conflict with the second proviso to clause ( 1) of Article 3 lA and cannot be held to be bad on that account.\n\nThe result is that the appeals fail and are dismissed with costs.\n\nThere is to be only one set of costs. There is also a batch of special leave petifams before us and since they raise only one. question, namely that relating to the constitutional validity of the Act, they too must be rejected.\n\nC.A. 1307 of 1976.\n\nIlHAGWATi, J. This appeal by the State of Uttar Pradesh is directed against a judgment delivered by a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No. 9257 of 197$.\n\nThese four questions arise out of challenge to the constitutional validity of certain provisions of U.P.\n\nAct No. 1 of 1971 as amended by U.P. Act No. 18 of 1973 and U.P.\n\nAct No. 2 of 1975 (here:•nafter referred to as the amended U.P.\n\nImposition of Ceiling on Land Holdings Act) and they are in the following terms :\n\n\"l. Whether the acquisition of land under personal cultivation as surplus after ignoring sale deed under section 5 ( 6) of the U.P. Imposition of Ceiling on Land Hold:•,1gs Act is violative of second Proviso to Article 31-A ( 1) of the Constitution ?\n\n' !\",\n\n' f\n\n. '\n\n. D. G. MAHAJAN v. MAHARASHTRA (8hagwati, J.) 811\n\n2. Whether ignoring transfer made after 24th January, 1971, other than those excepted under Proviso to section 5 ( 6) of the both in relation to the determination of ceiling and surplus area, would amount to acquiring any portion of land under personal cultivation withi•n the ceiling limit applicable to a person under the ceiling law for the time being in force ?\n\n3. Whether, in spite of the protection afforded by Arti-1\n\ncle 31-B of the Constitution by virtue of inclusion of U.P. Act 1 of 1971 and the two amending Acts, namely, U.P. Act No. 18 of 1973 and, U.P. Act No. 2 of 1975, in the IX SCHEDULE to the Constitution, compfomce would still be necessary of the provisions of second proviso to Article 31-A(l) of the Constitution?\n\n4. Whether, in spite of protection_ having been given under Article 31-C of the Constitution to U.P. Act No. 18 of 1973 and U.P. No. 2 of 1975 by virtue of a declaration made in section 2 of each of . these Acts that these Acts are for giving_ effect to the policy of thei State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution, is it still necessary to comply with the provisions of the second proviso to Article 31-A(l) of the Constitution? -\n\nThe first two questions were answered by the High Court against the State by holding that section 5, sub-sectixm (6) of the amended U.P. Imposition of Ceiling of Land Holdings Act is violative of the second proviso to clause (1) of Article 31A of the Constitution, inasmuch as it provides for ignoring all transfers of land made after 24th January, 1971 save those excepted under the proviso_ to that sub-sectjon and thereby authorises acquisition of land held by a person under personal cultivation within the ceiling limit applicable to him.\n\nThe High Court also answered the third question against the State on the view that Art. 31-B does not dispense with the requirement that an acquisition made by the State en if it be under an enactment specified in the Ninth Schedule, should conform with the second proviso to clause ( 1 ) of Article 31 A and if the acquisition is violative of that provso, it would be void, notwithstanding that the enactment under which it is made is included in the Ninth Schedule.\n\nThe fourth question was also answered in the same way by holding that the protection given under Article 31 C of the Consti tution does not extend to violatitm of the second proviso to clause\n\n(1) of Article 3 lA.\n\nThe a!.Jswer given by the High Court to the fourth question is not challenged in the present appeal but the correctness of the answers given to the first three questions is seri9usly assailed before us by the State.\n\nWe will first deal with the third qm$tion since it is obvious that if the answer to that question is in favour of the State and it is\n\n•-206SCI/77\n\n812 &UPllBMB COURT JlEPOllTS\n\n\nheld that Act. 31-B protects an enactment included in the Ninth Schedule even from attack on the ground of violation of the second proviso to clause (1) of Art. 31A, it would become unnecessary to consider the first two questit>ns which raise the issue whether section 5, subsection (6) of the amended U.P. Imposition of Ceiling on Land Holdings Act is violative of that proviso, for even if it is, it would be protected by Art. 31-B in view of the fact that U.P.\n\nAd No. 1 of 1971 as also the two subsequent amending Acts, namely, U.P. Act No. 18 of 1973 and U.P. Act No. 2 of ins, are filcluded in the Ninth Schedule to the Constitution. Now, so far as the third question is concerned, we have already held, in a judgment delivered today in Civil Appeals 1132-1164 of 1976 arising under the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 , that Art. 31-B affords complete immunity to an enactment included in the Ninth Schedule against violation of the second proviso to clause (1) of Art. 31A and such an enactment is protected from invalidation on that ground.\n\nHaving regard _to this decisron, the answer to the third question must be given in favour of the State and it must be held that section 5, sub-section (6) of the amended\n\nU.P. Imposition of Cei'ling on Land Holdings Act, even if it contravenes the second proviso to cluase ( 1 ) of Article 31 A--a matter on which we do not wish to express any opinion since it is unnecessary to do so--in validated under Article 31-B.\n\nWe accordingly allow the appeal, set aside the order of the High Court in so far as it answers tho first three questrons against the State and hold that section 5, sub-section (6) of the U.P. Imposition of Ceiling on Land Holdings Act is valid and its constitutionality cannot be assailed by reason of the immunity enacted in Artit:le\n\n31-B.\n\nThe respondent will pay the costs of the appeal to the State.\n\nC.As. 1040 of 1975 etc.\n\nBHAGWATI, J.\n\nThese appeals by the State of Punjab are directed against a judgment of the: High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972 unconstitutional on the ground that they violate the second proviso to clause ( 1) of Article 3 lA of the Constitution.\n\nThe constitutional validity of the whole Act was challenged in the writ petitions giving rise to these two appeals, but the High Court negatived the challenge and upheld the constitutional validity of tho Act save in regard to those provisrons which create an artificial concept of a family and provide for clubbing together of land held .by each member of the family for the purpose of applying the limitation of permissible area.\n\nWe will briefly refer to these provisions which have been struck down by the High Court as constitutionally invalid. Section 3 is the definition section and clause (10) of that section define 'person' to include inter alia a family.\n\nThe expression 'family' is defined in clause ( 4) of section 3 by saying that 'family' in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her minor children, other than a married minor\n\ndauhter. It is obviously an artificial definition of family becauc\n\nfady, as known in ordinary parlance, would i'nclude not only minor chddren but also major sons and unmarried daughters, whrcas\n\n~···\n\nD. G. MAHA.TAN v. MAHARASHTRA (Bhagwati, J.) 813\n\n'Family' as defined here excludes major sons and unmarried daughters. Section 4, sub-section ( 1) provides that subject to the provisions of section 5, no person shall own or hold land as land•\n\nowner or tenant or partly as landowner and partly as tenant in excess of the permissible area and sub-secti'on (2) of that section lays down what shall be the permissible area in respect of different classes ot land.\n\nThere is proviso (ii) to sub-sectio~ (2) of section 4 which says that where the number of members of a family exceeds five, the permissible area shall be increased by one-fifth of the permissible areai for each member i'D. excess of five, subject to the condition that additional land shall be allowed for not more than three such members.\n\nSub-section 4 of Sec. 4 J:ias two clauss which reads as follows :\n\n\" (a) Where a person is a member of a registered cooperative farming society, his share in the land held by such society together with his other land, if any, or if such person is a member of a family, together with the land held by every member of the famiiy shall be taken into account for determining the permissible area;\n\n. (b) where a person is a membe_r of a family, the land held by such person together with the land held by every other member of the family, whether individually .or jointly, shall be taken into account for determining the permissible area.\"\n\nIt will thus be seen that under the provisions of the Act the land E held by each member of a family as defined in section 3, clause ( 4), whether individually or jointly, is required to be pooled together and' taken into account for determining the appFcabiiity of the permissible area.\n\nThe argument of the respondents, which found favour wi'th the High Court, was that these provisions are violative of the second proviso to clause ( 1) of Article 3 lA inasmuch as they permit <icquisition of land held by a member of a family under his personal F cultivation, though it mi•ght be within the permissible area for an ipdividual, without payment of full market value as compensatitm and hence they are constitutionally invalid.\n\nThis view taken by the High Court is assailed in the present appeals before thls Court.\n\nNow, it may be pointed out straightaway that when the High Court delivered its judgment on 14th February, 1974 the Punjab Land Reforms Act, 1972 was not included in the Ninth Schedule and1 hence it was not possible for the State to invoke the protection of Article 31-B.\n\nBut subsequently the Act has been i'ncluded in the Ninth Schedule as Entry 78 by the Constitution (Thirty-fourth Amendment) Act, 1974 and hence it is now entitled to the immunity conferred by Article 31-B. We had occasion to consider a similar question arising under the Maharashtrai Agritultural Lands (Ceilin3\n\nof Holdings) Act, 1961 where also an artificial concept of a family unit is created and lands held by each member of the family unit are aggregated together for the purpose . of applying the limitation of\n\nceiling area.\n\nThe relevant provisi'Ons of the Maharashtra Agriculural Lands (Ceiling of Holdings) Act, 1961 are in fact almost identical with the impugned provisions of the Punjab Land Reforms Act, 1972 While dealing with the constitutional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 in Civil Appeals Nos. 1132-1164 of 1976, we have pointed out in a judgment delivered today that these provisions introduci'ng the concept of a family unit and clubbing together lands held by each member of the family unit and applying the limitation of ceiling area in reference to the aggregation of such lands are not violatve of the second proviso to clause (1) of Article 31A and even if they were, they are protected by Article 31-B.\n\nThe reasoning which has prevailed with us for sustaining the validity of the provisions of the Maharashtra Agricultural Lands (Ceili'ng of Holdings) Act, 1961 must apply equally in the present cases arising under the Punjab\n\nLand Reforms Act, 1972 and we must hold that the impugned provisions of the Punjab Land Reforms Act, 1972 are not in conflict with the second proviso to clause (1) of Article 31A and in any event, they are protected from invalidation under Article 31-B.\n\nV./e may poi1nt out that the same view has been taken by this Court in regard to the constitutional validity of the relevant provisions of the Gufarat Agricultural Land, Ceiling Act (27 of 1961) in Hansmukhlal v. State of Gujarat.(') The relevant provisions of the Punjab Land Reforms Act, 1972 are almost the same as those of the Gujarat Agricultural Land Ceiling Act (27 of 1961) which were upheld as constitufamally valid in Hansmukhlal's case (supra).\n\nWe accordingly negative the challenge to the constitutional validity of the Punjab Land Reforms- Act, 1972 and hold that it does not suffer from any of the constitutional infirmities alleged in the writ petitions.\n\nThe appeals are accordingly allowed with costs in favour of the appellant.\n\nThere will be only one set of costs.\n\nKRISHNA IYER, J.-Legal challenges to the constitutionality ot agrarian transformation through legislation die hard in our divided society, as is evidenced by this avalanche of appeals, by special leave, from the High Courts of Maharashtra, Punjab and Allahabad. The naive expectation that new incarnations in court of dead confrontations between land legislation and the Constitution may be finally laid to rest by a larger-than-legal discussion has pressured me into writing a separate opinion where concurrence with my learned brefliren should have spared this seemingly otiose exercise.\n\nAlthough the majuscule argumentation, which has marked the formidable forensics of this litigation at the High Court level, has ranged over large issues, Shri Tarkunde, who led the main arguments for one side, has discriminatingly dwindled down his submissions before us to two minuscule issues which, nevertheless, arm of lethal H moment, if accepted.\n\nThe recurrence of attacks on the vires of land reform laws, even after being impregnably barricaded by the Ninth\n\n(1) [1977] l S.C.R. 103\n\nJ,;\n\n--.\n\nD. G. MAHA.TAN v. MAHARASHTRA (Krish11a Iyer, !.)\n\nchcdul~, constrains me to set out at some length the broad perspective .which courts must possess in such confrontation situations. Our\n\nConstitution is tryst with destiny, preambled with Iuscent solemnity in the words 'Justice-social, economic and political'.\n\nThe three great branches of Government, as creatures of the Constitution must reember this promie in their functional role and forget it at their per!!, for. to d? so will b~ a btryal o~ thOse high values and goals :which this nation set for itself m its objectives Resolution and whose elaborate summation is in Part IV of the paramount parchment. The history of our country's struggle for independence was the story of a battle between the forces of socio-economic exploit<ition and the . masses of deprived people of varying degrees and the Constitution sets the new sights of the nation.\n\nTo miss the burning economics and imperative politics of the Fundamental Law and to focus fatuously. on legal logomachy and pettifogging casuistry is to play truant with its messiahnism and to defeat the sweep of its humanism.\n\nOnce we grnsp the dharma of the Constitution, the new orientation for the karma of adjudication becomes clear.\n\nOur founding fathers, aware of our social realities and the inner workings of history and human relations, forged our fighting faith, integrating justice in its social, economic and political aspects.\n\nWhile contemplating the meaning of the Articles of the Organic law, the Supreme Court shall not dis- -0wn Social Justice.\n\nWe must. realise the vital role in Indian economic independence that the. land quesJion plays before approaching the constitutional issues urged before us.\n\nThe caste system and religious bigotry seek sanctuary in the land system.\n\nSocial status syndrom~, resisting the egalitarian recipe of the. Constitution, is the result of the hierarchical agrarian organisation.\n\nThe harijan serfdom or dalit proletarianism can never be dissolved without a radical redistrfbution of land ownership.\n\nDevelopment strategies, income diffusion programmes and employment opportunities, why, even the full realisation of the social and economic potential of the 'green revolution' demnd agrarian reform.\n\nMichael Cepede, Professor and Independent Chairman of the FAO Council, after studying the link between the green revolution and land reforms has concluded : ·\n\n\" ... .land reform, far. from being incompatible with the Green Revolution, i's essential to its successful continuzition.\n\nIn any case, unless the new techniques are quickly made available to peasant farmers, the social situation will before long become explosive.\n\nIf land workers are thwarted in their expectation of jobs under te Green Rev_qlution, they will have no alternative but to migrate to a hopeless existence in the suburban shanty towns.\n\nAs an Indian friend once said to me, unle'ss the peasant is allowed to participate fairly soon in the Green Revolution, it will quickly change colour.\n\nIf it is to remain green,\n\nworkers on the I_and must no longer be exploited as they are now; there must be a. structural reform, which means first and foremost land reform_.\"\n\n_ (The Green Revolution and Employment-by Michael CEPEDE -International Labour Review, Vol. 105, 1972-P. 1) The intimate bond between poverty and hierarchy in agrarian societies, the impact of the social framework of agriculture on the castcsystem, the inhibition of feudal tenures on the productive energies of the peasantry, are subjects which have been studied by cultural anthropologists, sociologists and economists and, in consequence, the Constitution has included agrarian reform as a crucial component of the New Order.\n\nIn a rc<eent publication by the Institute of Economic Growth, the inter-connection between land .reform, class structure and the powerelite has been high-lighted :\n\n\"The significance of land reform is obvious if one keeps - in view the predominantly agrarian character of most Asian Countries.\n\nThe majority of populations in the Asian region live in villages where land constitutes not only the main source of livelihood but also the basis of social stratifica-- tion power 'structure, family organisation and belief systems.\n\nLand reform which is intended to promote changes in inland relations is bound to exercise a far-reaching influence not only on the pattern of agricultural transformation but of rural transformation as a whole.\n\nIt should b~ borne in mind that changes in land relations are not only propellers of socio-economic change, they are also reciprocally influenced b}'.. changes in the economic, technological, social, political and ideological spheres. Analysis of the impact of land reforms, therefore, has to be attempted with an awareness of development in the total social situation.\n\nFurther, countries in Asia exihibit many points of similarity as welll as of divergence in respct of land reform. programmes and their impact on socio:e_cqno-_ mic changes.\"_ · - (Studies in Asian Social Development-McGraw-Hill Publishing Co., Ltd., p. 5).\n\nsniall wonder thatthe -framers of i:he Constitution .were stirred by the proposition that freedom 'in village India becomes 'free' only -when the agrarian community comes into its own and this necessitates radically re-Qrawing the rural real estate map.\n\nA sensitied awareness of this background is essential while assessing the legal merit of . the submissions made by Shri Tarkunde which has fatal potential vis-a-vis the three impugned legislations in question.\n\nWe are directly concerned, in con'sidering the crowd of appeals from the three :Wgh Courts, w.ith Arts. 31A(l) * and 31-B which\n\n•In its present shape, it was recast by the Constitution (Fourth) Amendment Act.\n\n...\n\n.,.\n\nD. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 817\n\ncame into the Constitution shortly after and as the very First Amendment to the Constitution.\n\nThe relevance of land reforms and their forensic inviolability was then stressed in Parliament by the Prime Minister who moved the Bill in this behaH.\n\nHe explained the quintei.Sential aspect of the problem. I quote it here because the voice cif Parliament belightS, when played back, the words of the Articles to better appreciate their import and amplitude :\n\n\"Shri Jawaharlal Nehru : . . When I think of this Article. (Art. 31) the whole gamut of pictures comes up before my mind, because this article deals with the abolition of the . zamindari system, with land laws and agrarian reform. . ...\n\nNow, ... a survey of the world. today, a survey. 9f Asia. <.: today will lead any intelligent person to see that the basic and the primary problem is the land problem today in ia, as iu India.\n\nAnd every day of delay adds to the difficulties and dangers apart fro~· being an iii.justice in itself. .....\n\nI am not going irito the justice or injustice of but am looking at it purely from the point of view of stability. Of\n\ncourse, if you go into. the justice or injustice, you have to take ll longer view, not the justice o'f today, but the justice of yesterday also ..\n\nWe do. no1;. want anyone to suffer.\n\nBut, ineviyibly in big social changes some people have to suffer.\n\nWe have to think in terms of large schemes of social engineering, not petty reforms but of big schemes like that. .... Even in the last three years or so some very important measures passed by State Assemblies and the rest have been held up. No doubt; u I said, the interprett.ion of the Qiurt~ must be accepted as right but you; land the country has to wai_t witb. social and economic conditions-social and economic upheavals.:.__and we are responsible for them.\n\nHow are we\n\n.· to meet them? How are we to meet this challnge of the times ?\n\nTherefore,· we have to think in terms of these big changes, land changes and the like and. therefore we thought it best to propose ad9itional articles 31 A and. 31 B and in addition to that there is a Schedule attached of a number of Acts passed by State Legislatures, some of which have been challenged or might be challenged and we thqught it best to save them from long delays and these difficulties, §O that\n\nJ:his process of change which has been initiated by the States should gO\" ahead.\"\n\n(Constitution First Amendment Bill Debates, d/16-5-51) .\n\n. We now know the high seriousness. and wide sweep of the constitutional provisions falling for construction.\n\nThe purpose of Art. 31B is. conferment of total immunity from challenge on the score of. violation of Part III. . The words used are as comprehensive as. Engli<; h\n\nA language permits.\n\nAnd there is no justification to narrow down the pervasive operation of the protection, once we agree that the legislation relates to agrarian reforms.\n\n.. 1!:\n\nI have, right at thP. outset, hammered home the strategic significance of land reforms in the planned development of our resources, the restoration of the dignity and equality of the individual and the consolidation of our economic freedom.\n\nNo land reforms, no social justice.\n\nAnd so, the framers of the Constitution, finding the fearful\n\n1rospect of agrarian re-structuring being threatened by fundamental nghts' archery, decided to armour such reform programmes with the sheath of invulnerability viz., the Ninth Schedule plus Art.\n\n31B.\n\nOnce included in this Schedule, no land reform law 'shall be arrowed down by use of Part III.\n\nA complete protection was the object of the 1st Amendment, and to blunt the edge of this purpose by interpretative tinkering with legalistic skills is to cave in or assist unwittingly the slowing down of the process which is the key to social transformation.\n\nThe listening posts of the constitutional court are located, not in little grammar nor in lexicography nor even in pedantic reading of Provisos and Expfanations based on vintage rules but in the profound forces which have led to the provision and in the comprehensive concern expressed i°' the wide language used.\n\nWhile any argument in Court has to be decided on a study of the meaning of the words of the statute vis-a-vis the constitutional provisions, the very great stakes of the country in agrarian legislation, which we have been at pains to emphasize, enjoin upon the Judges the need to bestow the closest circumspection in evaluating invalidatory contentions. Every presumption in favour of validity, semantics permitting, every interpretation upholding vires, possibility existing, must meet with the approval of the Court.\n\nOf course, if any of the provisions of the Act, tested by the relevant constitutional clause, admits of no reconcillation, the Act must fail though, since the Court has its functional limitation in rescuing a legislature out of its linguistic folly.\n\nI may here briefly set out the circumstances which account for these appeals.\n\nMaybe, I may also state pithily the nature of the attempted constitutional invasion on the legislative provisions.\n\nThe appellants have arrived in three batches.\n\nThe first set of appeals is by landlords from Maharashtra whose challenge of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (Act No. 27 of\n\n1961) as amended, (especially ss. 4 and 5) proved ineffectual in the High Court and they. seek better fortune by urging some of the same argument~ more sharply in this Court.\n\nThe next bunch of appeals is by the State of Punjab which complains about the High Court's conclusion of unconstitutionality of s. 5 ( 1) of the Punjab Land Reforms Act, 1972.\n\nThe third group is by the State of U.P. some of the provisions of whose land reform law have been declared ultra vires by the High Court, and the aggrieved State contests that ratiocination as horrendously wrong.\n\nFor easy reference hereafter, I will abbreviate the three statutes as the Maharashtra Act, the Punjab Act and the U.P. Act.\n\nThe provisions under attack are substantially\n\n, . .\n\nD; G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 819\n\n; similar in nature, and the argument's before us likewise have been more or less identical.\n\nOne common feature of all the three enactments is that they are all included in the Ninth Schedule to the Constitution, although it must be stated that the Punjab Act, at the time the High Court decided the case, had not been so included.\n\nSince the three Acts enjoy the immunity ensured by Art. 31-B, the examination by this C9urt of the questions mooted has to be on that footirlg.\n\nThat Chinese Wall of protection still leaves vulnerable chinks, according to Shri Tarkunde, and his major offensive. is based on the second proviso to Art. 31-A(l). He derives from the proviso the.reto a legislative incompetency if some mandated conditions implied therein are not fulfilled and the failure to coinply with this requirement by all three Act's spells their invalidity.\n\nThe broad-spectrum attack in the High Courts, based on many grounds, having been given up, we may focus first on the relevant portions. of Arts. 31-A and 31-B and the Ninth schedule, before coming to the specific sections of the Acts which allegedly violate, with fatal impact, the constitutional prescriptions or prohibitions. Shri Tarkunde him'self followed this line in his argument.\n\nSpeaking generally, the gravamen of the charge, in all the three instances, is in creating an ersatz 'person' or artificial family for the purposes of the Acts, contrary to the implicit requirement. of the 2nd proviso to Art. 31A( 1), and in presenting a curious ceiling limit for such a 'family' regarding lands in personal cultivation. We will consider this principal argument closely.\n\nArticle 31-B reads thus :\n\n\"31-B. Validation of certain Acts and Regulations :-\n\nWithout prejudice tO the generality of the provisions contained in Article 3 lA., none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with or takes away or abridges aiiy of the rights conferred by, any provisions of this Part, and @twithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.\"\n\nIts obvious object is to save land reform laws from being 'shot down by the constitutional missiles of Part III. . Conceding this, counsel argues that what is repulsed is attack based on rights under Part III but other infirmities are not cured by Art. 31B.\n\nOne such infirmity, legislative incompetency, is the foundation of his argument.\n\nBefore critically appraising a contention, one must sympathise with the submission.\n\nSo we may read Art. 31 A(l) to the extent relevanl ..\n\n\"3IA. Saving of laws providing for acquisition of estates, etc:-\n\n( 1) Notwithstanding anything contained in article 13, no law providing for- -\n\n(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification _ of any such rights, or . . ·(b) te taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper manage-· ment of the property, or · ·\n\n(c) the amalgamation of two. or_ more corporations either in the public interest or in order to secure the proper management of any of the corporation, or\n\n(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of _corporations, or of any voting rights of shareholders thereof, or\n\n(e) the extinguis_hment or modifications of any rightli accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease . or licence,\n\nshall be deemed to be voi°d on the ground that it is inconsistent with, or taken away or abrids any of the rights conferred by Article 14, Article 19 or Article 31; ·\n\nProvided that where such law is a law made by the Legislature o~ a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent :\n\nProvided furt!:ter that where any law makes any. provision for the acquisition by the State of any estate and where any land comprised therein is he!d by a person under his personal cultivation, it shall not be lawful for the J)tate to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structur~, provides for payment of compensati_on at a rate which shall not be less than the market valye thereof.\"\n\nAll the Acts relate to the acquisition by the State of estates, in the sense that surplus lands above the ceiling limit are taken away\n\n~:~ . .. • ...\n\n~ ..\n\n~ > ~\n\nD •. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 821\n\nby the State.\n\nWhile this is permissible, notwithstanding any violat- A ion of Arts. 14, 19 and 31, the second proviso to Art. 31A(l) by a negative prescription, imposes legislative incompetence in certain circumstances.\n\nShri Tarkunde reads the proviso in a manner not so easy to follow. Even so, to understand the argument one has to follow counsel's chain of reasoning.\n\nFirstly, he persuades us that where any land is held by a person in hiS actual cultivation, the State cannot acquire any portion of such land as is within the B ceiling limit applicable to him under any law unless the law relating to the acquisition of such land provides for payment of compensation at a rate not less than the market value thereof. He is right.\n\nIn none of. these Acts is compensation on that scale payable.\n\nThe next question is whether the acquisition of land is below Lhe ceiling limit.\n\nTo make good this part of his argument, he calls in aid c Art. 367.\n\nThat Article imports the application of the General Clauses Act, 1897, for the interpretation of the words used in the Constitution and so the expression 'person' used in Art.\n\n31A (Second Proviso) must bear the meaning assigned to it by s. 2(12) of the General Clauses Act. Counsel states that the Acts iiiquestion define 'family' and 'family unit' in a bizarre m.anner, by providing for ceiling limit for 'family unit' incongruously with the natural D concept of family but fabricated in the foundry of the statutes, the laws have violated the ceiling for the individuals comprising the family.\n\nBy reading ss. 4(1) and 5 of the Ma!lEl.rashtra Act and s .. 4(1) and s. 5 read with r. 5 ( 4) of the Punjab Act, counsel tried to make good his contention that there was a flagrant departure from the concept of 'person' as defined in s. 2 (12) of the General Clauses Act. By doing this, the legislature treated one person's separate E land as land of the family unit and deprived the wife and minor child of the right to hold lands within the ceiling limit.\n\nBy this recondite reasoning, Shri Tarkunde urged that. the legislature had transgressed the limits of their competency which rendered the legislations void, not because any .fundamental right in Part III had been flouted but because the limitation on legislative competency written into the second proviso to Art .. 31A had been breached. F\n\nCounsel fought s_hy of reading into the Znd proiso to Art. 31A(l) a fundamtental. right. conferred on persons. holding lands below the ceiling _limit. in, person, il cultivation. '.This legalist dexterity became necessary _ l:)ecause Art. 3 LS, on its plain and plenary terms, was a sovereign remedy agaipst all abridgement of or inconsistencies with fundamental. rights under ?art III.. The sweep of this prov!sion, the G param()riilt purpose it was designed . to serve and the. amplitude of its language versus the narrowness of the construction put, the desperate interpretative crevices created, frustrative of its main object, and the reliance on the structure of Art. 13 to under'stand the anatomy of Art. 31B-this was the gut issue on which most of the debate centred.\n\nEqually importantly, whether the prescription in he said 2n_d proviso was a guaranteed undamental r!gh.t cxpresse~ m cmpJ:atc H negative and as an exceptwn to an excteption or was it solely a hn11t11tion on legislative power without creating a corresponding right in ariy person-thi's too occupied the centre of the stage.\n\nThe Punjab and Haryana High Court, in the judgment under appeal, has ventured the view that the provision relating to 'family' and fixation of land ceiling for such units is not agrarian reform.\n\nThis extreme dictum discloses the easy possibility of judicial solecism when courts wear legal blinkers while adjudging questions of agronomics, national reconstruction arid sociological programmes in t)le setting of developing countries.\n\nProfessional innocence of current economics, anthropology and socilogy, in essentials, while rendering constitutional verdicts on developmental laws, is forensic guilt. ·\n\nJn State of Kerala & Anr. v. Silk Manufacturing (Wvg.) Co. Ltd. etc.(') the considerable amplitude of agrarian reform in developing countries has been explained. If India Jives in her villages, if a huge majority of its people live or starve on agriculture and under agrestic sub-culture, every thing that promotes rural regeneration and the welfare of the agricultural community is agrarian reform.\n\nThis being the conceptual sweep of the expression, all reasonable strategies for the limitation of holdings and maximization of surplus lands for distrib.ution to the landless and designing a hopeful rural future obviously fall within the expanding projects of agrarian reform.\n\nTo argue more is to labour the obvious and to interpret liberally is an obligation to the. Constitution.\n\nAssuming that the legislations in question are measures of agrarian reform-and they are--we have to dissect and discover the nature of the objection based on the 2nd proviso to Art. 31 ( 1) and decide whether the protective wings of Art. 3 lB are wide enough to take 111 tliee legislations and repel the imputed infirmity.\n\nArt. 3 lB categorically states that none ef the Acts specified in the Ninth Schedule nor any of the provisions thereof, shall be deemed to be void on any conceivable ground rooted in Part III.\n\nEven if such Act or provision is inconsistent with any provision of Part Ill it shall not be invalidated.\n\nEven if such Act or provision takes away or abridges any of the rights conferred by any provisions of Part III it shall continue in force.\n\nIn short, no matter what the grounds are, if they are traceable to Part III in whatever form, they fail in the presence of Art. 3 lB.\n\nNo master of English legal diction could have used, 'so tersely, such protean words which in their potent totality bang, bar and bolt the door against every possible invalidatory sally based on Part III.\n\nAnd Article 31A(l) being in Part III, Shri Tarkunde's '2nd proviso' bullet cannot bit the target.\n\nNor are we impressed with the cute argument that the phraseology of Art. 31B must be correlated to Art. 13 and read with a truncated connotation.\n\nLegal legerdemain is of no avail where larger constitutional interests are at stake.\n\nShri Tarkunde concedes that if we read the 2nd proviso to Art. 31 A(I) as conferring a fundamental righ~ on every person in personal cultivation of land below the ceiling limit. Art. 31B is an effective answer to his contention.\n\nAnd so he has striven to make the H point that what the said proviso does is not to confer a right but. to clamp down a limitation on legislative competence.\n\nThe proviso, ---------·-· ------ ------\n\n(!) [1974] I S.C.R.671.\n\nD. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, !.) 823\n\naccording to counsel, imposes an embargo on the legislature against\n\ne?cting for acquisition of lands . below the ceiling 'limit without prov1dmg for payment of compensat10n at a rate which shall not be less than the market value thereof.\n\nThe fallacy of this submission lies in its being !1 half-truth co?foundd for th~ . ~ole truh.\n\nEvery fundamental nght, from the view pomt of the md1v1dua1, gives a right and from the standpoint of the State, is a restraint.\n\nWhether the manner of expressin used is in poitive tems or natively, whether the stat1;1tory_ techruque of . a pr?v1so,. sa:-m~ clause, ex.ception or explanat10n, 1s used or a dtrect mterd1ct 1s imposed, the substantive content is what matters.\n\nSo studied, many of the Articles in Part III, worded in a variety of ways, arm the affected individual with a ., Y. ,/ right and, pro tanto, prohibit the legislature. and the executive from enacting or acting contra.\n\nEvery right of A is a limitation on B, • in a universe of law and order. -\n\nThe learned Attorney General expanded on the functional plurality of a proviso and on what is a fundamental right from the individual's angle being a limitation on power from the le._gislative angle. cases were cited, passages were blue-pencilled and text books were relied on.\n\nEven self-evident propositions wear perplexingly erudite looks when learned precedents and excerpts from classics play upon them. It is simple enough to say that there may b_i; singular situations where legislative incompetence may exist without a corresponding individual right but in the generality of cases it is oth\"'rwise.\n\nJurisprudential possibilities apart, in the concrete case before us there is a cfoarly enunciated fundamental right, garbed as an exception to an exception or as a proviso carved cut of a general saving provision.\n\nIt needs no subtlety to see that under the rubric 'Right to Property' a skein of rights and limitations on rights has been wound in Arts. 31 to 31C.\n\nTogether they are the measure of the fundamental right to property in its macro form and micro notes.\n\nSo understood, the scheme is plain. A large right to property protected by law against ,. deprivation, compulsory acquisition only on constitutional conditions, ..._ saving of agrarian and some other laws from these constitutional constraints, followed by creation, through a proviso, of an oasis ,,.... where acquisition can be made only by payment of compensation at or above market value-such is the patfern woven by the complex of clauses.\n\nA great right is created in favour of owners to get compensationat not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State.\n\nThis is a fundamental ri.ght and is a creature of the 2nd proviso to Art. 3 lA(l). An -independent provision may occasionally incarnate as a humble proviso.\n\nI am not, therefore, inclined to pursue Shri Tarkunde's trail in reading the rulings which set out the proper office of a proviso, although it is absolutely plain that in the context, setting and purpose of a provision, even a proviso may function as an independent clause.\n\nLikewise, the artificiality imputed to 'family unit' and 'family' in the two statutes and the anomalies and iniustices which may possibly flow from them also do not arise for consideration since we have\n\nE:.\n\nSUPREMJr. COURT REPORTS [1977] 2 s.c.R.\n\ntaken the scope of Art. 31B to be wider than contended for.\n\nMoreover, in any land reform measure, where the maximum surplus pool of land for social distribution is the aim, drastic interference with the existing rights and room for real individual grievances are inevitable.\n\nThe new order claims a high price from the old and pragmatic strategies to organise land reforms may involve definitional unorthodoxy if the target group is to be reached.\n\nSocio-economic legislation is social realism in action, not bookish perfection, as social scientists will attest.\n\nI hold that the Maharashtra, the Punjab and the U.P. Act8 are not unconstitutional, taking the constructive view that Art. 31-B, vis-a-vis agrarian reforms, is a larger testament of vision and values in action and a bridge between individual right and collective good.\n\nThe Nagpur Bench has spurred with counsel's many submissions most of which have been wisely abandoned here and has ultimately upheld the legislation.\n\nThe Punjab High Court has ventured to hold that the law is bad for reasons repeated before us and repelled by us unanimously. The Allahabad judgment has shown noetic naivete and novel legal logic in condemning the provisions to death on grounds which the counsel cared to espouse before us.\n\nThe reason for this lie9 in the womb of obvious surmise.\n\nWhile interpretative opportunities are still open for courts in the application of land legislation. the requiem of the unconstitutionality of agrarian reform laws has, by now. been sung. ·\n\nNevertheless, the crowing event of egaliiarian 1egi~1atiofi is '\"\" so much constitutional success as effective emacation.\n\nThe distance between the statute book and the landless tiller is tantalisingly long and for this implementation hiatus the executive, not the judicative, wing will hold itself socially accountable hereafter.\n\nMay be it will be spurred with responsible spread trasucending reform rhetoric.\n\nI agree that the Maharashtra appeals be dismissed, and the other two batches be allowed.\n\nS.R.\n\nMaharashtra appeals dismissed, U.P. & Punjab appeals\n\n allowed.", "total_entities": 439, "entities": [{"text": "DATTATRAYA GOVJND MAHAJAN & ORS. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "DATTATRAYA GOVIND MAHAJAN & ORS. ETC", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & ANR", "label": "RESPONDENT", "start_char": 42, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ANR", "offset_not_found": false}}, {"text": "January 27, 1977", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "January 27, 1977\n\n[A. N. RAY, C.J., M. H. BEG, P. N. BHAGWATI, V. R. KRISHNA IYER\n\nAND P. N. SH!NGHAL, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 90, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "A. N. RAY, C.J.", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 107, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "M. H. BEG", "offset_not_found": false}}, {"text": "P. 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KRISHNA IYER", "offset_not_found": false}}, {"text": "Ss. 2(11A), 2(22), 3", "label": "PROVISION", "start_char": 424, "end_char": 444, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 457, "end_char": 467, "source": "regex", "metadata": {"statute": null}}, {"text": "Ninth Schedule- Whether the Act", "label": "STATUTE", "start_char": 544, "end_char": 575, "source": "regex", "metadata": {}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 761, "end_char": 769, "source": "regex", "metadata": {"linked_statute_text": "Ninth Schedule- Whether the Act", "statute": "Ninth Schedule- Whether the Act"}}, {"text": "Art. 31H", "label": "PROVISION", "start_char": 874, "end_char": 882, "source": "regex", "metadata": {"linked_statute_text": "Ninth Schedule- Whether the Act", "statute": "Ninth Schedule- Whether the Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 904, "end_char": 925, "source": "regex", 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"Ninth Schedule", "label": "PROVISION", "start_char": 62532, "end_char": 62546, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 62751, "end_char": 62760, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 62911, "end_char": 62920, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article\n\n31", "label": "PROVISION", "start_char": 63342, "end_char": 63353, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 63533, "end_char": 63542, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 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"source": "regex", "metadata": {}}, {"text": "Article 3", "label": "PROVISION", "start_char": 64716, "end_char": 64725, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 64953, "end_char": 64962, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 66690, "end_char": 66699, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 4", "label": "PROVISION", "start_char": 67064, "end_char": 67073, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 31", "label": "PROVISION", "start_char": 68224, "end_char": 68235, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 70024, "end_char": 70033, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "IlHAGWATi", "label": "JUDGE", "start_char": 70400, "end_char": 70409, "source": "ner", "metadata": {"in_sentence": "IlHAGWATi, J. This appeal by the State of Uttar Pradesh is directed against a judgment delivered by a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No."}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 70433, "end_char": 70455, "source": "ner", "metadata": {"in_sentence": "IlHAGWATi, J. This appeal by the State of Uttar Pradesh is directed against a judgment delivered by a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 70524, "end_char": 70547, "source": "ner", "metadata": {"in_sentence": "IlHAGWATi, J. This appeal by the State of Uttar Pradesh is directed against a judgment delivered by a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No."}}, {"text": "Imposition of Ceiling on Land Holdings Act", "label": "STATUTE", "start_char": 70934, "end_char": 70976, "source": "regex", "metadata": {}}, {"text": "section 5", "label": "PROVISION", "start_char": 71122, "end_char": 71131, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 71228, "end_char": 71238, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "8hagwati", "label": "JUDGE", "start_char": 71318, "end_char": 71326, "source": "ner", "metadata": {"in_sentence": "D. 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Imposition of Ceiling of Land Holdings Act is violative of the second proviso to clause (1) of Article 31A of the Constitution, inasmuch as it provides for ignoring all transfers of land made after 24th January, 1971 save those excepted under the proviso_ to that sub-sectjon and thereby authorises acquisition of land held by a person under personal cultivation within the ceiling limit applicable to him."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 73201, "end_char": 73208, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling of Land Holdings Act", "statute": "Imposition of Ceiling of Land Holdings Act"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 73336, "end_char": 73350, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling of Land Holdings Act", "statute": "Imposition of Ceiling of Land Holdings Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 73410, "end_char": 73420, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling of Land Holdings Act", "statute": "Imposition of Ceiling of Land Holdings Act"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 73570, "end_char": 73584, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling of Land Holdings Act", "statute": "Imposition of Ceiling of Land Holdings Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 73684, "end_char": 73694, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling of Land Holdings Act", "statute": "Imposition of Ceiling of Land Holdings Act"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 73787, "end_char": 73796, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "held that Act", "label": "STATUTE", "start_char": 74198, "end_char": 74211, "source": "regex", "metadata": {}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 74256, "end_char": 74270, "source": "regex", "metadata": {"linked_statute_text": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act", "statute": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 74354, "end_char": 74362, "source": "regex", "metadata": {"linked_statute_text": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act", "statute": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act"}}, {"text": "section 5", "label": "PROVISION", "start_char": 74459, "end_char": 74468, "source": "regex", "metadata": {"linked_statute_text": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act", "statute": "UPllBMB COURT JlEPOllTS\n\n\nheld that Act"}}, {"text": "Imposition of Ceiling on Land Holdings Act", "label": "STATUTE", "start_char": 74505, "end_char": 74547, "source": "regex", "metadata": {}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 74622, "end_char": 74629, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 74802, "end_char": 74816, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 75061, "end_char": 75068, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 75129, "end_char": 75143, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 75201, "end_char": 75209, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "section 5", "label": "PROVISION", "start_char": 75408, "end_char": 75417, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceiling on Land Holdings Act", "statute": "Imposition of Ceiling on Land Holdings Act"}}, {"text": "Land Holdings Act", "label": "STATUTE", "start_char": 75482, "end_char": 75499, "source": "regex", "metadata": {}}, {"text": "Article 31", "label": "PROVISION", "start_char": 75562, "end_char": 75572, "source": "regex", "metadata": {"linked_statute_text": "Land Holdings Act", "statute": "Land Holdings Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 75685, "end_char": 75695, "source": "regex", "metadata": {"linked_statute_text": "Land Holdings Act", "statute": "Land Holdings Act"}}, {"text": "section 5", "label": "PROVISION", "start_char": 75853, "end_char": 75862, "source": "regex", "metadata": {"linked_statute_text": "Land Holdings Act", "statute": "Land Holdings Act"}}, {"text": "Imposition of Ceiling on Land Holdings Act", "label": "STATUTE", "start_char": 75892, "end_char": 75934, "source": "regex", "metadata": {}}, {"text": "State of Punjab", "label": "ORG", "start_char": 76166, "end_char": 76181, "source": "ner", "metadata": {"in_sentence": "BHAGWATI, J.\n\nThese appeals by the State of Punjab are directed against a judgment of the: High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972 unconstitutional on the ground that they violate the second proviso to clause ( 1) of Article 3 lA of the Constitution."}}, {"text": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972", "label": "STATUTE", "start_char": 76222, "end_char": 76320, "source": "regex", "metadata": {}}, {"text": "Article 3", "label": "PROVISION", "start_char": 76407, "end_char": 76416, "source": "regex", "metadata": {"linked_statute_text": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972", "statute": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 76992, "end_char": 77001, "source": "regex", "metadata": {"linked_statute_text": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972", "statute": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972"}}, {"text": "section 3", "label": "PROVISION", "start_char": 77162, "end_char": 77171, "source": "regex", "metadata": {"linked_statute_text": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972", "statute": "High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act, 1972"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 77675, "end_char": 77684, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 77746, "end_char": 77755, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 78062, "end_char": 78071, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 78363, "end_char": 78372, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 78376, "end_char": 78382, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 79111, "end_char": 79120, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 79439, "end_char": 79448, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "14th February, 1974", "label": "DATE", "start_char": 79906, "end_char": 79925, "source": "ner", "metadata": {"in_sentence": "Now, it may be pointed out straightaway that when the High Court delivered its judgment on 14th February, 1974 the Punjab Land Reforms Act, 1972 was not included in the Ninth Schedule and1 hence it was not possible for the State to invoke the protection of Article 31-B.\n\nBut subsequently the Act has been i'ncluded in the Ninth Schedule as Entry 78 by the Constitution (Thirty-fourth Amendment) Act, 1974 and hence it is now entitled to the immunity conferred by Article 31-B. We had occasion to consider a similar question arising under the Maharashtrai Agritultural Lands (Ceilin3\n\nof Holdings) Act, 1961 where also an artificial concept of a family unit is created and lands held by each member of the family unit are aggregated together for the purpose ."}}, {"text": "Punjab Land Reforms Act, 1972", "label": "STATUTE", "start_char": 79930, "end_char": 79959, "source": "regex", "metadata": {}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 79984, "end_char": 79998, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 80072, "end_char": 80082, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Ninth Schedule", "label": "PROVISION", "start_char": 80138, "end_char": 80152, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 80279, "end_char": 80289, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Punjab Land Reforms Act, 1972", "label": "STATUTE", "start_char": 80780, "end_char": 80809, "source": "regex", "metadata": {}}, {"text": "Article 31A", "label": "PROVISION", "start_char": 81295, "end_char": 81306, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 81352, "end_char": 81362, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Land Reforms Act, 1972", "label": "STATUTE", "start_char": 81592, "end_char": 81614, "source": "regex", "metadata": {}}, {"text": "Punjab Land Reforms Act, 1972", "label": "STATUTE", "start_char": 81668, "end_char": 81697, "source": "regex", "metadata": {}}, {"text": "Article 31A", "label": "PROVISION", "start_char": 81759, "end_char": 81770, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 81832, "end_char": 81842, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Land Reforms Act, 1972", "statute": "the Punjab Land Reforms Act, 1972"}}, {"text": "relevant provisions of the Punjab Land Reforms Act, 1972", "label": "STATUTE", "start_char": 82085, "end_char": 82141, "source": "regex", "metadata": {}}, {"text": "Hansmukhlal", "label": "OTHER_PERSON", "start_char": 82275, "end_char": 82286, "source": "ner", "metadata": {"in_sentence": "The relevant provisions of the Punjab Land Reforms Act, 1972 are almost the same as those of the Gujarat Agricultural Land Ceiling Act (27 of 1961) which were upheld as constitufamally valid in Hansmukhlal's case (supra)."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 82633, "end_char": 82645, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J.-Legal challenges to the constitutionality ot agrarian transformation through legislation die hard in our divided society, as is evidenced by this avalanche of appeals, by special leave, from the High Courts of Maharashtra, Punjab and Allahabad.", "canonical_name": ".Krishna Iyer"}}, {"text": "High Courts of Maharashtra, Punjab and Allahabad", "label": "COURT", "start_char": 82845, "end_char": 82893, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J.-Legal challenges to the constitutionality ot agrarian transformation through legislation die hard in our divided society, as is evidenced by this avalanche of appeals, by special leave, from the High Courts of Maharashtra, Punjab and Allahabad."}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 83383, "end_char": 83391, "source": "ner", "metadata": {"in_sentence": "Although the majuscule argumentation, which has marked the formidable forensics of this litigation at the High Court level, has ranged over large issues, Shri Tarkunde, who led the main arguments for one side, has discriminatingly dwindled down his submissions before us to two minuscule issues which, nevertheless, arm of lethal H moment, if accepted."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 85247, "end_char": 85260, "source": "ner", "metadata": {"in_sentence": "While contemplating the meaning of the Articles of the Organic law, the Supreme Court shall not dis- -0wn Social Justice."}}, {"text": "Michael Cepede", "label": "LAWYER", "start_char": 85987, "end_char": 86001, "source": "ner", "metadata": {"in_sentence": "Michael Cepede, Professor and Independent Chairman of the FAO Council, after studying the link between the green revolution and land reforms has concluded : ·\n\n\" ... .land reform, far.", "canonical_name": "Michael Cepede"}}, {"text": "FAO Council", "label": "ORG", "start_char": 86045, "end_char": 86056, "source": "ner", "metadata": {"in_sentence": "Michael Cepede, Professor and Independent Chairman of the FAO Council, after studying the link between the green revolution and land reforms has concluded : ·\n\n\" ... .land reform, far."}}, {"text": "Michael CEPEDE", "label": "LAWYER", "start_char": 86970, "end_char": 86984, "source": "ner", "metadata": {"in_sentence": "_ (The Green Revolution and Employment-by Michael CEPEDE -International Labour Review, Vol.", "canonical_name": "Michael Cepede"}}, {"text": "Institute of Economic Growth", "label": "ORG", "start_char": 87490, "end_char": 87518, "source": "ner", "metadata": {"in_sentence": "In a rc<eent publication by the Institute of Economic Growth, the inter-connection between land .reform, class structure and the powerelite has been high-lighted :\n\n\"The significance of land reform is obvious if one keeps - in view the predominantly agrarian character of most Asian Countries."}}, {"text": "Asia", "label": "GPE", "start_char": 88590, "end_char": 88594, "source": "ner", "metadata": {"in_sentence": "Further, countries in Asia exihibit many points of similarity as welll as of divergence in respct of land reform."}}, {"text": "Arts. 31A(l)", "label": "PROVISION", "start_char": 89390, "end_char": 89402, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 89543, "end_char": 89555, "source": "ner", "metadata": {"in_sentence": "D. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 817\n\ncame into the Constitution shortly after and as the very First Amendment to the Constitution.", "canonical_name": ".Krishna Iyer"}}, {"text": "Jawaharlal Nehru", "label": "OTHER_PERSON", "start_char": 90029, "end_char": 90045, "source": "ner", "metadata": {"in_sentence": "I quote it here because the voice cif Parliament belightS, when played back, the words of the Articles to better appreciate their import and amplitude :\n\n\"Shri Jawaharlal Nehru : . ."}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 90083, "end_char": 90090, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "articles 31", "label": "PROVISION", "start_char": 91621, "end_char": 91632, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31B", "label": "PROVISION", "start_char": 92159, "end_char": 92167, "source": 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"end_char": 112060, "source": "ner", "metadata": {"in_sentence": "The Punjab High Court has ventured to hold that the law is bad for reasons repeated before us and repelled by us unanimously."}}, {"text": "Allahabad", "label": "GPE", "start_char": 112169, "end_char": 112178, "source": "ner", "metadata": {"in_sentence": "The Allahabad judgment has shown noetic naivete and novel legal logic in condemning the provisions to death on grounds which the counsel cared to espouse before us."}}, {"text": "U.P.", "label": "GPE", "start_char": 113120, "end_char": 113124, "source": "ner", "metadata": {"in_sentence": "S.R.\n\nMaharashtra appeals dismissed, U.P. & Punjab appeals\n\n allowed."}}]}
{"document_id": "1977_3_75_77_EN", "year": 1977, "text": ". ,\n\nBHAGABANDAS AGARWALLA A\n\nBHAGW AND AS KANU & ORS.\n\nFebruary 25, 1977\n\n[P. N. BHAQWATI AND S. MURTAZA FAZAL ALI, JJ.] B Transfer of P1operty Act, S. 106, Notice to quit, whether should be construed in ai hyper-critical manner.\n\nThe appellant filed a suit for evicting his tenant Bhagwandas Kanu etc. after giving them a notice to quit. The Trial Court dismissed the suit but on appeai, the First Appellate Court passed a decree for eviction against the respondents.\n\nIn second appeal before the High Court, the respondents assailed the. validity of the notice to quit, on. the ground that it did not conform with the requirements C of 5', 106 of the Trahsfer of Property Act. The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the month of the tenancy, and was i:q.valid.\n\nAllowing the appeal by special leave, the Court,\n\nHELD : A notice to quit must be consVUed ut res n1agis valeat quani pereat.\n\nIt must not be read in a hyper.critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be D construed in a common sense way. The notice to qui required the respondents to vacate \"within the month of October 1962\", otherwise they would be treated as trespassers from 1st November, 1962.\n\nThis makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any -earlier point of time during the currency of that month.\n\n[76 D, F, 77E]\n\nSidebothan1 v. Holland (1895) 1 Q.B. 378; Harihar Banerji v. Ramsashi Roy 45 I.A. 222, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2080 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated 11-4-68 of the Assam and Nagafand High Court in Second Appeal No. 98/65.\n\nG. L. Sanghi and K. J. John for the Appellant.\n\nS. K. Nandy and G. S. Chatterjee for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J., This appeal by special leave raises a short question relating to the validity of a notice to quit given by the appellant terminating the tenancy of the respondents.\n\nThe appellant, as landlord, filed a suit for eviction against the respondents as tenants, after giving ' a notice to quit dated 25th September, 1962.\n\nThe Trial Court dismissed the suit but on appeal, the First Appellate Court reversed the judgment of the Tritt! Court and passed a decree of eviction against the respondents.\n\nThe respondents preferred a second appeal to the High Court and the only question debated before the High Court was in regard to the validity of the notice to quit. There were two grounds on which the notice to quit was assailed as invalid. The first is immaterial since the decision of the High Court negativing it has not been challenged before us on behalf of the respondents.\n\nThe second was\n\nSUPREME COURT REPORTS ll 9771 3 s.c.R.\n\nthat the notice to quit was invalid as it was not in conformity with the requirements of section 106 of the Transfer of Property Act. That section says that in the absence of a contract or local law or usage to the contrary, a lease from month to month shall be terminable, \"on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy\". The argument of the respondents before the High Court was that the notice to quit did not expire with the end of the month of the tenancy and was hence invalid. This argument found favour. with the High Court and it held that the notice to quit was not clear and unambigtious and was \"open to doubt as to the date of determination of the tenancy\" and did not terminate the tenancy on the expiration of the month of the tenancy and was, therefore, invalid and in this view it dismissed the suit of the appellant. The appellant thereupon preferred the present appeal with special leave obtained from this Court. , ·\n\nThe only question which arises for determination in this appeal is whether the notice to quit given by the appellant to the respondents was invalid as not being in conformity with the requirements of section 106 of the Transfer of Property Act. The notice to quit, so far as material, was in the following terms :\n\n\"You arc hereby informed by this notice that you wHI vacate the said house for our possession within the month of October 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house.\" The tenancy was admittedly a monthly tenancy and hence the notice to quit could not be _said to be valid under section 106 of the Transfer of Property Act unless it expired with the end of the month of the tenancy. The view taken by the High Court was that since by the notice to quit the appellant called upon the respondents to vacate the premises \"within the month of October 1962\" and not on the expiration of that month, the notice to quit was not in accordance with law and did not operate to determine the tenancy of the respondents. The question is whether this view taken by the High Court can be sustained.\n\nNow, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. \"The validity of a notice to quit\", as pointed out by Lord Justice Lindley, L.J. in Side- botham v. Holland('), \"ought not to turn on the splitting of a straw\".\n\nIt must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or overrefined subtlety, but it must be construed in a commonsense way.\n\nSee Harihar Banerji v.\n\nRamsashi Roy('). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation.\n\nIt is indisputable that under section 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy, or in other words, it must terminate the tenancy with effect\n\n(1) [18951 I Q.B. 378.\n\n(2) 45 I.A. 222.\n\n-- .,._\n\n• '\n\nBHAGABANDAS AGARWALLA v. BHAGWANDAS KANU (Bhagwati, !.) 77\n\nfrom the expiration of the month of the tenancy. If it terminates the tenancy with effect from an earlier date, it would be clearly invalid.\n\nNow, here the notice to quit required the respondents to vacate the premises \"within the month of October 1962\" and intimated to them that otherwise they would be \"treated as trespassers from !st November\"\n\nin respect of the premises. The question is : what is the meaning and effect of the words \"within the month of October 1962\" in the context in which they are used in the notice to quit? Do these words mean that the tenancy of the respondents was sought to be terminated at a date earlier than the expiration of the month of October 1962 and they were required to vacate the premises before such expiration ? We do not think so. When the notice to quit required the respondents to vacate \"within the month of October 1962\", what it meant was that the respondents could vacate at any time within the month of October 1962 but not later than the expiration of that month. The last moment up to which \\he respondents could, according to the notice to quit, lawfully continue to remain in possession of the premises was the mid-night of 31st Octob€r, 1962. We fail to see any difference between a notice asking a tenant to vacate \"within the month of October 1962\" and a notice requiring a tenant to vacate latest by the mid-night of 31st October, 1962, because in both cases, the tenant would be entitled to occupy the premises up to the expiration of 31st October, 1962 but not beyond it. This position would seem to follow logically and incontestably, as a matter of plain natural construction, from the use of the words \"within the month of October 1962\" without any thing more, but here it is placed beyo_nd doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st November, 1962. This makes the intention of the afithors of the notice clear that they are terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. If the respondents do not vacate the premises within the month of October 1962, they would be treated as trespassers from 1st November, 1962 and not from any earlier date, clearly implying that they would lawfully continue as tenants up to the expiration of the month of October 1962.\n\nThe tenancy was, therefore, sought to he determined on the expiration of the month of October 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by section I 06 of the Transfer of Property Act. It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the mid-night of 31st October, 1962.\n\nWe accordingly allow the appeal, set aside the order of the High Court and restore the decree for eviction passed against the respondents.\n\nSince the respondents have been in possession of the premises for a Jong time, it is but fair that they should have some reasonable time to vacate the premises. Hence we direct that the decree for eviction shall not be executable against the respondents up to 31st October, 1977 on condition that the respondents continue to pay to the appellant regularly from month to month an amount equivalent to the monthly rent as and by way of compensation for use and occnpation of the permises. There will be no order as to costs throughout.\n\nM.R.\n\nAppeal allowed.", "total_entities": 25, "entities": [{"text": "BHAGABANDAS AGARWALLA", "label": "PETITIONER", "start_char": 5, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "BHAGABANDAS AGARWALLA", "offset_not_found": false}}, {"text": "A\n\nBHAGW AND AS KANU & ORS", "label": "RESPONDENT", "start_char": 27, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "BHAGWANDAS KANU & ORS", "offset_not_found": false}}, {"text": "February 25, 1977", "label": "DATE", "start_char": 56, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "February 25, 1977\n\n[P. N. BHAQWATI AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "S. 106", "label": "PROVISION", "start_char": 150, "end_char": 156, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 1689, "end_char": 1717, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 1883, "end_char": 1895, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and K. J. John for the Appellant."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 1900, "end_char": 1910, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and K. J. John for the Appellant."}}, {"text": "S. K. Nandy", "label": "LAWYER", "start_char": 1931, "end_char": 1942, "source": "ner", "metadata": {"in_sentence": "S. K. Nandy and G. S. Chatterjee for the Respondent."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 1947, "end_char": 1963, "source": "ner", "metadata": {"in_sentence": "S. K. Nandy and G. S. Chatterjee for the Respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 2029, "end_char": 2037, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J., This appeal by special leave raises a short question relating to the validity of a notice to quit given by the appellant terminating the tenancy of the respondents."}}, {"text": "Tritt! Court", "label": "COURT", "start_char": 2465, "end_char": 2477, "source": "ner", "metadata": {"in_sentence": "The Trial Court dismissed the suit but on appeal, the First Appellate Court reversed the judgment of the Tritt!"}}, {"text": "section 106", "label": "PROVISION", "start_char": 3062, "end_char": 3073, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3081, "end_char": 3105, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 106", "label": "PROVISION", "start_char": 4177, "end_char": 4188, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 4196, "end_char": 4220, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 106", "label": "PROVISION", "start_char": 4624, "end_char": 4635, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 4643, "end_char": 4667, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lindley", "label": "JUDGE", "start_char": 5392, "end_char": 5399, "source": "ner", "metadata": {"in_sentence": "The validity of a notice to quit\", as pointed out by Lord Justice Lindley, L.J. in Side- botham v. Holland('), \"ought not to turn on the splitting of a straw\"."}}, {"text": "section 106", "label": "PROVISION", "start_char": 5881, "end_char": 5892, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 5900, "end_char": 5924, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1st November, 1962", "label": "DATE", "start_char": 8062, "end_char": 8080, "source": "ner", "metadata": {"in_sentence": "This position would seem to follow logically and incontestably, as a matter of plain natural construction, from the use of the words \"within the month of October 1962\" without any thing more, but here it is placed beyo_nd doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st November, 1962."}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8830, "end_char": 8854, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "31st October, 1962", "label": "DATE", "start_char": 8993, "end_char": 9011, "source": "ner", "metadata": {"in_sentence": "It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the mid-night of 31st October, 1962."}}, {"text": "31st October, 1977", "label": "DATE", "start_char": 9414, "end_char": 9432, "source": "ner", "metadata": {"in_sentence": "Hence we direct that the decree for eviction shall not be executable against the respondents up to 31st October, 1977 on condition that the respondents continue to pay to the appellant regularly from month to month an amount equivalent to the monthly rent as and by way of compensation for use and occnpation of the permises."}}]}
{"document_id": "1977_3_767_770_EN", "year": 1977, "text": "FIRM PANJUMAL DAULATRAM v.\n\nSAKHI GOPAL\n\nMay 3, 1977\n\n[V, R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J\n\nMudhya Pradesh Accommodation Control Act, 1961 S. 12(l)(e) & (f)-\n\n' Scope of-Bona fide requiren1ent-Requireme11t of the land-lord of ai:C01111not1ation of both residential and 11011-residential part of the building, if proved entitled eviction of the tenant.\n\nUnder sub clauses (e) and (f) of S. 12(1) of the Madhya Pradesh Accommodation Control Act, 1961, a landlord can evict a tenant, if the residential and the non-residential accommodation respectively let out to the latter is C required bona fide by him for occupation as a residence and for the purpose of continuing or starting his business.\n\nAccommodation unP.er the Act _means any building or part of a building, whether residential or non-residentiul.\n\nThe appellanttenant was inducted in by the respondent in 1955 for the dual purposes of residential and nonresidential purpose of running a cloth shop.\n\nfhe landlord, bona fide required the building for his residence and also for starting bis business of running a Chemist shop. The Eviction Suit filed by him was dismissed by the trial court, but the appellant and the High Court D, granted him the eviction decree.\n\nDiscussing the appeal by special leave, the Court.\n\nHELD : The residential portion as well as a nonresidential portion are parts of the building and each is an accommodation by definition.\n\nThe land lord is entitled to eviction of the \"accommodation\" if he makes out a bona fide residential and nonresidential requirement of the portions.\n\nIn the instant case the contract was integral but had dual purpose. The landlord has put i' forward dual requirements which neatly fit into S. 12 (I) (e) and (f) of the J\\iadhya Pradesh Accommodation Control Act, 1961. The findings of th~ -t. ;:;, ppellate Court regarding the bona fide requirement of the landlord, not having been challenged in the High Court and in this Court in the memorandum of Appeal, the consequence viz. eviction is inevitable. [769 EG]\n\nS. Sanyal v. Gianchand (1968] I S.C.R. 536, distinguished.\n\nlThe Court, however granted time to the appellants for vacating the build F ing till 1-1-1978, in terms of equity].\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 991/76.\n\n(Appeal by Special Leave from the Judgment and Order dated the 21.1.1976 of the Madhya Pradesh High Court in Second Appeal No. 415 of 1971)\n\nS. Choudhury, D. N. Mishra, 0. C. Mathur and Shri Narain for the appellant.\n\nG. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non-residential\n\npurposes resulted in dismissal by the! trial Judge.\n\nBut in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction.\n\nThe tenant challenged the appellate decree before the' High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.\n\nA short point has been raised which deserves only a short answer.\n\nSince we agree with the Hi~ Court which in tum has agreed with the first appellate court, , our judgment can afford to be brief,\n\nA statement of necessary facts may now be given.\n\nThe landlord had let out the premises, which is a storeyed building, to be tenant as per Ex. P-1 of 1955.\n\nThe significant clause irt the lease deed runs thus :\n\n\"1 xxx\n\n2. I take your house for \"my own use i.e. for opening a cloth shop and for residential purposes and I will net sublet your house to anybody.\n\nxxx xxx xxx xxx.\"\n\nThe tenant has thus put the building to business and residential purposes.\n\nThe landlord, who is an M. Sc., claimed the building back on the scorn that he wanted to run a medical store on the ground floor---a non-residential purpose---and sta:ron the first floor with his wife-a residential purpose.\n\nThus the acommodation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above.\n\nThe final court of fact has held that the landlord needs the building for his chemist's shop and for his residential use.\n\nThe High Court in Second Appeal has upheld this finding and added that\n\n\"the finding as to his bonafide requirement was rightly not challenged before me ...... ' The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing.\"\n\nThis statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned, in the memorandum of appeal to this Court.\n\nIt must therefore be taken that the bonafide need of the landlord is validly made out.\n\nThe short point that survives is as to whether the composite purposes of the lease would put it out of the ground, set out for eviction under s. 2 of the Madhya Pradesh Accommodation Control Act, 1961.\n\nThe said Act defines 'accommodation' thus :\n\nH \" 'accommodation' means any building or part of a building, whether residential or non-residential and includes,-- xx xxx xxx.\"\n\nFIRM PANJUMAL v. SAKHI GOPAL (Krishna Iyer, J.) 769\n\nIt follows that an accommodation can be residential, non-residential A or both. S. 12 bars an actiun of eviction of a tenant from any accommodation except on one or more of the grounds set out therein.\n\nS. 12(l)(e) and (f), bearing on the present case, may be appropriately ! extracted here :\n\n, •• \"'\n\n\"12. Restriction on eviction of ten en ts (1)\n\n(a) to (d) B x x x x x\n\n( e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in the occupation in the city or town concerned;\n\n(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose\n\n'of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner there. of or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned; . xxx xxx xxx.\"\n\nThe residential portion is a part of the building and is an accommodation by definition.\n\nThe non-residential portion is also a part of the building and is an accommodation by definition.\n\nThe lease has been given for residential as well as non-residential purposes.\n\nThe landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement.\n\nLikewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement.\n\nWe havel already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non-residential require. ments.\n\nTherefore, nothing more can be done in defence of the tenant in the light of the present law.\n\nCounsel contended that in a decision of this Court, viz, S. Sanyal\n\nv. Gian Chand,('). it has been held that it is not permissible for the court to split up a contract in an eviction proceeding.\n\nWe agree.\n\nThere is no question of splitting up of the contract in the present case, as is abundantly plain from what we have stated.\n\nThe contract was integral but had dual purposes.\n\nThe landlord has put forward dual requirements which neatly fit into s. 12(1 )(e) and (f). The consequence is inevitable that the eviction order has to be upheld.\n\n--olr1~9~6Bl ~1 =s.=c~.R-. si~6-.\n\nIt i~ seen; that the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years.\n\nIt is therefore but fair that the tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation.\n\nIn our towns where scarcity .of accommodation i~ the rule it is not that easy to secure alternative premises. Taking: due note of this reality, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978.\n\nParties will bear their respective costs.\n\nS.R.\n\nAppeal dismissed. •\n\n~ .\n\n>. 41\n\n\" (", "total_entities": 27, "entities": [{"text": "FIRM PANJUMAL DAULATRAM", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "FIRM PANJUMAL DAULATRAM", "offset_not_found": false}}, {"text": "SAKHI GOPAL", "label": "RESPONDENT", "start_char": 28, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "SAKHI GOPAL", "offset_not_found": false}}, {"text": "May 3, 1977", "label": "DATE", "start_char": 41, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "FIRM PANJUMAL DAULATRAM v.\n\nSAKHI GOPAL\n\nMay 3, 1977\n\n[V, R. KRISHNA IYER, R. S. SARKARIA AND JASWANT SINGH, JJ.J\n\nMudhya Pradesh Accommodation Control Act, 1961 S. 12(l)(e) & (f)-\n\n' Scope of-Bona fide requiren1ent-Requireme11t of the land-lord of ai:C01111not1ation of both residential and 11011-residential part of the building, if proved entitled eviction of the tenant."}}, {"text": "R. KRISHNA IYER", "label": "JUDGE", "start_char": 58, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 75, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 94, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Mudhya Pradesh Accommodation Control Act, 1961", "label": "STATUTE", "start_char": 115, "end_char": 161, "source": "regex", "metadata": {}}, {"text": "S. 12(l)(e)", "label": "PROVISION", "start_char": 162, "end_char": 173, "source": "regex", "metadata": {"linked_statute_text": "Mudhya Pradesh Accommodation Control Act, 1961", "statute": "Mudhya Pradesh Accommodation Control Act, 1961"}}, {"text": "S. 12(1)", "label": "PROVISION", "start_char": 409, "end_char": 417, "source": "regex", "metadata": {"linked_statute_text": "Mudhya Pradesh Accommodation Control Act, 1961", "statute": "Mudhya Pradesh Accommodation Control Act, 1961"}}, {"text": "Madhya Pradesh Accommodation Control Act, 1961", "label": "STATUTE", "start_char": 425, "end_char": 471, "source": "regex", "metadata": {}}, {"text": "S. 12", "label": "PROVISION", "start_char": 1728, "end_char": 1733, "source": "regex", "metadata": {"statute": null}}, {"text": "Pradesh Accommodation Control Act, 1961", "label": "STATUTE", "start_char": 1766, "end_char": 1805, "source": "regex", "metadata": {}}, {"text": "S. Choudhury", "label": "OTHER_PERSON", "start_char": 2426, "end_char": 2438, "source": "ner", "metadata": {"in_sentence": "415 of 1971)\n\nS. Choudhury, D. N. Mishra, 0."}}, {"text": "D. N. Mishra", "label": "OTHER_PERSON", "start_char": 2440, "end_char": 2452, "source": "ner", "metadata": {"in_sentence": "415 of 1971)\n\nS. Choudhury, D. N. Mishra, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 2454, "end_char": 2466, "source": "ner", "metadata": {"in_sentence": "415 of 1971)\n\nS. Choudhury, D. N. Mishra, 0."}}, {"text": "Narain", "label": "OTHER_PERSON", "start_char": 2476, "end_char": 2482, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Shri Narain for the appellant."}}, {"text": "G. L. Sanghi", "label": "OTHER_PERSON", "start_char": 2503, "end_char": 2515, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent."}}, {"text": "V. K. Sanghi", "label": "OTHER_PERSON", "start_char": 2517, "end_char": 2529, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent.", "canonical_name": "V. K. Sanghi"}}, {"text": "R. K. Sanghi", "label": "OTHER_PERSON", "start_char": 2531, "end_char": 2543, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent.", "canonical_name": "V. K. Sanghi"}}, {"text": "S. S. Khanduja", "label": "OTHER_PERSON", "start_char": 2548, "end_char": 2562, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, V. K. Sanghi, R. K. Sanghi and S. S. Khanduja for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 2628, "end_char": 2640, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non-residential\n\npurposes resulted in dismissal by the!"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5009, "end_char": 5013, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Accommodation Control Act, 1961", "label": "STATUTE", "start_char": 5021, "end_char": 5067, "source": "regex", "metadata": {}}, {"text": "S. 12", "label": "PROVISION", "start_char": 5379, "end_char": 5384, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Accommodation Control Act, 1961", "statute": "the Madhya Pradesh Accommodation Control Act, 1961"}}, {"text": "S. 12(l)(e)", "label": "PROVISION", "start_char": 5502, "end_char": 5513, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Accommodation Control Act, 1961", "statute": "the Madhya Pradesh Accommodation Control Act, 1961"}}, {"text": "s. 12(1 )(e)", "label": "PROVISION", "start_char": 7827, "end_char": 7839, "source": "regex", "metadata": {"statute": null}}, {"text": "1st January, 1978", "label": "DATE", "start_char": 8467, "end_char": 8484, "source": "ner", "metadata": {"in_sentence": "Taking: due note of this reality, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978."}}]}
{"document_id": "1977_3_771_774_EN", "year": 1977, "text": "JOSEPH PETER\n\nSTAIB OF GOA, DAMAN AND DIU\n\nMay 4, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.J\n\nC'rirninal Procedure Code, .1973. (Act II of 1974), Section 354(3)-Discretionary power to choose fretween capital sentence and life tenn is a limited one-Leaie should. be. refused when it is difficult to fault the court which has lXercised such a po_wer under Art. 136 of the Constitution.\n\nCrifninal Procedure Code, 1898, Section 377-Scope of .\n\n. .Goa, Daman and Diu (Judicial Commissioner's Court) Regulation. 1963-Regulation 8(1) does 1wt bar the referred jurisdiction of the Judicial C Com1nissioner's Court. - -\n\nSentence-Extenuating circumstances--Circumstance that the accused is a young man or that the sentence of death has been haunting him for long alone cannot entitle him for judicial cle1ne11cy. -\n\nThe petitioner was convicted for the offence of murder under s. 302, I.P.C. and sentenced to death by the Trial Court. The Judicial Commissioner, Goa confirmed the death sentence in the referred trial under s. 374 of the 1898 Code of Criminal Procedure.\n\nDismissing the special leave petition to appeal, the Court.\n\nRELD ·:- ( 1) Discretion to choose between the capital sentence and life term under s. 354(3) of the 1973 Code of Criminal Procedure is limited. -Jf the offence ha&-- been perpetrated with attendant aggravating circumstances, if the pefpetrator disclOses an eXtremely depraved state of mind and diabolical E trickery in committing. the homicide; accompanied by brutal dealing with the cadaver, infliction of death Penalty 'cannot be avoided. Special leave under Art. 136 of the Constitution cannot be granted when it is difficult to fault the court on any ground, statutory ~-precedental. {772 G-H, 773 A]\n\nEdiga Annamma, .AIR 1974 SC. 799, referred to.\n\n(2) Section 377 of 1g9g Code ot Criminal Procedure apPlies only to situations where the court at the lime of the confirmation of the death sentence F consists of two or \"more Judges.. Section 4(1)(i:). of the -Code of Criminal Procedure, in relation to a Unfon Tetritory, y brings within the definition of \"High Court'', the highest coilrt of c.riminal -appeal for that area, namely, the Judicial Commissioner's Court.\n\nIf, at the time the case for confirmation of death sentence is being heard, the Judicial commissioner's Court consists of more than one Judge, at least two Judges must attest the confirmation. So long as one Judicial Commissioner alone functions in the Court, section 377 \\:i;'as not attracted. In the present case there is nothing illegal in a single (i.e.\n\nG. the only) Judicial Com.missioner deciding the reference. [773 D-FJ\n\n(3) Referral jurisdiction under s. 377 is akin to appeal and revision.\n\nRegulation 8 ( 1) of the Goa, Daman and Diu (Judicial Commissioner's Court) Reglllation 1963 does not disentitle the Judicial Commissioner from exercising pov, rer _ u/s. 377, Cr.P.C. In the instant case, th<! Judicial Commissioner's confirrria!in of death sen!ence is not without jurisdiction. [774 C-D]\n\n(4) -Judici:al clemency cannot attenuate the sentence .of death on the sole 1:1 circumstance that the accused was. a. young man and the sentence of death been hauruing him fo~ .long withop.t pther supple_ment fctors or n th~ face of surrounding beastly Clfcumstarices of the crone.\n\nPossibly, Pes1dential power wider but judicial powecis :erriba\"ked. (774 E; F]\n\nI0-7Q7SCI/77\n\nA' CRIMINAL APPELLATE JURISDICTION : Special Leave Petitiqn (Criminal) No. 216/1977.\n\n(From the Judgment and Order dated 28-9-1973 of the Judicial Commissioner, Court, Goa Daman and Diu in Crl. Appeal No. \\ 17 /72).\n\nS. J. S. Fernadez, amicus curiae, for the petitioner.\n\nThe Order of the Court was delivered by\n\nKRISHNA IYER, J.-A death sentence, with all its dreadful scenario of swinging desper,.tely out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to this macabre stroke of the executioner's rope.\n\nEven so, judges must enforce the Jaws, whatever they be, and decide according to the best of their lights, but the Jaws, are not always just and the lights are not always luminous.\n\nNor, again, are judicial methods always adequate to secure justice.\n\nWe are bound by the Penal Code and the Criminal Procedure Code, by the very oath of our office.\n\nSection 354(3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term.\n\nIt is true that in the present Code, the unmistakable shift in legislative, emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons . to be stated (Edige Annamma, 1974 SC 799, AIR).\n\nEven so, the discretion is limited and courts can never afford to forget Benjamin Cardozo's wise gnidance :\n\n\"The judge, even when he is free, is still not wholly free.\n\nHe is not to innovate at pleasure.\n\nHe is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.\n\nHe is not to yield to spasmodic sentiment, to vague and unregnlated benevolence.\n\nHe is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.\n\nWide enough in all conscience is the field of discretion that remains.\"\n\n(Cardozo : The Nature of the Judicial Process : Wale University Press ( 1921)).\n\nWe have heard counsel on the merits and perused the paper book with some care and see no ground to disturb the conviction.\n\nThe question of 'sentence' projects sharply before us and what we, have stated above turns our focus on circumstances justifying the graver sentence.\n\nThe learned Sessions Judge has given valid reasons as to why he is imposing the death sentence.\n\nThe gnidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the Jaw, avoiding infliction of the death penalty.\n\nWhen discretion has been exercised by the. trial Court and it is difficult to fault that\n\nJOSEPH PETER v. GOA (Krishna Iyer, J.) 773\n\ncourt on any ground, statutory or precedential, an appellate review and A even referral action become too narrow to demolish the discretionary exercise of power by the inferior court.\n\nSo viewed, it is clear that the learnd Judicial Commissioner has acted rightly in affirming the death sentence.\n\nWe are unable to grant 'leave on this score either.\n\nCounsel for the petitioner has urged that the affirmation by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death B sentence is illegal.\n\nAccording to him s. 377 of the old code (which govern the instant case), is a missile which will bit down the confirmation by the Judicial Commissioner. The said section reads :\n\n\"377.\n\nIn every case so submitted the confirmation ol the sentence, or any new sentence or order passed by fhe High Court, shall, when such Court consists of two or more C Judges, be made, passed and signed by at least two of them.\"\n\nThis section means, as we understand it, thai when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them.\n\nThis provision obviously applies only to situations where ihe court, at the time D of the confirmation oi; the death sentence, consists of two or more judges.\n\nIt is true that s. 4(1) (i) in relation to a Union Territory brings within the definition of the 'High Court' the highest court of criminal appeal for that area viz., the Judicial Commissioner's court.\n\nIt therefore follows that if, at the time ihe case for confirmation of the death senfence is being heard, the Judicial Corumissioner's court consists of more than one judge, at E least two judges must attest the confirmation.\n\nIn the present case it is common ground that when the case was heard and judgment pronounced there was only one Judicial Commissioner, although the sanctioned strengtl1 was two.\n\nSo long as one Judicial Commissioner alone functioned in the court, s. 377 was not attracted. The necessary inference is that in the present case there is nothing illegal in a Single (i.e. the only) Judicial C0U1U1issioner deciding the reference.\n\nWe are aware that the insistence of the Code on two judges hearing the matter of such gravity as a deaili sentence invol~ is because of the law's grave concern that human life shall not be judicially depnved unless at least two minds at almost the highest level are applied.\n\nEven so, exceptional siiuations may arise where two judges are not available in a High Court and, in that narrow contingency, the Code permits what has now happened.\n\nWe cannot fault the judgment on G this ground either.\n\nCounsel for the petitioner contends that the Criminal Procedure Code is a general statute but the Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 is a special law whi'ch prevails against the general.\n\nOn that footing he argues tbat under Regulation 8 (1) the Court of the Judicial Commissioner shall have only H such jurisdiction as is exercisable in respect of Goa, Daman and Diu by the Tribunal de Relacao.\n\nAccording to him, the said Tribunal did not have the powers of. confirmation of death sentence, and,\n\ntherefore, the judicial Commissioner cannot exercise such power.\n\nHe also argues that under the said provision the Judicial Commissioner is the highest Court of Appeal and Revision but not of Reference and for that reason cannot exercise the powrs under section 377 of the old Criminal Procedure Code.\n\nWe see 'no force in these twin submissions.\n\nA Code is complete and that marks the. distinction between a Code and an ordinary enactment.\n\nThe Criminal Procedure Code, by that canon, is self-contained andl complete. It defines a High Court which takes in a Judicial Commissioner's Court. (Section 4(1)(i).\n\nWe need not and indeed may not travel beyond the Code into the territory of the Regulation.\n\nEven otherwise, there is nothing in Regulation 8(1) which helps the petitioner. It provides that the Judicial Commissioner shall be the highest criminal Court, 'Appeal and Revision' used in that provision are words of the widest import and cover all proceedings which are not original proceedings but are by way of judicial review for a higher level.\n\nReferral jurisdiction, under section 3 77, is skin to appeal and revision and we think that Regulation 8(1) does not dientitle the Judicial Commissioner\n\nfrom exercising power under section 3 77 of the Code : nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did, not have the power to confirm death sentences, and, therefore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power.\n\nRegulation 8 (1) does not limit the jurisdiction of the Judicial Commissioner in the sense counsel wants us to accept.\n\nWe therefore hold that the Judicial Commissioner's confirmation of the death sentence is not without jnrisdiction.\n\nUndeterred by the fact that the murder is grnesome counsel has pleaded that at least on the question of sentence leave should be granted because his client is a young man and the sentence of death has been haunting him agonisingly for around six years. May be that such a long spell of torment ; may be one circumstance in giving the lesser sentence.\n\nEven so, we have to be guided by the rulings of thisCourt which have not gone to the extent of holding that based on this\"Circumstance alone, without other supplementing {actors or in the face ofi surrounding beastly circumstances of the crime, judicial clemency can attenuate the sentence-. Possibly, Presidential power is wider but judicial power is embanked.\n\nWe refuse special leave and dismiss the petition.\n\nPetition dismissed:", "total_entities": 43, "entities": [{"text": "JOSEPH PETER", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "JOSEPH PETER", "offset_not_found": false}}, {"text": "STAIB OF GOA, DAMAN AND DIU", "label": "RESPONDENT", "start_char": 14, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF GOA, DAMAN AND DIU", "offset_not_found": false}}, {"text": "May 4, 1977", "label": "DATE", "start_char": 43, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "JOSEPH PETER\n\nSTAIB OF GOA, DAMAN AND DIU\n\nMay 4, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.J\n\nC'rirninal Procedure Code, .1973. ("}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 57, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 80, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Section 354(3)", "label": "PROVISION", "start_char": 153, "end_char": 167, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 361, "end_char": 369, "source": "regex", "metadata": {"statute": null}}, {"text": "Crifninal Procedure Code, 1898", "label": "STATUTE", "start_char": 392, "end_char": 422, "source": "regex", "metadata": {}}, {"text": "Section 377", "label": "PROVISION", "start_char": 424, "end_char": 435, "source": "regex", "metadata": {"linked_statute_text": "Crifninal Procedure Code, 1898", "statute": "Crifninal Procedure Code, 1898"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 876, "end_char": 882, "source": "regex", "metadata": {"linked_statute_text": "Crifninal Procedure Code, 1898", "statute": "Crifninal Procedure Code, 1898"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 884, "end_char": 889, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 374", "label": "PROVISION", "start_char": 1022, "end_char": 1028, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 1041, "end_char": 1067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 354(3)", "label": "PROVISION", "start_char": 1215, "end_char": 1224, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 1237, "end_char": 1263, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1593, "end_char": 1601, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Ediga Annamma", "label": "OTHER_PERSON", "start_char": 1738, "end_char": 1751, "source": "ner", "metadata": {"in_sentence": "772 G-H, 773 A]\n\nEdiga Annamma, .AIR 1974 SC."}}, {"text": "Section 377", "label": "PROVISION", "start_char": 1790, "end_char": 1801, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 4(1)(i:)", "label": "PROVISION", "start_char": 1970, "end_char": 1986, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 1996, "end_char": 2022, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 377", "label": "PROVISION", "start_char": 2466, "end_char": 2477, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 377", "label": "PROVISION", "start_char": 2668, "end_char": 2674, "source": "regex", "metadata": {"statute": null}}, {"text": "Diu", "label": "OTHER_PERSON", "start_char": 2748, "end_char": 2751, "source": "ner", "metadata": {"in_sentence": "Regulation 8 ( 1) of the Goa, Daman and Diu (Judicial Commissioner's Court) Reglllation 1963 does not disentitle the Judicial Commissioner from exercising pov, rer _ u/s. 377, Cr."}}, {"text": "s. 377", "label": "PROVISION", "start_char": 2876, "end_char": 2882, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 2884, "end_char": 2890, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. J. S. Fernadez", "label": "LAWYER", "start_char": 3608, "end_char": 3625, "source": "ner", "metadata": {"in_sentence": "S. J. S. Fernadez, amicus curiae, for the petitioner."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 3704, "end_char": 3716, "source": "ner", "metadata": {"in_sentence": "The Order of the Court was delivered by\n\nKRISHNA IYER, J.-A death sentence, with all its dreadful scenario of swinging desper,.tely out of the last breath of mortal life, is an excrutiating hour for the judges called upon to lend signature to this macabre stroke of the executioner's rope."}}, {"text": "are bound by the Penal Code and the Criminal Procedure Code", "label": "STATUTE", "start_char": 4208, "end_char": 4267, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 354(3)", "label": "PROVISION", "start_char": 4302, "end_char": 4316, "source": "regex", "metadata": {"linked_statute_text": "We are bound by the Penal Code and the Criminal Procedure Code", "statute": "We are bound by the Penal Code and the Criminal Procedure Code"}}, {"text": "Benjamin Cardozo", "label": "OTHER_PERSON", "start_char": 4766, "end_char": 4782, "source": "ner", "metadata": {"in_sentence": "Even so, the discretion is limited and courts can never afford to forget Benjamin Cardozo's wise gnidance :\n\n\"The judge, even when he is free, is still not wholly free."}}, {"text": "Goa", "label": "GPE", "start_char": 6852, "end_char": 6855, "source": "ner", "metadata": {"in_sentence": "Counsel for the petitioner has urged that the affirmation by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death B sentence is illegal."}}, {"text": "Diu", "label": "GPE", "start_char": 6857, "end_char": 6860, "source": "ner", "metadata": {"in_sentence": "Counsel for the petitioner has urged that the affirmation by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death B sentence is illegal."}}, {"text": "Daman", "label": "OTHER_PERSON", "start_char": 6865, "end_char": 6870, "source": "ner", "metadata": {"in_sentence": "Counsel for the petitioner has urged that the affirmation by the Judicial Commissioner's court of Goa, Diu and Daman, of the Death B sentence is illegal."}}, {"text": "s. 377", "label": "PROVISION", "start_char": 6926, "end_char": 6932, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 7683, "end_char": 7690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 377", "label": "PROVISION", "start_char": 8344, "end_char": 8350, "source": "regex", "metadata": {"statute": null}}, {"text": "Counsel for the petitioner contends that the Criminal Procedure Code", "label": "STATUTE", "start_char": 9022, "end_char": 9090, "source": "regex", "metadata": {}}, {"text": "section 377", "label": "PROVISION", "start_char": 9807, "end_char": 9818, "source": "regex", "metadata": {"linked_statute_text": "Counsel for the petitioner contends that the Criminal Procedure Code", "statute": "Counsel for the petitioner contends that the Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 9830, "end_char": 9853, "source": "regex", "metadata": {}}, {"text": "Section 4(1)(i)", "label": "PROVISION", "start_char": 10145, "end_char": 10160, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 3", "label": "PROVISION", "start_char": 10637, "end_char": 10646, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "section 3", "label": "PROVISION", "start_char": 10790, "end_char": 10799, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Tribunal de Relacao", "label": "ORG", "start_char": 10906, "end_char": 10925, "source": "ner", "metadata": {"in_sentence": "Referral jurisdiction, under section 3 77, is skin to appeal and revision and we think that Regulation 8(1) does not dientitle the Judicial Commissioner\n\nfrom exercising power under section 3 77 of the Code : nor are we inclined to accept the submission that on the speculative assumption that the Tribunal de Relacao did, not have the power to confirm death sentences, and, therefore, the Judicial Commissioner, acting as the High Court under the Code, cannot enjoy such power."}}]}
{"document_id": "1977_3_775_801_EN", "year": 1977, "text": "S. B. PATWARDHAN & OTHERS ETC. ETC.\n\nSTATE OF MAHARASHTRA & OTHERS\n\nMay 4, 1977\n\n[Y.V. ClfANDRACHUD, P.K. GOSWAMI AND fl. MURTAZA FAZAL ALI, JJ.]\n\nService matter-Promotees and direct recruits--Rule that \"the probationer recruited directly to the service of Engineer Class II cadre in any year shrill, in a bunch, be placed seni'or to promotees confirmed during that year\"-Validity\n\nof-If quota rule applicable for necruitment should be applicable at the time of confirn1ation in the same cadre.\n\nIn exercise of the power conferred by s. 241 (2) (b) of the Government of India Act, 1935 the Governor of Bombay framed rules called Recruitment Rules of the Bombay Service of Engineers (Class I and Class JI 1939), Rule 2 laid down the method of recruitment to Class I of the Service by direct recruitment and by promotion from the eXisting Bombay Service of Engineers or from the Bombay Service of Engineers Class II.\n\nRule 10 provided that recruitment to Class JI service shall be either by direct recruitment or by_ promotion from (i) the Bombay Subordinate Engineering Service (ii) permanent or temporary supen1isors and (iii) temporary engineers.\n\nIn 1941 the Government of Bombay passed a resolution directing that in the case of direct recruits appointed substantively on probation, seniority should be determined with reference to the date of appointment on probation, while in the case of officers promoted to substantive vacancies, seniority should be determined with reference to the date of their promotion to the substantive vacan cies provided there had been no break in their service prior to their confirmation in these _vacancies.\n\nIn 1949 the Chief Secretary to the Government of Bombay in reply to a representation made by the Bombay Civil Service Association regarding emergency recruitment to the I.A.S. and \"other matters\" stated that promotees could have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collector vis a vls a promoted officer \\Vas determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e., with reference to the date of first appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers.\n\nIn April 1960, a resolution embodying the rules of recruitment to Bombay Service of Engineers CJass I and Class II was passed by the Government and signed by the Under Secretary to the Government \"by order and in the name of the Governor of Bombay\". They provided for direct recruitment through common competitive examination conducted by the State Public Service Commission for both classes of service as well as by promotion. Direct recruits \\Vere to be confirmed after two years in their respective caders. The rules also provided that the ratio of appointments by nomination and promotion to both classes shalli as far as practicable, be 75: 25.\n\nRule 8(i) says that the various categories which manned the Class II subdivisional posts were being compiled into two lists : (i) of Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and (ii) of officiating Deputy Engineers. The future recruitment to Class II cadre was to be made by (a) nomination of candidates recruited directly by competitive examination and (b) promotion from the list of officiating Deputy Engineers in the ratio of 2: 1. Rule 8(ii) provides that further officiating vacancies would be manned from the ranks of the Sub 4 ordinate Service of Engineers. For this purpose of state-wise Select Seniority List was to be maintained of members of the Subordinate Service of Engineers, considered fit to hold subdivisional charge. For inclusion in this list graduates, diploma holders and non-quaUfied persons had to have to their credit service of not less than 3, 8 and 13 years respectively. For confirmation as a Deputy\n\nEngineer the officer was expected to have put in not less than three years\" service as officiating Deputy Engineer.\n\nRule 8(iii) provides that the proba. tioners recruited directly to the Bombay Service of Engineers, Class II cadro in any year shall, in a bunch, be placed senior to promotees confirmed during that year.\n\nOn July 29, 1963 the Government of Maharashtra passed a resolution superseding the 1941 rules and framing new rules for determining int.r se seniority of direct recruits and p, romotees.\n\nOn December 19, 1970 the State Government passed a resolution superseding the resolution of 1960.\n\nRule 33 of the 1970 rules p.(ovides that the seniority list in respect of each of Class I and Class II shall consist of ; Part A confjrmed officers and Part B, not confirmed officers, that Part A shall bearranged with reference to the year of confirmation and confirmed officers shall be treated as senior to the unconfirmed officers in the respective ca:dre and Part B, names shall be arranged with reference to the date of continuous offi~ ciation except where a promotion in an officiating capacity was by way of purely temporary or local arrangement.\n\nImmediately after the 1960 rules were made by the Government of Bombay the State of Bombay was bifurcated into the State of Maharashtra and Gujarat. The Government of Gujarat passed a resolution on lay l, 1960' providing that all rules, regulations, circulars etc., prevailing in the former State of Bombay will continue to operate in the new State of Gujarat until changed or modified. Jn 1965 the Government of Gujarat modified the 196() rules in exercise of the powers conferred by the proviso to Art. 309 of the Constitution and introduced a new clause 10 in the 1960 rules.\n\nOn the bifurcation certain permanent and temporary posts of Deputy Engineers were allocated to the State of Gujarat. Some of the promotee Deputy Engineers fron1 the lower ranks were also allocated to the State of Gujarat and several of them having completed three years' qualifying service had become eligible for confirmation under r. 8(ii) of the 1960 rules but were not confirmed.\n\n\\ ' t\n\nE Tlte two appellants who were recruited as Overseers in 1953 were promoted temporarily as Deputy Engineers in 1959 and 1957 and were confirmed as Deputy Engineers in 1970.\n\nRespondents Nos. 2 and 3, \\vho were. direct 't'- recruits, were appointed as Deputy Engineers in 1963 and 1959 and were confirmed in 1965 and 1961.\n\nThe two appellants alleged that though they had been in continuous service-- as Deputy Engineers since T~J59 and 1957, respondents 2 and 3, who were appointed in 1963 and 1959 were shown as senior to them and that their (the appellants') seniority should have been fixed under the 1941 rules.\n\nIn any case the 1960 rules could not take away the right accrued to them under the rules existing at the time of their promotion in 1959 and 1957 and that r. 8(i1i) of the 1960 rules and r. 33 of the 1970 rules were ultra vires Arts. 14 and 16 of the Constitution.\n\nThe respondents on the other hand contended that neither the 1941 rule& nor 1963 rules had any application to them and that under the 1960 rules \\vhich superseded the 1939 rules, posts of Deputy Engineers were required to be filled in by direct recruits and promotees in the ratio of 75 : 25 and the question of seniority of the appellants could not arise until they were confirmed and their seniority fixed from the date of confirmation in terms of r. S(iii) of the 1960 rules.\n\nHELD :l(a) Except the Bombay Rules of 1939 and the Gujarat notification dated August 21, 1965 the rest of the rules are in the nature of executive instruc. tions, which, unlike rules regulating recruitment and conditions of service framed under the proviso of Art. 309 of the Constitution ors. 241(2)(b) of the Government of India Act, 1935 cannot have any retrospective effect. The rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government in the exercise of constitutional or statutory power. The rules of 1960' and 1970 were issued \"By order and in the name of the Governor\" but that\n\n' ' '\n\ns. B. PATWARDHAN v. MAHARASHTRA 717\n\ndoes not mean that the two sets of rules must be deemed to have been made A under Art. 309 of the Constitution. All executive action of the Government of a State is required by Art. 166 to be taken in the name of the Governor. [790 B-El\n\n(b) The 1939 rules have constitutional authority but being rules made \"to regulate the methods of recruitment\" they afford no assistance in finding a solution to the problem. They neither fix a quota for recruitment from the two avenues nor do they provide in any other manner a guide line for fixation of B seniority as between appointees recruited from different sources.\n\nRule I 0 is beside the point because the crux of the promotees' .grievance is not that they are denied opportunities of promotion but that they are discriminated against in the matter of seniority in comparison with the direct recruits. [790 E-G]\n\n(c) The departmenta.l promotees are being treated unequally In the matter of seniority because whereas, promotees rank for seniority from the date of their confirmation, seniority of direct recruits is reckoned from the date of their C initial appoitltment. The disparity is so glaring that though direct recruits have to successfully complete a two year probationary period before confirmation, even that period is not excluded while counting their senior1ty.\n\nA promotee ranks below the direct recruit even if he has officiated continuously as a Deputy Engineer for years before the appointment of the direct recruit is made and even if the promotees could have been confirmed in an available substantive vacancy before the appointment of the direct recruit. [789 BD]\n\n2(a) The 1941 resolution expressly governed the seniority of direct recruits D and promoted officers in all provincial services except the Bombay Service of Engineers, Class I. Since Deputy Engineers do not belong to Class I service, their seniority was governed by the Resolution. [791 A]\n\n(b) The wording of the Resolution le.aves no doubt that the Government of Bombay applied two different standards for fixing inter se seniority of direct recruits and promotees appointed as Deputy Engineers, The former were entitled to reckon their seniority with effect from the date of their initial E appointment on probation while the seniority of the latter had to be deter~ mined with reference to the date of their promotion to substantive vacancies subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies. Thus, for the purposes of seniority, the promotees had to depend firstly on the availability of substantive vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies. The fact that a substantive vacancy had arisen and was available did not proprio vigore, confer any right F on the promotee to be confirmed in that vacancy. The 1941 rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleasure of the Government for orders of confirmation. In the pre-Constitution era, such hostile treatment had to be suffered silently as a necessary incident of government service. [791 B-D]\n\n(c) It is difficult to uphold the claim of the promotees that the 1941 rules were modified by the letter dated January 11, 1949. The Chief Secretary's letter cannot improve the promotees' case. [791 GJ G\n\n__\\..\n\n(d) The part of the letter on which the promotees rely deals exclusively with the case of Deputy Collectors which makes it difficult to extend the benefit of what is said therein to Deputy Engineers, working in an entirely different branch of government service. The Association had addressed its letter, not to the Ministry which handled problems of Engineering Services, but to the Ministry of Home and Revenue, the latter of which was concerned to consider the grievance of Deputy Collectors. The 09ening sentence of paragraph 2 of the Chief Secretary's reply shows that he was referring to a H class of service in which a quota system was then operating, which did not apply either under the 1939 or under the 1941 ruJes to Engineerinir Services.\n\n[792 A-CJ\n\n~(a) Clause S(iii) is highly discriminatory against promotees apd accords preferential treatment to direct recruits and must be struck down as unconstitutional.\n\n(b) There is no universal rule either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. That 4s primarily a matter of rules and regulations governin, s: the particular service in relation to which thequestion regarding the compos1tion of a cadre arise.s. (793 El\n\nBishan Sarup Gupta v. Union of lndia, [1973] 3 S.C.C. 1 and A. K.\n\nSubraman v. Union of lndia, [1975] 2 S.C.R. 979 referred to.\n\n\n(c) It is difficult to hold that the officiating Deputy. Engineers do not belong to Class II of the Bombay and Gujarat Service of Engineers. [794 A]\n\n(d) The contention that in view of ell. (i) and (ii) of r. 8 of the 196() roles officiating Deputy Engineers do not belong to Class II cadre_ of the Bombay and Gujarat Service of Engineers must be rejected since the point is concluded by the decision of this Court in P. Y. Joshi v. State of Maharashtra [1970] 2 SCR, 615. It was held in that case that the list referred to in cl. (ii) of r. 8 is the same list which is referred to in the latter part of cl. (i) of that rule which speaks of \"future recruitment\". Consequently a promoted officiating Deputy Engineer, who belonged to Class II cadre, was held entitled to be considered for promotion under r. 7 to the post of officiating Executive Engineer if he had put in 7 years' qualifying service. The eligibility for promotion did not require that the officiating Deputy Engineer must have put in 7 years' service after the date of confirmation. [795 B-E]\n\n(e) It must necessarily follow that \"promotion\" with the latter part of r. 8 (i) relating to future recruitment speaks of means promotion as an officiating Deputy Enginer from the Select List prepared under r. 8(ii). A :person thus promoted from the Select List as an officiating Deputy Engineer , is as full and complete a member of the Class II cadre a person directly appointed as a Deputy Engineer. In this view of the matter, the prescription contained in the closing sentence of r.- 8(i) that \"the number of such promotions shall be about 1 /3rd the number of direct recruits appointed in that year\" would apply to initial appointments and cannot govern the confirmation of those who have already been appointed to Class II cadre. In other words, direct recruits and promotees have to be appointed in the proportion of 75: 25 to Class II cadre, the former as Deputy Engineers and the Jatter as officiating Deputy Engineers, but once that i9 done, the quota rule would cease to apply with the result that confirmations in the post of Deputy Engineers are not required to be made in the proportion in which the initial appointments had to be made. Thus r. 8(i) only requires that for every three direct recruits appointed as Deputy Engineers only one promotee can be appointed as officiating Deputy Engineer. The rule cannot be coi:lStrued to mean that for every three confirmations. of Deputy Engineers not more than one promotee can be confirmed as Deputy Engineer. '[795 F-H, 7% A]\n\nA. K. Subraman v. Union of lndia [1975] 2 .S.C.R. 979 followed.\n\n(f) Though drawn from two different sources; the direct -recruitS and promotees constitute in the instant case a sirigle integrated cadre.\n\nThey discharge identical functions,· bear similar responSibilities and acquire an equal amount of experience in their respective assignments. Yet clause (iii) of r: 8 provides that probationers recruited during any year shaJI in a bunch be -treated as senior to promotees confirmed in that year. This formula gives H to the direct recruit even the benefit of his one year's feriod of training and another year's period of probation for the purposes o seniority and denies to promotees the benefit of their lo_ng and valuable experience. If there was some intelligible. ground for this differentiation bearing nexus vrith efficiency ur {Jllbtic services, it might perhaps have been possible to sustain such a\n\nS. B. PATWARDHAN V. MAHARASHTRA 779\n\nclassification. Instead of adopting an intelligible differentia, r. 8 (iii) leaves seniority to be determined an the sole touchstone of confirmation. Confirmation is one of the ingloriOus uncertainties of government service dependi!l, g. neither on efficiency of the incumbent nor on the availability of substantive vacancies.\n\nJn the instant case officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. 1796 C-Gl\n\n(g) There is no substance in the plea that direct recruits must be given weightage on the ground that the engineering services require the infusion of new blood since it is a highly speciaed service. Were it so, the Government would not have itself reduced the prOportional representation gradually so as to tilt the scales in favour of promotees.\n\nBesides, the plea that engineering service is a specialised service is made not by the Government but by recruits who -are interested in so contending. Nor is the apprehnsion justified that the higher echelons of engineering service will in course of time be manned predominantly by promotees. Those recruited directly as Assistant Engineers in Class I can, under the rules, officiate as Executive Engineers after four years' service and are ligible for confirmation as Executive Engineers after a total service of 9 years. Promotees can hardly ever match with that class in terms of seniority. [797 A-CJ\n\n\nIn the instant case rule 8(ii) adopts seniority-cum-merit test for preparing the state-wise Select List of seniority and yet cl. (iii) rejects the test of merit altogether. The vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation. That, under Arts. 14 and 16, is impermissible and, therefore, r. 8(iii) must be struck down as unconstitutional. [797 G~H]\n\n4. The High Court was right in rejecting the contention of the promotees that the 1963 rules superseded the 1960 rules_ by implication and, that, there- E fore, the State Government had no power or authority to apply the critefion. of seniority fixed under the 1960 rules, after their repeal by 1963 ndes. The quota system was the -very essence of 1960 rules and if it was desired to abrogate t_hat system it is .unlikely that the 1963 rules will not even refer to those of 1960. The rules of 1941 having been expressly superseded by 1963 rules, if is difficult to accept that along with the 1941 rules the reSolution .of 1963_ would.not have referred to the 1960 rules also.\n\nSecondly, the resolution of 1970 of the Government of Maharashtra expressly superseded F the 1960 rules which shows that the latter were in force until 1970 and were not superseded by the 1963 rules. The resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter was not applicable to engineering services. [798 C-E]\n\n5. Rules 33 of the 1970 rules in so far as it makes seniority dependent upon the fortuitous circumstance of confirn1ation, is open to the same objection as r. 8(iii) of the 1960 rules and must be struck down for identical reasons. 1800 Al\n\n6. The circulars dated January 12. 1961, March 15, 1963 and October 18,\n\n1~68 which the promotees want to be enforced were issued by the Finance Department and being in .... the nature of inter-departmental communications the)l cannot confer an.y right on the promotees. [800 A-BJ\n\n~ -·\\ . .\n\n7. The High Courts were right on the view that the rules under consideration do not in any manner violate the provsions of the Bombay Reorganisation Act. 11 of 1966. [800-B]\n\n8. The argument in the Gujarat Writ Petitions that though originally the 1960 rules were in the nature of executive instructions they have acquired a statutory force and character by reason of their amendme_nt by the rules of\n\n1965 was righUy rejected by the High Court, because all that was done by the .1965 rules was to introduce a new rule, r. 10, in the 1960 rules.\n\nThe rules of 1960 were neither reiterated nor reenacted by the rules of 1965; and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule-making authority had applied its mind to the rules of 1960 with a view to adopting them. [798 G-H, 799 Al Bachan Singh v. Urnon of India, A.I.R. 1973 S.C. 441 inapplicable.\n\nCIVIL APPELLATE JURISDICTION : C.A. No. 1113 of 1974. (From the Judgment and Order dated the 15/16/17-1-1974 of the Bombay High Court in, S.C.A. No. 815 of 1972)\n\nAND CA No. 242 of 1974 (From the Judgment and order dated the 14-7-1973 of the Gujarat High Court in S.C.A. No. 1418 of 1971).\n\nAND . C. As. Nos. 285-287 of 1974. (From the Judgment and Order dated the 14-7-1973 of tl:J.e Gujarat High Court in S. C. A. No. 1418/71, 422/70 & 1099/69 respectively).\n\nD K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.\n\nJ. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos. 2, 3, 5, 6-13 in CA No. 285, Rr. 2-18 in CA 286 and for Rr. 3, 7, 16-23, 28 and 33, 35-39, 41-43 and 45 in CA 287174.\n\nM. C. Bhandare and M. N. Shroff, for respondents 1 and 2 in CA 1113/74.\n\nM. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.\n\nVeena Devi, for respondent No. 3 in CA No. 1113/74.\n\nM. K. Ramamurthi, Vimal .Dave and Miss Kai/ash Mehta, for the appellants in CAs 285 to 287'/74 and for the respondents No. 2 and 3 in CA 242/7 4.\n\nD. V. Patel, in CA 285 to 287 /74, P.H. Parekh and M. N. Shroff for the respondent No. 1 in CAs Nos. 242/74 and 285 to 287 oe 1974.\n\nThe Judgment ot the Court was delivered by\n\nCHANDRACHUD, J.-This is a group of five appeals, one from Maharashtra and four from Gujarat.\n\nThey involve substantially identical questions and since the appeal from the judgment of the Bombay High Court was argued as the main appeal, we will refer 1:o the facts of that appeal and indicate at appropriate places if there is any material difference between those facts and the facts leading to the Gujarat appeals.\n\nCivil Appeal No. 1113 of 1974 from Maharashtra is by certificate granted by the High Court of Bombay under Art. 133(l){aJ & (b) of the Constitution.\n\nCivil Appeals Nos. 242 and 285-287 of 197 4 from Gujarat are also by certificate granted by the Gujarat High Court under art. 133(1) of the Constitution.\n\nSpecial Civil Application No. 815 of 1972 which has given rise to Civil Appeal No. 1113 of 1974 was disposed of by a Division Bench of the. Bombay High Court by its judgment dated 15th, 16th and 17th January, 1974.\n\nThe four Gujarat appeals arise out of\n\nJ '-\n\n)' .\n\n; '\n\nSpecial Civil Applications Nos. 1099 of 1969, 422 of 1970 and 1418 A of 1971 which were disposed o.f by a Full Bench of the Gujarat High Court by its judgment dated July 14, 1973.\n\nThe complexity of the questions involved in thee appeals has been expressed by the Bombay High, Court by saying that the writ petitions before it involvf'XI \"ticklish and complicated questions\" and by the Gujarat High Court by saying that though, it 'had many occasions to consider complex problems pertaining to service laws, there was \"no case comparable\" to the writ petitions filed before it in the instant case.\n\nThe learned Chief Justice (Bhagwati, J.) who delivered the judgment of the Full Bench observes that these questions of \"unrivalled complexity\" had caused considerable anxiety to the Court in reaching a satisfactory conclusion.\n\nWe share this anxiety which is further heightened by the diametrically opposite and entirely inconsistent stands taken by the State governments from time to time. Evidently, the State governments did not know their own mind and being unable to take up a firm and consistent stand, they defended the various Writ petitions filed against them by their employees according to the mood of the passing moment.\n\nThat must be deprecated.\n\nThe appeals raise tl1e fantiliar question of seniority in service, the competing groups being promotees on the one hand and direct reeruits\n\non the other, to the posts of Deputy Engineers.\n\nThe writ petitions were filed and defended by the rival groups in a representative capacity so that, our decision will bind not only tb:e parties thereto but all others whom, under the relevant provisions df the Code of Civil-Procedure, they were permitted to represent.\n\nTaking the facts of the Maharashtra case, the two appellants therein were initially recruited as Overseers in 1953 and were promoted temporarily as Deputy Engineers, in Janµary 1959 and October 1957 respectively.\n\nThey were confirmed as Deputy Engineers after the coming into force of certain rules framed on February 19, 1970.\n\nThe 1st respondent to the appeal is the State of Maharashtra.\n\nThe 2nd and 3rd respondents were appointed directly on probation as Deput)\" Engineers.\n\nThey are Engineering Graduates but so are the appellants.\n\nRespondents 2 and 3 qualified for direct appointment after passing a competitive examination in 1963 and 1959 respectively.\n\nThey were confirmed two years later, in 1965 and 1961 respectively.\n\nThe grievance of the appellants is that notwithstanding the length of their continuous service as Deputy Engineers since 1959 and 1957,\n\nrespondnts 2 and 3 were shown as senior to them in the Cadre of Deputy Engineers though they were appointed later in 1963 and 1959 respectiviely.\n\nThe appellants claim that their seniority should have been fixed under the rules framed by the then Government of Bombay on November 21, 1941 as clarified by the Chief Secretary to that Government by his letter dated January 11, 1949.\n\nAccording to them, the rules framed by the Maharashtra Government on April 29,\n\n1960 cannot take. away the right which had accrued to them under the rules existing at the time of their promotion in 1959 and 1957.\n\nThey challenge the validity of rule 8(iii) of the 1960 rules and of rule 33 of the 1970 rules a~ being violative of Arts. 14 and 16 of the\n\nConstitution.\n\nThey also challenge the 1970 rules on the ground that they Jack approval of the Central Government, thereby violating the proviso to s.81(6) of the Bombay State Reorganisation Act of 1960.\n\nAccording to the appellants, the 1960 rules were superseded by the rules dated July 29, 1963 and still the State Government continued to apply the defunct rules of 1960.\n\nOn these grounds, broadly, the appellants filed a writ petition in the Bombay High Court on behalf of themselves and all those promoted as Deputy Engineers in Class II of the Maharashtra Engineering Service.\n\nPutting it as briefly as one may, the sum and substance of the stand taken by respondents 2 and 3 is that neither the 1941 rules nor the 1963 rules are applicable to employees in Maharashtra Engineering Service.\n\nThe posts of Deputy Engineers, according to them and according to the State of Maharashtra, were required to be filled in by direct recruits and promotees in the ratio of 7 5 : 25 under the 1960 rules which had superseded the earc lier rules of 1939.\n\nTherefore, according to them, the question of seniority of the appellants could not possibly arise until they were confirmed, and senionty has to be fixed fro01 the respective dates of confirmation in terms of rule S(iii) of the 1960 rules.\n\nThe Government of Maharashtra contended that the confirmation of appellants depended necessarily on the availability of vacancies allotable to them within thei quota of 25 % of the total vacancies, and delay in passing. orders of confirmation was inevitably caused by the fact that the number of officiating DeP.uty Engineers was much too large. In order tO rectify the somewhat unsatisfactory position, the State Government, according to its contention, !t1ramed the 1970 rules, altering the ratio of direct recruits and promotees from 75 : 25 to 34 : 66, as a result of which sevleral promotees were confirmed.\n\nEven prior to that, according to the State Government, whenever vacancies occurred in the substantive posts which were required to be filled is according to the prescribed ratio, those vacancies were duly filled in from amongst the officiating Deputy Engineers and they were given anterior dates 0£ confirmation with effect from the dates when the vacancies had actually occurred.\n\nThe respondents disputed that rule S(iii) of the 1960 rules and rule 3 3 of 1970 rules were uncon'stitutional or otherwise invalid.\n\nBefore examining the merits of these confentions it would be necessary, for a proper understandingof the issues involved in the case, to set out briefly the history of the Engineering Service and the backgronnd in which the Various rules came to be framed.\n\nThe Engineering Service in the then province 'of Bombay consisted, prior to 1937, of (i) the Indian Engineering Service which was an All India Service, (ii) the Bombay Subordinate Service df Engineers,\n\n(iii) Supervisors, both pennanent and temporary, and (iv) temporary Engineers, appointed annually.\n\nThe Bombay Subordinate Service of Engineers consisted of non-gazetted Class III employees, in which 12 posts used to be filled in annually by direct recruitment on the basis of the results of the examination held for Diploma in Civil Engineering.\n\nThe remaining posts used to be filled in by promotion from the\n\ni l\n\nrank of temporary Overseers.\n\nOn March 22, 1937 the Government of Bombay in the Public Works Department passed a resolution reorganizing the Engineering Service.\n\nThis resolution contemplated the creation of two new Provincial Engineering Services to be designated as Bombay Engineering Service Class I and Bombay Engineering Service Class II.\n\nThe cadre strength of Class I Service was fixed initially at 36 while that of Class II Service was fixed at 80.\n\nClass I Service comprised the apex posts of Chief Engineer, Superintending Engineer and Executive Engineer, and the junior posts of Assistant Engineers.\n\nClass II Service consisted of Deputy Engineers only.\n\nOn September 21, 1939 the Government of Bombay passed a resolution adopting rules for regulating the methods of recruitment to the posts of Assistant Engineers and Executive Engineers in Class I Service and the posfs of Deputy Engineers in Class II Service. These rules were made by the Governor of Bombay in exercise of the powers conferred by s. 241 (2) (b) of the Government of India Act 1935 and were called : \"Recruitment Rules of the Bombay Service of Engineers (Class I and Class II).\" The rules appear at Item 53 is Section V of Appendix C to the Bombay Civil Services Classification and Recruitment Rules under the heading \"Bombay Service of Engineer's.\"\n\nRule 2 of the 1939 Rules laid down the method of recruitment to the Bombay Service of Engineers, Class I, by providing that such recruitment was to be made either (a) by nomination under the guarantee given to the College of Engineering, Poona, or (b) by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II.\n\nRule 3 provided that as regards the recruitment from source (a), such number of appointments as may be fixed by the Government from time. to time would be made from amongst the students of the College of Engineering, Poona, who had passed the examination for the Degree of B.E. (Civil) in First Class.\n\nThe candidates so• recruited by nomination were to be appointed in the first instance as Assistant Engineers on probation for two years and on completion of the probationary period, they Were to be confirmed as Assistant Engineers.\n\nRule 10 of the 1939 Rules prescribed the method of recruitment to the Bombay Service of Engineers Class II.\n\nIt provided that recruitment of Class II service shall be made either (a) by nomination under rule 11 under the guarantee given to the College of Engineering, Poona, or (b) by promotion from any of the three prescribed sources.\n\nThose sources were ( 1) the Bombay Subordinate Engineering Service, (2) Permanent or temporary Supervisors and (3) Temporary Engineers appointed on annual sanction.\n\nRule 11 provided that such number of appointments as may be fixed by the Government from time to time shall be made annually irom amongst the students of the College of Engineering, Poona, who have passed the examination for the Degree of B.E. (Civil).\n\nEry such candidate recruited by nomination was required by rule 14 to se~ intially as a \"candidate\" for one year on the expiry of which period he would be, appointed as a Deputy Engineer on probation for on:e year.\n\nOn the satisfactory completion of the probationary period, the candidate would be eligible for confirmation as a Deputy Engineer.\n\nA The guarantee envisaged by rules 2 (a) and 10 (a) of the 19 3 9 rules was given by the Government to the students of the College of Engineering, Poona, under a resolution dated July 12, 1940: The guarantee operated in different measures until it was finally withdrawn by a resolution dated May 27, 1947.\n\nThe. last batch of students who obtained the benefit of the guarantee were those that passed the examination for the Degree. of B.E. (Civil) in 1949.\n\nB By a resolution dated November 25, 1950 the Government 0£ Bombay appointed a Committee under the Chairmanship of Shri ~\n\nGurjar to examine the question of future recruitment to Engineering l Services, Classes I and II.\n\nThat Committee submitted iis recommendations to the Government after prolonged deliberations but since the implementation of the recommendations had to be deferred, c the Government started making appointments to both classes of services by direct recruitment through the Public Service Conunission.\n\nSuch appointments were made from the year 1950.\n\nAs stated earlier, the cadre strength of Class I and Class II Services was fixed initially at 36 and 80 permanent posts respectively.\n\nBut with the launching of new development projects, the strength of both cadres had to be expanded from time to time by addition to the permanent posts.\n\nD fact, for an early and effective achievement of the target it became necessary to make appointments of several temporary Executive Engineer's and Deputy Engineers.\n\nOn November 1, 1956 there were 360 temporary posts of Deputy Engineers as against 200 permanent posts.\n\nBy April 29, 1960 these numbers had risen respectively to 600 and 400.\n\nOne 01; the bones of contention between the parties is whether these temporary posts of Deputy Engineers were additions to Class II cadre,\n\nE even if temporary, or whether the temporary , posts were wholly -outside the cadre of Class II Service. It is necessary to mention al this stage that appointments as officiating Deputy Engineers to such temporary posts were made by promotion from amongst the members of the Bombay Subordinate Service of Engineers as also from amongst permanent and temporary Supervisors.\n\nBut no direct appointments were made by the Government to these temporary posts of officiating Deputy En-\n\nF gineers.\n\nThe direct appointments were made only to permanent posts because such appointees were promised confirmation after two years from the date of appointment, during which period they were expected to complete their probation.\n\nOn April 29, 1960 the Government of Bombay in the Public Works ' Department passed a resolution embodying rulen:if recruitment to G Bombay Service of Engineers Class I and Class II.\n\nTheee rules continued the existing division of Engineering Services into Class I { and Class II and they provided that appointments to both chsses of service should be made by nomination as well as by promo I ion. As regards appointments by nomination it was provided that th\"y should be made through competitive examination held by the Publk Service Commission and that for both the classes of service there should be a H common examination.\n\nCandidates recruited directly were to be confirmed after two years in their respective cadres, if otherwise 'ound fit.\n\nThe resolution of 1960 was signed by Under Secretary to the Government, \"By order and in the name of the Governor of Bombay.\"\n\nThe rules regarding recruitment to Class I and Class II Engi- A neering Service were set out in the Appendix to the 1960 Resolution.\n\nRule I of those rules provided that appointments to both classes of services shall be made either by nomination after a competitive examination held by the Public Service Commission or by promotion from amongst the members of the lower cadres concerned, provided however that. the ratio of appointments by nomination and promotion shall, as far as practicable, be 75: 25.\n\nBy rule 2, candidates appointed to B either of the services by nominatio~ were to be on probation for two years.\n\nThey were to serve, in the first instance, as Trainees for a period not exceeding one year and thereafter they were to be placed in a probationary capacity in charge of a sub-division for a period of not less than one year.\n\nOn the expiry of the aforesaid period of two years they were to be confirmed as Assistant Engineers in Class I or\n\nC . as Deputy Engineers in Class II, as the case may be, if favourably reported upon by their superiors.\n\nRule 2 further provided that Assistant Engineer would be confirmed as Executive Engineer after 9 years' service unless the period was extended by the Government.\n\nUnder rule 3, candidates securing higher places in the competitive examinations were to be appointed in Class I service according to the number o~ vacancies declared for such recruitmen~. in that cadre while candidates securing the next higher places were to be offered appoint- D ments to Class II service.\n\nRule 6 of the 1960 Rules reacl thus:\n\n\"6. (i) The number of posts to be filled in the Bombay Service of Engineers, Class I, by promotion of officers from the Bombay Service of Engineers Class II shall be about 25 per cent of the total number of superior posts, in the E Bombay Service of Engineers, Class I cadre.\n\nThis percentage should be aimed at for confirmations made after 1st November, 1956, subject of course, to Class II officers of the requisite fitnes~ Md length. of service being available.\n\n(ii) For absorption into Class I, a Class II officer must be in the permanent Bombay; Service of Engineers, Class II cadre, should have at least 15 years' service to his credit in Class II in temporary and permanent capacities, and should be holding an officiating divisional rank, at the time of such absorption.\n\nOn such absorption, thtj Class II officer shall be confirmed as an Executive Engineer.\n\n(iii) The seniority of the Class II promotees shall be fixed below the buncht of the Assistant Engineers, any one of whom is due for confirmation as Executive Engineer during the calendar year, provided that an Class II promotee shall be placed senior to a direct recruit to Class I Assistant E, ngineer who has been officiating as Executive Engineer from a date earlier than the class II promotee.\n\nIn the latter case, the Class II promotee though holding a post and lien as a confirmed ; Executive Engineer shall be\n\nA shown both under Permanent Executive Engineers and also along with the directly recruited Class I Assistant Engineers, with a suitable remark under the permanent Executive Engineers list.\n\nThis is also subject to further conditions as in paragraph 7 below.\"\n\nIn spite' of the provisions. contained in rules 2 and 6, sufficient num- B her of direct recruits to Class I service were not available, which caused the apprehension that for the next few years it may not be1 possible to fill 75 % o~ the superior posts from amongst direct recruits to Class I.\n\nIn orderj to meet this situation, it was provided by rule 7 that, as far as possible, promotion~ as officiating Executive Engineers shall be so made that the promotee under consideration from Class II has to his credit at least 6 years' longer service than a pro- C motee under consideration from Class I, subject, generally, to the condition' that a Class I officeII shall not hold a divisional rank at less than 4, and a Class II officer at Jess than 7 years' service. Clause (iii) of rule 7 emphasised that if any promotions were made from Class II to Class I service to the confirmed posts of Executive Engineers beyond the quota\\ available to Class II service personnel, there would have to be a consequent reduction in the promotion of Class II employees D to Class I appointments in the following years, in order, to work up the overall percentage of 75:25.\n\nClause (iv) of rule 7 provided that if any confirmation is made from the bunch of temporary Executive Engfueers who had no lien on any cadre, such confirmation shall be counted against the quota of 25 % which was meant for the non-direct recruits to Class I service.\n\nE Since the challenge to the vires of rule 8(iii) has oceupied the best\n\npart of the arguments and since the.High Court of Bombay a11d Guja- '°' rat have differed on that question it would be necessary to set out the whole of rulel 8.\n\n\"8. (i) The S.ub-Divisional post~ in the Department_ are at present manned by direet recruits to Bo.mbay Service of Engineers, Clas_s II cadre, Deputy Engmeers confirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruit.ed by the Bombay Public Service Commission, Officiating Deputy Engineers and similar other categories. . These various categories are being compiled into two lists only, viz.\n\nBombay Service of Engineers Class II cadre of permanent Deputy Engineers and a lisn of officiating Deputy Engineers.\n\nThe future recruitment to Bombay Service of Engineers, Class II cadre, shall bel made by nomination of candidates recruited direct by competitive examination, held by the Commission and by promotion frorn the list of officiating Deputy Engineers.\n\nThe number of such promotions shall be about one .third the number of direct recruits appointed in that year.\n\n(ii) All direct recruitmen~ of temporary Deputy Eng_ineers having been stopped, further\" officiating vacancies will be\n\nmanned from the ranks of the subordinate Service of Engineers.\n\nFor this purpose, a State ; wide Select Seniority list will be maintained of members of the Subordinate Service of Engineers cadre, considered fit to hold sub-divisional charges.\n\nThej list shall be compiled as on 30th June each year.\n\nFor inclusion in this list, a graduate shall have to his credit not less than 3, a Diploma holdec noli less than 8, and a non-qualified person not less than 13 years' service as Overseer.\n\nFor confirmation as a Deputy Engineer, the officer would be expected to have put in not less than 3 years' service as officiating Deputy Engineer. (iii). The probationers recruited directly to the Bombay Service of Engineers, Class II cadre in any year shall, in a bunch, be placed senior to promotees confirmed during that\n\nyear.\"\n\nThe Rules of 1960 were made by the Government of Bombay on April 29, 1960 and within two days thereafter, that is, on May 1, 1960 State of Bombay was bifurcated into the States of Maharashtra and Gujarat.\n\nWith a view to avoiding any administrative difficulty, the Government of Gujarat passed a reselution on May 1, 1960 providing that all rules, regulations, circulars, etc. prvailing in the former State of Bombay will continue to operate in the new State of Gujarat until changed or modified by that Government.\n\nThe Rules of 1960 were amended by thfl Government of Gujarat by a notification dated August 21, 1965 issued in the exercise of powers conferred by the proviso to art. 309 of the Constitution.\n\nBy that notification, the Government of Gujarat introduced a new clause, clause 10, in the Rules of 1960 providing that candidates selected through the competitive examination and appointed to posts in the Gujarat Service of Engineers, Qass I and Qass II, shall if so required, be liable to serve in any Defence Service or post connected with the defence of India, provided that such a candidate shall not be required to serve as aforesaid after the expiry of ten years from the date of his appointment or after attaining the age of 40 years.\n\nThe terms of this Gujarat amendment are not the subject of controversy but it became necessary to refer to the amendment since it is argued tha~ even if the Rules of 1960, being in the nature of executive instructions, did not have statutory force, those rules acquired a statutory character by being recognized and amended by the notification of August 21, 1965 which was issued under the proviso to art. 309 of the Constitution.\n\nOn the bifurcation of the State of Bombay, 181 permanent and 220 temporary posts of Deputy Engineers were allocated to the State of Gujarat In practice however, 99 permanent posts of Deputy Engineers were vacant in the State of Gujarat against which confirmation had to be made by that Government.\n\nSome o~ the Deputy Engineers who were promoted to those posts ftom lower ranks were also allocated to the State of Gujarat and several of them having,\n\ncompleted three years' qualifying service had become eligible for connrmation, under rule 8 (ii) of the 1960 Rules.\n\nBut they were denied confirmation in spite of their long service and in spite of the existence of . clear vacancies in subtantive posts of Deputy Engineers.\n\nSince the quantum of pension also depended in those days on the average substantive pay, the denial of confirmations to the promotoo Deputy Engineers led to great dissatisfaction amongst them.\n\nSome, who had officiated in those appointments for several years, had to retire without being confirmed.\n\nOn March 28, 1961 the Government of Gujarat passed an order provisionally confirming 3 7 officiating Deputy Engineers with effect from May 1, 1960.\n\nOn August ? 1968 it confirmed another batch of 26 officiating Deputy Engineers with retrospective effect from May 1, 1960 and directed that the order of provisional confirmation dated March 28, 1961 shall be treated as final.\n\nIn so. far as the Gujarat ape:aJs are concerned there are no further rules or resolutions to be considered.\n\nBut the Goverment of Maharashtra issued two resolutions after the bifurcation of the State of Bombay.\n\nOn July 29, 1963 it passed a resolution laying down principles of seniority and on December 19, 1970 it passed a resolution superseding the resolution passed by the Government of Bombay on April 29, 1960. Rule 33 of the 1970 rules provides :\n\n\"Seniority\n\n33.\n\nThere shall be two parts of the seniority list in each cadre in Oass I and Class II viz.\n\nPart A of confirmed ollicers and Part B of those who are not confirmed.\n\n(a) In Part A the names shall be arranged with reference to the year of confirmation.\n\n(b) The confirmed officers sl).all be treated as senior to the unconfirmed Officers in the respective cadre.\n\n( c) In Part B of the seniority list of any cadre, the names shall be arranged with reference to the date of continuous officiation except where a promotion in an officiating capacity was by way of purely temporary or local arrangement.\" In Gu.iarat, there are no r\"\"olutions corresponding to those of 1963 and 1970 issued by the Maharashtra Government.\n\nCivil Appeal No. 1113 of 197 4 by the promotees arises out of the judgment dated January 17, 1974 o~ the Bombay High Court dismissing Special Civil Application No. 815 of 1972 filed by them against the State and the direct recruit.,, Four Special Civil Applications were filed in the Gujarat High Court which were disposed of by it by a common judgment dated July 14, 1973. S. C. As. Nos. 1099 of 1969, 422 of 1970 and 957 of 1970 were filed by the d.irect recruits while S.C.A. No. 1480 of 1971 was filed by the promotees. The promotees failed in the Bombay High Court but succeeded in the Guiarat mgh Court. Both the Hi!ili Courts have granted certificates of fitness for filing appeals in this Court.\n\nBefore us, Mr. K. K. Singhvi and. Mr. R. K. Garg appeared for the promotees while M~. :, M. V. Paranjpe and Mr. M. K. Ramamurti appeared for the direct recruits.\n\nMr. M. C. Bhandare appeared fov the State of Maharashtra and Mr. D. V. Patel for the State of Gujarat.\n\nMr. Patel took a non-contentious attitude, which highlights how difficult it was for the State counsel to support any particular cause in view 0£ the shifting stand taken up by both the State Governments from time to time.\n\nSeveral points were raised before us and a large number of decisions were cited in support thereof, but the main question for decision in these appeals is whether departmental promotees and direct recruits appointed as Deputy Engineers in the Engineering Services of the Governments of Maharashtra and Gujarat belong to the same class so that they must be treated with an even hand or whether they belong to different classes or categories and can jnstifiably be treated unequally.\n\nConcededly, they are being treated unequally in the matter of seniority because whereas, promotees rank for seniority from the date of their confirmation the geniority of direct recruits is reckoned from the date of their initial appointment. The disparity is indeed so glaring that though direct recruits have to successfully complete a two years' probationary period before confirmation, even that period is not excluded while counting their seniority.\n\nA promotee ranks below the direct recruit even if he has officiated continuously as a, Deputy Engineer for years before the appointment of the direct recruit is made and even if he, the promotee, could have been confirmed in an available substantivej vacancy before the appointment of the direct recruit.\n\nLearned counsel for t11e direct recruits have stoutly defended the preferential treatment accorded to them by contending, inter alia, that since the promotees do not belong to Class II service until they are confirmed, they have no right to rank for seniority along with the direct recruits who enter that class or cadre on the very date of their initial appointment.\n\nThe fact that the Government did not confirm a particular promotee even though a substantive vacancy was available in which he could have been confirmed cannot, according to the direct recruits, make any difference to that position.\n\nFor facilitating a proper understanding of this problem it is neces- sary to take a bird's eye-view of the various rules and resolutions which were passed by the two State Governments, most of which we have already noticed. In this behalf, aitention has to be called particularly to : (I) The rules framed by the Governmen~ of Bombay on September' 21, 1939 under s. 241(2l(b) of the Government of India Act, 1935; (2) The rules framed by the Government of Bombay on November 21, 1941 regarding fixation of seniority; (3) The letter dated January II, 1949 written by the Chief Secratary, Government of Bombay, to the Honorarv Secretary. Bombay Civil Service Association:.( 4) The Resolution of the Government of Bombay dated April 29, 1960 containing Rules regardin~ recruitment of Class I and Class U Engineering Services and regarding fixation of seniority; ( 5) The\n\nI!'\n\nResolution of the Government of Maharashtra dated July 29, 1963 laying down principles of seniority; ( 6) The Notification dated August 21, 1965 issued by the Government of Gujarat under the proviso to art. 309 of the Constitution, introducing clause 10 in the Rules of 1960; (7) The Resolution of the Government of Maharashtra dated December 19, 1970 superseding the Resolution of April 29, 1950 and .frwning new rules of seniority; and ( 8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain, number of temporary posts into permanent posts from time to time.\n\nIt is common ground that except the Bombay Rules dated September 21, 1939 and thei Gujarat Notification dated August 21, 1965 the rest of the rules are in the nature of executive instructions.\n\nThe Rules of 1941, 1960, 1963, 1965 aml 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power.\n\nThe Rules of 1960 and 1970 were issued \"By order and in the name of the Gove mer,\" but that does not lend suppart to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have beeu made under art 309 of the Constitution.\n\nAll executive action of thd Government ot a State is required by art. 166 of the Constitution to be taken in the name of the Governor.\n\nThe appeals have therefore to be disposed of on the basis that except for the Bombay rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the remaining rules, whether of recruitment or of seniority, are in the nature of executive! instructions.\n\nThese instructions, unlike rules [egulatingl recruitment and conditions of servicfl framed under the proviso to art. 309 of the Constitution or s. 241 (2)(b) of the Government o~ India Act, 1936, cannot have an~ retrospective effect.\n\nThe 1939 rules called \"Recruitment Rules of the Bombay Service of Engineers (Class I and Class II)\" have constitutional authority but being rules made \"to regulate the methods of recruitment\", they afford no assistance in finding a solution to the rival. claims to seniority laid by the promotees and direct recruits.\n\nThe rules neither fix a quota fon recruitment from the two avenues nor do they provide, in any other manner, a guideline for fixation of seniority as between appointees recruited from different sources.\n\nRule 10 011 which the promotees rely as affording to them a guarantee in the matter of promotion is also beside the point because the crux of their grievance is not that they are denied opportunities of promotion but that they are discriminated against in the matter of seniority in comparison with the direct recruits.\n\nBy its resolution dated November 21, 1941 the Government ot Bombay, Political and services Department, directed that in the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of appointment on probation while in the case of officers promoted to \"substantive vacancies\", the seniority should be determined with reference to the date of their promotion to the substantive vacancies, provided there has been no break in their service prior to their confirmation in those vacancies.\n\nThis Resolution expressly\n\ngove:ne:d the eniority of direct recruits and promoted officers in all A p:ovmc1al services. except the Bombay Service of Engineers, Class I.\n\nSmee Deputy Engmeers do not belong to Class I Service their seniority was governed by the Resolution.\n\nThe wording ot' the Resolul!on leaves no doubt that the Government of Bombay applied two different standards for fixing inter se seniority of direct recruits and promotees appointed as Deputy Engineers.\n\nThe former were entitled to reckon their seniority with effect from the date of their initial ap- B pointment on probation while the seniority of the latte~ had to be\n\ndetermined with reference to tbe date of their promotion to substantive vacancies, subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies.\n\nThus, for purposes of seniority, the promotees had to depend firstly on the availability of substantive vacancies and secondly on the arbitrary\n\ndiscretion of the Government to confirm or not to confirm them in C those vacancies.\n\nThe fact that a substantive vacancy had arisen and was available did not, proprio vigore, confer any right on the promotee to be confirn1ed in that vacancy.\n\nThe 1941 Rules contained the real genn of discrimination be.:ause the promotees had tq depend upon the unguided pleasure of the Government for orders of confirmation.\n\nIn the pre-Constitution era, such hostile treatment had to he suffered silently as a necessary incident of government service.\n\nIt is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determinin~ the seniority of direct recruits and promoted office~ in the provmcial: Services except the Class I Bombay Service of Engineers, Shri L. M.\n\nAjgaonkar, Deputy Secretary to the Government of Maharashtra says in his affidavit dated July 25, 1973 that in practice the Rules ell E 1941 were never applied to Class II officers in the Engineering Service and that iheir seniority used to be determined by the same rules by which the seniority of Class I officers was determined. It is difficult to accept this bare statement which is not even supported by a proper verification.\n\nShri Ajgaonkar's affidavit contains an omnibus and rolled-up clause of verification at the end, which detracts from the weight of his assertion.\n\nTurning next to the leuer dated January 11, 1949 written by the Chief Secretary, Government of Bombay, to the Honorary Secratary, Bombay Civil Service Association, we find it difficult to uphold the claim ot the _promotees that the Rules of 1941 were modified by thati leUer.\n\nThe letter was written in answer to the representa!lon dated July 28, 1948 made by the Bombay Civil Service Association to the Government of Bombay regarding emergency recruitment to the Indian Administrative service and \"other matters\".\n\nParagraph 2 of the letter says that promotees can have no grievance in the matter of seniority since the seniority of a direct recrnit to the cadre of \"Deputy Collectors\" vis-a-vis a promoted officer is determined not acc0rding to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e. with reference to the date of first appointment on probation in the case of direct recruits and of continious qffi.ciation in the case of promoted officers. In the first place,\n\nthis part of the letter on which the promotiees rely deals expressly and exclusively with the case of Deputy Collectors which makes it difficult, without any further data, to extend the benefit of what is said therein to Deputy Engineers, working in an entirely 'diffet1Qnt branch of government service: The Chief Secretary's letter is a reply to the Association's letter which the promotees did not produce. The Association had addressed its letter not to the Ministry which handled problems of Engineering Services but to the Ministry of Home and Revenue, the latter of which was concerned to consider the grievance of Deputy Collectors.\n\nLastly the opening sentence of paragraph 2 of the Chief Secretary's reply shows that he was referring to a class of service in which a quota system was then operating. Admittedly, the quota system properly so-called, did not apply either under the 1939 or under the 1941 rules to Engineering Services.\n\nThe Chief Secretary's reply cannot, therefore improve the promotees' case.\n\nBut we disapprove that in-stead of explaining the circumstances in which the reply was sent, the State Gowrnment should merely say through Shri Ajgaonkar's affidavit that it craves \"leave to refer\" to the reply for its \"true effect\".\n\nThe Government could surely have produced the letter of the Associationi which would have set this part of the controversy at rest.\n\nD That takes us to the 1960 Rules which are tha meat of the matter.\n\nWe have already extracted rules q and 8 fully but it will be necessary to recapitulate briefly the scheme of the 1960 rules.\n\nUnder these rules, the ratio of appointment by nomination and promotion of both Oass I and Class II Engineering Services was fixed, as far as practicable, at 75 : 25.\n\nCandidates appointed by nomination, i.e. direct E recruits, were to be on probation for two years out of which, normally, one year was to be spent on training.\n\nOn satisfactory completion of probation, thct direct recruits were to be confirmed as Assistant Engineers in Class I or as Deputy Engineers in Class II, as the case may be. For absorption in Class I, a Class II officer had to be in the permanent Bombay Service of Engineers, Class II cadre.\n\nHe was further required to have at least 15 years' service to his credit in Class II in F temporary and permanent capacities.\n\nIn addition to these qualifications, he had to be holding, at the time of his, absorption in Class I, an officiating divisional rank.\n\nOn such absorption the Class II officer was to be confirmed as an Executive Engineer.\n\nThe Rules of 1960 show that the seniority of Class II promotees was to be fixed below the bunch of Assistant Engineers, any one of whom was due for confirmation as an Executive Engineer during the calendar year.\n\nG But no Class II promotee could be placed above a direct recruit recruited to Class I, who was officiating as Executive Engineer from a date earlien than the Class II promotee,\n\nRule S ( 1) says that the various categories which manned the Class II sub-divisional posts were being compiled into two lists : (i}\n\nOne list of Bombay Service of Engineer~ Class II cadre of permanent Deputy Engineers and (ii) the other list of officiating Deputy Engineers.\n\nThe future recruitment to Class II cadr~ was to be made by\n\n(a) nomination of candidates recruited directly by competitivei examination nnd (b) promotion from the list of officiating Deputy Engineers,\n\n1u the ratio of 2/3rd and 1/3rd respectively.\n\nAfter reciting that direct recruitment of temporary Deputy Engineers was stopped, rule 8(ii) provides that turther officiating vacancies would be manned from the ranks of the Subordinate Service ofl Engineers.\n\nFor this purpose a statewise Select Seniority List was to be maintained of members to the Subordinate Service of Engineers, considered fit to hold subdivisional charge.\n\nFor inclusion in this list graduates, diploma holders and non-qualified persons had to have to their credit service ot not less than 3, 8 and 13 years respectively.\n\nFor confirmation as a Deputy Engineer the officer was expected to have put in not less than three years' service as officiating Deputy Engineer. Then comes the much-debated clause (iii) of rule 8 :\n\n\"(iii) The probationers recruited directly to the Bombay Service of Engineers, Class II cadre! in any year shall, in a bunch, be placed senior to promotees confirmed during that year.\"\n\nIt is patent that this clause is highly discriminatory against promotees and accords a preferential treatment to direct recruits.\n\nIts principal justification is said to be that persons who are promoted as officiating Deputy Engineers do not belong to Class II cadre so long as they are not confirmed as Deputy Engineers, whereas direct recruits appointed on probation as Deputy Engineers enter that class or cadre on the very date of their appointment since, on satisfactory completion of probation, confirmation is guaranteed to them. This contention needs\n\ncareful! examination.\n\nThere is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both.\n\nThat is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a cadre arises.\n\nFor example, in Bishan Sarup Gupta\n\nv. Union of India(') the cadre of Income Tax officers Class I, Grade\n\nII was held by this Court to consist of both permanent and temporary posts.\n\nSimilarly, in A. K.\n\nSubraman v. Union of India, (\") while holding that the cadre of Executive Engineers in Class I Central Engineering Service consisted both of permanent and temporary posts, it was pointed out by this Court that a cadre may consist of permanent posts only or \"sometimes, as is quite common these days, also of temporary posts\". Counsel for direct recruits relied uponJ a decision of this Court in Ganga Ram & Others v. Union of India(') for showing that a cadre cannot consist of temporary posts but that decision rested on the finding, arising out of the rules contained in the Indian Railway Establishment Manual, that direct recruits and promotees constitute different classes.\n\nThe question which we have to consider at this stage is not whether direct recruits and. promotees appointed as Deputy Engineers in the Bombay and Gujarat Service of Engineers belong to different classes but whether officiatin)l Deputy Engineers belong to class II cadre at all.\n\n----~---·---\n\n\nOn the state of the record in the Bombay and Gnjarat appeals, such as' it is, we find it difficult to hold that officiating Deputy Engineers do not belong to Class II cadre of the Bombay and Gujarat Service of Engineers.\n\nIn the Maharashtra writ petition, 815 of 1972, at many as four affidavits were filed on behalf of the State Government by Shri L. M. Ajgaonkar.\n\nThese are dated July 25, December 17, December 21, 1973 and January 17, 1974.\n\nThe question whether officiating Deputy Engineers belong to Class II cadre was of the essence of the dispute in the High Court and was squarely raised by the promotees.\n\nYet, in none of the affidavits did the State Government say that they did not belong to Class II cadre.\n\nThe last affidavit dated January 17, 1974 was filed after the High Court had dictated its judgment in open Court for three days, and even then the affidavit is signilicantly silent on the question.\n\nThe only explanation of this can be that according to the State Government, officiating Deputy Engineers belong to Class II cadre.\n\nThe resoluticn dated November 8, 1%2 issued by the Government of Maharashtra.\n\nBuildings and: Communications Department, shows unmistakably that even temporary posts of Qeputy Engineers were treated as temporary additions to Class II cadre.\n\nAn additional Division with four subdivisions was sanctioned by that resolution for construction of a section of National Highway No. 8. Tempor.ary posts had therefore to be created for that project for a period of one year. : The resolution says that \"The posts of Executive Engineers and Deputy Engineers should be treated as temporary additions to their respective cadres.\"\n\nIn so far as the Gujarat appeals are concerned, Shri N. S. Nagram, Under Secretary to the Government of Gujarat, P.W.D., filed an affidavit <lated April 28, 1970 in one of the writ petitions, 422 of 1970.\n\nHe says in that affidavit that \"temporary posts are to be treated as temporary additions to the respective cadres of B.S.E.\n\nClass I and Class II\", that \"permanent posts are not created anew but come into existence by the conversion of the existing temporary posts into permanent posts\" and that \"both the temporary posts and permanent posts are two categories of posts belonging to the same cadre\".\n\nTo the similar effect is the affidavit dated June 22, 1970 made in another writ petition, 1099 of 1969, by Shri A. R. Bhatt, Under Secretary to the Government of Gujarat-; P.W.D.\n\nHe says therein that \"there are no separate categories of permanent and temporary posts of Deputy Engineers.\n\nTemporary post of Deputy Engineers are treated as temporary additions to the G .S.E. Class II cadre.\" Pleading on beba!f of the Gujarat Government, Shri Bhatt stoutly resisted the claim of direct recruits that they had prior claim for consideration for promotion to the posts of Executive Engineers on the ground that they pelong to the Class II cadre while the officiating Deputy Engineers do not.\n\nWe caunot ignore these sworn assertions made solemnly by officers of the Maharashtra and Guiarat Governments.\n\nThe fact that the permanent strength of the cadre was determined on the basis 0£ permanent posts at any given time, as for example when thel Bombay\n\nQ_gvemment passed resolutions on March 22, 1937 and April 13, 1945 cannot detract from the position that even temporary posts al Deputy Engineers were treated as additions, though temporary, to Class II cadre.\n\nThe government officers who swore the affidavits knew of t!Jese resolutions and yet they were instructed to state, a position which they contended for more then once, that officiating Deputy Engineers belonged to Class II cadre.\n\nThe learned counsel for the direct recruits laid great emphasis on the lists referred to in clauses ( i) and (ii) of rule 8 for showing that officiating Deputy Engineers do not belong to Class II cadre ol' Engineering Service. llis contention has to be rejected since the point is concluded by a decision of this Court in P. Y. Joshi v. State of Maharashtra.(') It was contended in that case on behalf of direct recruits that officiating Deputy Engineers could only he considered as promoted to the grade of Deputy Engineers on conlirmation and therefore the 7 years' qualifying service which they had to put in before being promoted as officiating Executive Engineers must b\" reckoned from the date of their confirmation as Deputy Engineers. in support of this contention reliance was placed in that case on clanse (ii) of rule 8 and it was argued that no person could be \"promoted\" as a Deputy Engineer unless he was first put in the list of officiating Deputy Engineers.\n\nThis argument was squarely dealt with and repelled by this Court by holding that the list referred to in clausei (ii) of rule 8 is the same list which is referred to in the latter part of clause (i) of that rule 'Which speaks of \"future recruitment''.\n\nConsequently, a promoted officiating Deputy Engineer, who belonged to Class II cadre, was held entitled to be considered for promotion under rule 7 to the post of officiating Executive Engineer if he had put in 7 years' qualifying service.\n\nThe eligiblity for promotion did not require that the officiating Deputy Engineer must have put in 7 years' service after the date of bis confirmation.\n\nIt must necessarily follow that \"promotion\" which the latter part of rule 8(i) relating to future recruitment speaks of means prom6tioll\n\nas an officiating Deputy Engineer from the Select List prepared under clause (ii) oE rule 8.\n\nA person thus promoted from thei Select List as an officiating Deputy Engineer is as full and complefe a member of the Class II cadre as a person directly appointed as a Deputy Engineer.\n\nIn this view of the matter, the prescription contruned in the closing sentence of rule 8 (i) that \"the number of such promotions shall be about 1/3rd the number of direct recruits appointed in that\n\nyear\" would apply to initial aPPointments and cannot govern the confirmation of those who have already been appointed to Class II cadre.\n\nIn other words, direct recruits and promotees have to be appointed in the proportion of 75 : 25 to Class n cadre, the former as Deputy Engineers and the latter as officiating Deputy Engineers, but once that is done, the quota rule would cease to apply with the result that confirmations in the posts of Deputy Engineers are not required to be made in the proportion in which the initial appointments had\n\n(I) [1970] 2 S.C.R .. 615\n\nto be made. Thus rule 8(i) only requires that for every three direct recruits appointed as Deputy Engineers only one promotee can be appointed as officiating Deputy Engineer.\n\nThe rule cannot be construed to mean that for every three confirmations of Deputy Engineers, not more than one promotee can be confirmed as Deputy Engineer. In A. K. Subraman (supra) it was held by this Court, while interpreting rules relating to Central Engineering Service Class I, that though in cases where recruitment is made from different sources the quota system can be validly applied, the quota rule was to be enforced at the time of initial recruitment to the posts of officiating Executive Engineers and not at the time of their confirmation. The Court further observed that there was a well recognised di'stinction between promotion and confirmation and that the tests to be applied for the purposes of promotion are entirely different from those that had to be applied at the time of confirmation.\n\nIf officiating Deputy Engineers belong to Class II cadre a:s much as direct recruits do and if the quata system cannot operate upon their respective confirmation in. that cadre, is there any valid basis for applying different standards to the members of the two groups for determining their seniority ? Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experil!nce in their respective assignments. Aud yet clause (iii) of rule 8 provides that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year. The plain arithmetic of this formula is that a direct recruit appointed on probation say in 1966, is to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer,. say in 1956, but was confirmed in 1966 after continuous officiation till then. This formula gives to the direct recruit even the benefit of his one year's period of training and another year's period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience. If there was some intelligible ground for this differentiation bearing nexus with efficiency in pu, blic services, it might perhaps have been possible to sustain such a classification. It i's interesting that time and again the State Governments themselves found it difficult to justify the hostile treatment accorded to the promotees.\n\nIn various affidavits filed on their behalf, entirely contradictory contentions were taken, sometimes in favour of the promotees and sometimes in favour of direct recruits.\n\nInstead of adopting an intelligible differentia, rule 8(iii) leaves seniority to be determined on the sole touchstone of confirmation which seems to us indefensible. Confirmation is one of the inglorious uncertainities of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies.\n\nA glaring instance widely known in a part of our country is of a distinguished member of the judiciary who wa~ confirmed as a Districb Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though sulistantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.\n\nThere is no substance in the plea that direct recruits must be given weightage on the ground that the engineering services require the infusron of new blood since it is a highly specialised service. Were it so, the Government would not have itself reduced the proportionaL representation gradually so as to tilt the scales in favour of promotecs.\n\nBesides, the plea that engineering service is a specialised service is made not by the Government but by direct recruits who, obviously, are interested in so contending. Nor indeed is the apprehension justified that the higher echelons of engineering services will in course of time be manned predominantly by promotees.\n\nThose recruited directly as Assistant Engineers in Class I can, under the rules, officiate as Executive Engineers after 4 year~' service and are eligible for confirmation as Executive Engineers after a total service of 9 years. Promotees can hardly ever match with that class in terms of seniority.\n\nLearned counsel for direct recruits relied on the decision of this Court in B. S. Gupta v. Union at India(') where it was observed that when recruitment is made from several sources, it may be necessary in the public interest to depart from the normal rulei of seniority and to provide that dates otber than the dates of appointment will determine\n\ninter se seniority of officers.\n\nThese observations have to be understood in the context which the Court itself clarified by saying that the D problem before it was not of discrimination in the matter of promotion from an integrated service constituted from two sources but the problem was of integrating two sources in one service by adjusting inter se seniority (p. 115). Besides, the rule of seniority prescribed in that case was not shown to suffer from the infirmity from which rule 8(iii). suffers.\n\nReliance was also placed by the direct recruits on another decision of this Court in V. B. Badami v. State of Mysore,(') in which it was held that in cases where rules prescribe a quota between direct recruits and promotees, confirmations for substantive appointments can only be made in clear vacancies occurring in the, permanent strength of the cadre and that confirmed persons have to be treated as senior to those\n\nwho are officiating. This decision is distinguishable because it is based F on the consideration that rule 9 of the Probation Rules of 1957 provided for confirmation of a probationer as a full member of the service in any substantive vacancy in the permanent cadre and that rule established the exclusion of temporary posts from the cadre (p. 822).\n\nSince the cadre consisted of permanent posts only, confirmation in permanent posts necessarily deteranined the inter se seniority of officers.\n\nRule 8(ii) in the instant case adopts the seniority-cum-merit test for preparing the statewise Select List of seniority.\n\nAnd yet clause\n\n(iii) rejects the test of merit altogether.\n\nThe vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation. That, under Arts. 14 and 16 of the Constitution, is impermissible and therefore we must strike down rule 8(iii) as being unconstitntional.\n\n\n(2) [1976] l S.C.R. 815\n\nOn July 29, 1963 the Government of Maharashtra in its General Administration Department passed a rei; olution superseding the rules of November 21, 1941 and framing new rules for determining the inter se seniority of direct recruits and promotees.\n\nParagraph A of the 1963 resolution provides that the seniority of direct recruits and promoted officers should be determined according to the date of appointment' on probation in the case of direct recruits. and according to the date of promotion to officiate continuously in the case of those appointed by promotion, irrespective of whether the appointments are made in temporary or in permanent vacancies.\n\nParagraph B of the resolution says that a list of services in respect of which special orders for fixation of seniority are in force and to which the resolution will not apply would be issued in due course.\n\nIt is contended on behalf of the Maharashtra promotees that the rules of 1963 superseded , the 1960 rules by necessary implication and therefore the State Government had no power or authority to apply the criterion of seniority fixed under the 1960 rules after their repeal by the 1963 rules. This contention has not only the merit of plausibility but is apparently supported by an observation in P. Y. Joshi\n\n(supra) case. We are however satisfied that the Bombay High Court was right in rejecting the contention.\n\nThe quota system was the very essence of 1960 rules and if it was desired to abrogate that system it is unlikely that the 1963 rules will not even refer to those of 1960.\n\nThe rule5 of 1941 having been expressly superseded by the 1963 rules, it is difficult to accept that along with the 1941 rules the resolution of 1963 would not have referred to the 1960 rules also. Secondly, the resolution dated December 19, 1970 of the Government of Maharashtra expressly superseded the 1960 rules which shows that the latter were in force until 1970 and were not superseded by the 1963 rules.\n\nIn fact, the resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter was not applicable to engineering services. It is true that in P. Y. Joshi's case (supra) it was observed that the 1963 rules repealed those of 1960 but that is a mere passing observation.\n\nThe question in regard to such repeal did not arise for decision in that case and it appears that no argument whatsoever was addressed to the Court on this question. None of the considerations mentioned by us were placed before the Court in that case.\n\nWe therefore agree with the Hip; h Court that the 1960 rules were not superseded by those of 1963. We have already indicated that in Gujarat there is no resolution corresponding to that of 1963.\n\nIn the Gujarat writ petitions it was argued that the 1960 rules, though originally in the nature of executive instructions, acquired a statutorv force and character by reason of their amendment by the rules of 1965 which were made by the Governor of Guiarat in exercise of the power under the proviso to Art. 309 of the Constitution. This anmment\n\nwas rightly reiected by the HiJ?h Court because all that was done by the rules of 1965 was to introduce a new rule, rule 10, in the l\\lbU rules. The rules of 1960 were neither reiterated nor re-enacted by the rules of 1965; and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule-making authority had applied its mind to be rules of 1960 with a view to\n\ns. B. PATWARDHAN v. MAHARASHTRA (Chdi1dracl111d, J.) 799\n\nadopting them. In Bachan Singh v. Union of India('), on which the direct recruits rely, the amendment made vital changes in the main fabric of the original rules which led this Court to the conclusion that the original rules became statutory rules by incorporation. This question is not relevant in the Maharashtra appeal since there are no rules m Maharashtra corresponding to those of 1965 in Gujarat.\n\nThe challenge to rule 33 of the rules dated December 19, l\\UU framed by the Government of Maharashtra is based on grounds 'dentical\n\nwith those on which the validity of rule S(iii) of the 1960 rules was assailed. The rules of 1970, which supersede the rules of 1960, were framed in order (i} to alter the ratio between direct recruits and promotees which was \"causing hardship\" to promotees; (ii) to correct the manifest error resulting from the fact that \"A large number of temporarily promoted officers both in Class I and Class II could no; be confirmed in spite of permanent vacancies being available\"; and (iii) to ensure the efficiency of the engineering services as a whole.\n\nRule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be. Those who do not have such a lien and who may be officiating in any one of the cadres at Class l or Class II will be treated as temporary members of their respective cadres.\n\nRules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class IL By rule 11, such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres. Rules 12 to 23 deal with appointments by promotion to Class II service. Rule 12(a) as amended by the Government reso:ution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against purmanent posts of Deputy Engineers (iii} all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv)\n\nthdse who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 19oU of Overseers fit to be Deputy Engineers.\n\nRule 12(c) fixes the ratio between direct recruits and promo tees at 34 : 66 instead of 7 5 : 25 as under the 1960 rules. Rule 33 called \"Seniority'', which we have extracted already, provides that there shall be two parts of the seniority list in each cadre in Class I and Class II, part A of confirmed officers and part B of those who are not confirmed. In part A the names are to be arranged with reference to the year of confirmation. Confirmed officers are to be treated as senior to the unconfirmed ofiicers in the respective cadres. In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an officiating capacity is by way of a purely temporary or local arrangement.\n\n(I) A.l.R. (1973] S.C. 441\n\nR1;1le 33, in so far as it mkes seniority dependent upon the fortmlou~ ClfCUmstance of confirmat10n, is open to the same objection as rule 8(m) of the 1960 rules and must be struck down for identical reasons.\n\nThe circulars dated January 12, 1961, March 15, 1963 and October 18, 1969 which the promotees want to be enforced are issued by the Fmance Department and being in the nature of inter-departmen'.al communications, they cannot confer any right on the promotees.\n\nThe Bombay High Court was therefore right in not acceptmg this part of the promotees' case.\n\nWe also agree with the view taken by the High Comts of Bombay and Gujarat, for the reasons mentioned by them, that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act, 11 of 1960. The l?roviso to s. 81 (6) of that Act says that the conditions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Central Government.\n\nNeithe1 the rules of 1960 and much Jess the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage withm the meaning of the proviso.\n\nD We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy all conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally so vulnerab:e that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights. In this process, courts, high and low, had to discharge functions which are best left to the expertise of the appropriate departments of the Government. Having struck down certain rules, we do not want to take upon ourselves the task of framing rules of seniority.\n\nThat is not the function of this Court and frankly ii lacks the expertise and the data to do so. We howe;1er hope that the Government will bear in mind the basic principle. that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees.\n\nAll other factors being equal, continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities.\n\nSaying anything beyond this will be trespassing on a liela which does not belong to the courts.\n\nWe would like to clarify that the list of seniority, for the period till November 1, 1956, prepared by the Maharashtra Government by tts resolution dated April 10, 1970 has been approved by the Government of India. That iist would therefore govern the seniority of direct recruits and promotees as on November 1, 1956.\n\nSecondly, it seems to us difficult to uphold the direction given by the Gujarat High Court that interim promotions made during the pendency of writ petitions should not be disturbed until the expiration of one month from the date of the seniority as finally fixed by the Government and intimated to the concerned parties.\n\nInterim promotions which do not comply with the constitutional requirements and which under the judgment of the Gujarat High Court are bad cannot be permitied to stand. We accordingly set aside that direction.\n\nThese then are our reasons in cupport of the order which we paS<Sed <lll January 31, 1977. That order reads thus :\n\n\"Civil Appeal No. 1113 of 1974 is filed by the promotees and it arises out of special Civil Application No. 815 of 197Z filed by them in the Bombay High Court. We set aside the judgment of the High Court and allow the appeal.\n\nCivil Appeal No. 286 of 1974 is filed by direct recruits and it arises out of Special Civil Application No. 1099 of 1969 filed by them in the High Court of Gujarat. We confirm the judgment of the High Court and dismiss the appeal.\n\nCivil Appeal No. 287 of 1974 is filed by direct recruits and it arises out of Special Civil Application No. 422 of 197U filed by them in the High Court of Gujarat. We confirm the judgment of the High Court and dismiss the appeal.\n\nCivil Appeal No. 242 of 1974 and Civil Appeal No. 285 of 1974' 'are cross aJ?peals.\n\nBoth of these, appeals arise out of Special Civil Appbcation No. 1418 of 1971 which was filed by the promotees in the High Court of Gujarat. Civil Appeal No. 242 of 1974 is filed by the promotees in this Court challenging the decision of the Gujarat High Court to the extent to which they failed.\n\nCivil Appeal No. 285 of 1974 is filed by the direct recruits challenging the aforesaid decision to the extent to which the High Court allowed the reliefs claimed by the promotees.\n\nWe allow Civil Appeal No. 242 of 1974 partly and dismiss Civil Appeal No. 285 of 1974.\n\nThe reasons in support of the conclusions to which we have come in these appeals will be given later.\n\nThe extent to which the appeals are allowed or dismissed will become clear frnm those reasons.\n\nThere will be no order as to costs in any of the appeals.\"\n\nP.ll.R.\n\n707SCI /77-2500-1-12-77-GIPF.", "total_entities": 158, "entities": [{"text": "S. B. PATWARDHAN & OTHERS ETC. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "S. B. PATWARDHAN & OTHERS ETC. ETC", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & OTHERS", "label": "RESPONDENT", "start_char": 37, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & OTHERS", "offset_not_found": false}}, {"text": "May 4, 1977", "label": "DATE", "start_char": 68, "end_char": 79, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA & OTHERS\n\nMay 4, 1977\n\n[Y.V. ClfANDRACHUD, P.K. GOSWAMI AND fl."}}, {"text": "P.K. GOSWAMI", "label": "JUDGE", "start_char": 101, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "fl. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 118, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 241", "label": "PROVISION", "start_char": 534, "end_char": 540, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 556, "end_char": 585, "source": "regex", "metadata": {}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 1161, "end_char": 1181, "source": "ner", "metadata": {"in_sentence": "In 1941 the Government of Bombay passed a resolution directing that in the case of direct recruits appointed substantively on probation, seniority should be determined with reference to the date of appointment on probation, while in the case of officers promoted to substantive vacancies, seniority should be determined with reference to the date of their promotion to the substantive vacan cies provided there had been no break in their service prior to their confirmation in these _vacancies."}}, {"text": "Bombay Civil Service Association", "label": "ORG", "start_char": 1742, "end_char": 1774, "source": "ner", "metadata": {"in_sentence": "In 1949 the Chief Secretary to the Government of Bombay in reply to a representation made by the Bombay Civil Service Association regarding emergency recruitment to the I.A.S. and \"other matters\" stated that promotees could have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collector vis a vls a promoted officer \\Vas determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e., with reference to the date of first appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers."}}, {"text": "I.A.S.", "label": "ORG", "start_char": 1814, "end_char": 1820, "source": "ner", "metadata": {"in_sentence": "In 1949 the Chief Secretary to the Government of Bombay in reply to a representation made by the Bombay Civil Service Association regarding emergency recruitment to the I.A.S. and \"other matters\" stated that promotees could have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collector vis a vls a promoted officer \\Vas determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941, i.e., with reference to the date of first appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers."}}, {"text": "Bombay Service of Engineers", "label": "ORG", "start_char": 2367, "end_char": 2394, "source": "ner", "metadata": {"in_sentence": "In April 1960, a resolution embodying the rules of recruitment to Bombay Service of Engineers CJass I and Class II was passed by the Government and signed by the Under Secretary to the Government \"by order and in the name of the Governor of Bombay\"."}}, {"text": "Bombay", "label": "GPE", "start_char": 2542, "end_char": 2548, "source": "ner", "metadata": {"in_sentence": "In April 1960, a resolution embodying the rules of recruitment to Bombay Service of Engineers CJass I and Class II was passed by the Government and signed by the Under Secretary to the Government \"by order and in the name of the Governor of Bombay\"."}}, {"text": "State Public Service Commission", "label": "ORG", "start_char": 2644, "end_char": 2675, "source": "ner", "metadata": {"in_sentence": "They provided for direct recruitment through common competitive examination conducted by the State Public Service Commission for both classes of service as well as by promotion."}}, {"text": "July 29, 1963", "label": "DATE", "start_char": 4241, "end_char": 4254, "source": "ner", "metadata": {"in_sentence": "On July 29, 1963 the Government of Maharashtra passed a resolution superseding the 1941 rules and framing new rules for determining int.r se seniority of direct recruits and p, romotees."}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 4259, "end_char": 4284, "source": "ner", "metadata": {"in_sentence": "On July 29, 1963 the Government of Maharashtra passed a resolution superseding the 1941 rules and framing new rules for determining int.r se seniority of direct recruits and p, romotees."}}, {"text": "December 19, 1970", "label": "DATE", "start_char": 4429, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "On December 19, 1970 the State Government passed a resolution superseding the resolution of 1960."}}, {"text": "State of Bombay", "label": "GPE", "start_char": 5156, "end_char": 5171, "source": "ner", "metadata": {"in_sentence": "Immediately after the 1960 rules were made by the Government of Bombay the State of Bombay was bifurcated into the State of Maharashtra and Gujarat."}}, {"text": "Gujarat", "label": "GPE", "start_char": 5221, "end_char": 5228, "source": "ner", "metadata": {"in_sentence": "Immediately after the 1960 rules were made by the Government of Bombay the State of Bombay was bifurcated into the State of Maharashtra and Gujarat."}}, {"text": "Government of Gujarat", "label": "ORG", "start_char": 5234, "end_char": 5255, "source": "ner", "metadata": {"in_sentence": "The Government of Gujarat passed a resolution on lay l, 1960' providing that all rules, regulations, circulars etc.,"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 5581, "end_char": 5589, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 10", "label": "PROVISION", "start_char": 5631, "end_char": 5640, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 5760, "end_char": 5776, "source": "ner", "metadata": {"in_sentence": "On the bifurcation certain permanent and temporary posts of Deputy Engineers were allocated to the State of Gujarat."}}, {"text": "Arts. 14 and 16", "label": "PROVISION", "start_char": 6898, "end_char": 6913, "source": "regex", "metadata": {"statute": null}}, {"text": "Except the Bombay Rules", "label": "STATUTE", "start_char": 7427, "end_char": 7450, "source": "regex", "metadata": {}}, {"text": "August 21, 1965", "label": "DATE", "start_char": 7494, "end_char": 7509, "source": "ner", "metadata": {"in_sentence": "HELD :l(a) Except the Bombay Rules of 1939 and the Gujarat notification dated August 21, 1965 the rest of the rules are in the nature of executive instruc."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 7676, "end_char": 7684, "source": "regex", "metadata": {"linked_statute_text": "Except the Bombay Rules", "statute": "Except the Bombay Rules"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 7727, "end_char": 7756, "source": "regex", "metadata": {}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 8153, "end_char": 8161, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Government of a State", "label": "ORG", "start_char": 8211, "end_char": 8232, "source": "ner", "metadata": {"in_sentence": "All executive action of the Government of a State is required by Art."}}, {"text": "Art. 166", "label": "PROVISION", "start_char": 8248, "end_char": 8256, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "January 11, 1949", "label": "DATE", "start_char": 11379, "end_char": 11395, "source": "ner", "metadata": {"in_sentence": "791 B-D]\n\n(c) It is difficult to uphold the claim of the promotees that the 1941 rules were modified by the letter dated January 11, 1949."}}, {"text": "Ministry of Home and Revenue", "label": "ORG", "start_char": 11864, "end_char": 11892, "source": "ner", "metadata": {"in_sentence": "The Association had addressed its letter, not to the Ministry which handled problems of Engineering Services, but to the Ministry of Home and Revenue, the latter of which was concerned to consider the grievance of Deputy Collectors."}}, {"text": "[1975] 2 S.C.R. 979", "label": "CASE_CITATION", "start_char": 12817, "end_char": 12836, "source": "regex", "metadata": {}}, {"text": "Jatter", "label": "OTHER_PERSON", "start_char": 14802, "end_char": 14808, "source": "ner", "metadata": {"in_sentence": "In other words, direct recruits and promotees have to be appointed in the proportion of 75: 25 to Class II cadre, the former as Deputy Engineers and the Jatter as officiating Deputy Engineers, but once that i9 done, the quota rule would cease to apply with the result that confirmations in the post of Deputy Engineers are not required to be made in the proportion in which the initial appointments had to be made."}}, {"text": "S. B. PATWARDHAN V. MAHARASHTRA 779", "label": "JUDGE", "start_char": 16316, "end_char": 16351, "source": "ner", "metadata": {"in_sentence": "ground for this differentiation bearing nexus vrith efficiency ur {Jllbtic services, it might perhaps have been possible to sustain such a\n\nS. B. PATWARDHAN V. MAHARASHTRA 779\n\nclassification."}}, {"text": "Arts. 14 and 16", "label": "PROVISION", "start_char": 18115, "end_char": 18130, "source": "regex", "metadata": {"statute": null}}, {"text": "January 12. 1961", "label": "DATE", "start_char": 19538, "end_char": 19554, "source": "ner", "metadata": {"in_sentence": "The circulars dated January 12."}}, {"text": "Bombay Reorganisation Act", "label": "STATUTE", "start_char": 19935, "end_char": 19960, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 20726, "end_char": 20754, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : C.A. No."}}, {"text": "D K. K Singhvi", "label": "OTHER_PERSON", "start_char": 21188, "end_char": 21202, "source": "ner", "metadata": {"in_sentence": "D K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.\n\nJ. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos."}}, {"text": "A. K. Garg", "label": "LAWYER", "start_char": 21218, "end_char": 21228, "source": "ner", "metadata": {"in_sentence": "D K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.\n\nJ. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos.", "canonical_name": "A. K. Garg"}}, {"text": "S. C. Agarwal", "label": "OTHER_PERSON", "start_char": 21230, "end_char": 21243, "source": "ner", "metadata": {"in_sentence": "D K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.\n\nJ. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos."}}, {"text": "V.\n\nJ. Francis", "label": "OTHER_PERSON", "start_char": 21248, "end_char": 21262, "source": "ner", "metadata": {"in_sentence": "D K. K Singhvi in CA 1113/74, A. K. Garg, S. C. Agarwal and V.\n\nJ. Francis for the appellants in CAs 1113/and242/74 & for respondents Nos."}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 21446, "end_char": 21460, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare and M. N. Shroff, for respondents 1 and 2 in CA 1113/74."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 21465, "end_char": 21477, "source": "ner", "metadata": {"in_sentence": "M. C. Bhandare and M. N. Shroff, for respondents 1 and 2 in CA 1113/74."}}, {"text": "M. V. Paranjape", "label": "LAWYER", "start_char": 21519, "end_char": 21534, "source": "ner", "metadata": {"in_sentence": "M. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.\n\nVeena Devi, for respondent No.", "canonical_name": "M. V. Paranjape"}}, {"text": "M. K. Joshi", "label": "LAWYER", "start_char": 21536, "end_char": 21547, "source": "ner", "metadata": {"in_sentence": "M. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.\n\nVeena Devi, for respondent No."}}, {"text": "K. Rajendra Choudhary", "label": "LAWYER", "start_char": 21549, "end_char": 21570, "source": "ner", "metadata": {"in_sentence": "M. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.\n\nVeena Devi, for respondent No."}}, {"text": "Veena Devi", "label": "LAWYER", "start_char": 21581, "end_char": 21591, "source": "ner", "metadata": {"in_sentence": "M. V. Paranjape, M. K. Joshi, K. Rajendra Choudhary and Mrs.\n\nVeena Devi, for respondent No."}}, {"text": "K. Ramamurthi", "label": "LAWYER", "start_char": 21637, "end_char": 21650, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Vimal .Dave and Miss Kai/ash Mehta, for the appellants in CAs 285 to 287'/74 and for the respondents No."}}, {"text": "Vimal .Dave", "label": "LAWYER", "start_char": 21652, "end_char": 21663, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Vimal .Dave and Miss Kai/ash Mehta, for the appellants in CAs 285 to 287'/74 and for the respondents No."}}, {"text": "Kai/ash Mehta", "label": "LAWYER", "start_char": 21673, "end_char": 21686, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, Vimal .Dave and Miss Kai/ash Mehta, for the appellants in CAs 285 to 287'/74 and for the respondents No."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 21781, "end_char": 21792, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, in CA 285 to 287 /74, P.H. Parekh and M. N. Shroff for the respondent No."}}, {"text": "P.H. Parekh", "label": "LAWYER", "start_char": 21816, "end_char": 21827, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, in CA 285 to 287 /74, P.H. Parekh and M. N. Shroff for the respondent No."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 21958, "end_char": 21969, "source": "ner", "metadata": {"in_sentence": "The Judgment ot the Court was delivered by\n\nCHANDRACHUD, J.-This is a group of five appeals, one from Maharashtra and four from Gujarat."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 22145, "end_char": 22162, "source": "ner", "metadata": {"in_sentence": "They involve substantially identical questions and since the appeal from the judgment of the Bombay High Court was argued as the main appeal, we will refer 1:o the facts of that appeal and indicate at appropriate places if there is any material difference between those facts and the facts leading to the Gujarat appeals."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 22455, "end_char": 22475, "source": "ner", "metadata": {"in_sentence": "1113 of 1974 from Maharashtra is by certificate granted by the High Court of Bombay under Art."}}, {"text": "Art. 133(l)", "label": "PROVISION", "start_char": 22482, "end_char": 22493, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 133(1)", "label": "PROVISION", "start_char": 22646, "end_char": 22657, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 23076, "end_char": 23094, "source": "ner", "metadata": {"in_sentence": "1099 of 1969, 422 of 1970 and 1418 A of 1971 which were disposed o.f by a Full Bench of the Gujarat High Court by its judgment dated July 14, 1973."}}, {"text": "Bombay High, Court", "label": "COURT", "start_char": 23216, "end_char": 23234, "source": "ner", "metadata": {"in_sentence": "The complexity of the questions involved in thee appeals has been expressed by the Bombay High, Court by saying that the writ petitions before it involvf'XI \"ticklish and complicated questions\" and by the Gujarat High Court by saying that though, it 'had many occasions to consider complex problems pertaining to service laws, there was \"no case comparable\" to the writ petitions filed before it in the instant case."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 23578, "end_char": 23586, "source": "ner", "metadata": {"in_sentence": "The learned Chief Justice (Bhagwati, J.) who delivered the judgment of the Full Bench observes that these questions of \"unrivalled complexity\" had caused considerable anxiety to the Court in reaching a satisfactory conclusion."}}, {"text": "February 19, 1970", "label": "DATE", "start_char": 24982, "end_char": 24999, "source": "ner", "metadata": {"in_sentence": "They were confirmed as Deputy Engineers after the coming into force of certain rules framed on February 19, 1970."}}, {"text": "State of Maharashtra", "label": "RESPONDENT", "start_char": 25042, "end_char": 25062, "source": "ner", "metadata": {"in_sentence": "The 1st respondent to the appeal is the State of Maharashtra.", "canonical_name": "STATE OF MAHARASHTRA & OTHERS"}}, {"text": "Maharashtra Government", "label": "ORG", "start_char": 25969, "end_char": 25991, "source": "ner", "metadata": {"in_sentence": "According to them, the rules framed by the Maharashtra Government on April 29,\n\n1960 cannot take."}}, {"text": "April 29,\n\n1960", "label": "DATE", "start_char": 25995, "end_char": 26010, "source": "ner", "metadata": {"in_sentence": "According to them, the rules framed by the Maharashtra Government on April 29,\n\n1960 cannot take."}}, {"text": "Arts. 14 and 16", "label": "PROVISION", "start_char": 26256, "end_char": 26271, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 26375, "end_char": 26393, "source": "ner", "metadata": {"in_sentence": "They also challenge the 1970 rules on the ground that they Jack approval of the Central Government, thereby violating the proviso to s.81(6) of the Bombay State Reorganisation Act of 1960."}}, {"text": "s.81(6)", "label": "PROVISION", "start_char": 26428, "end_char": 26435, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Engineering Service", "label": "ORG", "start_char": 27044, "end_char": 27075, "source": "ner", "metadata": {"in_sentence": "Putting it as briefly as one may, the sum and substance of the stand taken by respondents 2 and 3 is that neither the 1941 rules nor the 1963 rules are applicable to employees in Maharashtra Engineering Service."}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 27148, "end_char": 27168, "source": "ner", "metadata": {"in_sentence": "The posts of Deputy Engineers, according to them and according to the State of Maharashtra, were required to be filled in by direct recruits and promotees in the ratio of 7 5 : 25 under the 1960 rules which had superseded the earc lier rules of 1939."}}, {"text": "Bombay Subordinate Service df Engineers", "label": "ORG", "start_char": 29120, "end_char": 29159, "source": "ner", "metadata": {"in_sentence": "The Engineering Service in the then province 'of Bombay consisted, prior to 1937, of (i) the Indian Engineering Service which was an All India Service, (ii) the Bombay Subordinate Service df Engineers,\n\n(iii) Supervisors, both pennanent and temporary, and (iv) temporary Engineers, appointed annually."}}, {"text": "Bombay Subordinate Service of Engineers", "label": "RESPONDENT", "start_char": 29266, "end_char": 29305, "source": "ner", "metadata": {"in_sentence": "The Bombay Subordinate Service of Engineers consisted of non-gazetted Class III employees, in which 12 posts used to be filled in annually by direct recruitment on the basis of the results of the examination held for Diploma in Civil Engineering."}}, {"text": "March 22, 1937", "label": "DATE", "start_char": 29612, "end_char": 29626, "source": "ner", "metadata": {"in_sentence": "On March 22, 1937 the Government of Bombay in the Public Works Department passed a resolution reorganizing the Engineering Service."}}, {"text": "September 21, 1939", "label": "DATE", "start_char": 30248, "end_char": 30266, "source": "ner", "metadata": {"in_sentence": "On September 21, 1939 the Government of Bombay passed a resolution adopting rules for regulating the methods of recruitment to the posts of Assistant Engineers and Executive Engineers in Class I Service and the posfs of Deputy Engineers in Class II Service."}}, {"text": "s. 241", "label": "PROVISION", "start_char": 30590, "end_char": 30596, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act 1935", "label": "STATUTE", "start_char": 30612, "end_char": 30640, "source": "regex", "metadata": {}}, {"text": "Section V of Appendix C to the Bombay Civil Services Classification and Recruitment Rules", "label": "STATUTE", "start_char": 30769, "end_char": 30858, "source": "regex", "metadata": {}}, {"text": "Bombay Service of Engineers, Class I", "label": "ORG", "start_char": 30978, "end_char": 31014, "source": "ner", "metadata": {"in_sentence": "Rule 2 of the 1939 Rules laid down the method of recruitment to the Bombay Service of Engineers, Class I, by providing that such recruitment was to be made either (a) by nomination under the guarantee given to the College of Engineering, Poona, or (b) by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II."}}, {"text": "College of Engineering, Poona", "label": "ORG", "start_char": 31124, "end_char": 31153, "source": "ner", "metadata": {"in_sentence": "Rule 2 of the 1939 Rules laid down the method of recruitment to the Bombay Service of Engineers, Class I, by providing that such recruitment was to be made either (a) by nomination under the guarantee given to the College of Engineering, Poona, or (b) by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II."}}, {"text": "Bombay Service of Engineers Class II", "label": "ORG", "start_char": 31233, "end_char": 31269, "source": "ner", "metadata": {"in_sentence": "Rule 2 of the 1939 Rules laid down the method of recruitment to the Bombay Service of Engineers, Class I, by providing that such recruitment was to be made either (a) by nomination under the guarantee given to the College of Engineering, Poona, or (b) by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II."}}, {"text": "Bombay Subordinate Engineering Service", "label": "ORG", "start_char": 32174, "end_char": 32212, "source": "ner", "metadata": {"in_sentence": "Those sources were ( 1) the Bombay Subordinate Engineering Service, (2) Permanent or temporary Supervisors and (3) Temporary Engineers appointed on annual sanction."}}, {"text": "Engineering, Poona", "label": "ORG", "start_char": 33047, "end_char": 33065, "source": "ner", "metadata": {"in_sentence": "A The guarantee envisaged by rules 2 (a) and 10 (a) of the 19 3 9 rules was given by the Government to the students of the College of Engineering, Poona, under a resolution dated July 12, 1940: The guarantee operated in different measures until it was finally withdrawn by a resolution dated May 27, 1947."}}, {"text": "July 12, 1940", "label": "DATE", "start_char": 33092, "end_char": 33105, "source": "ner", "metadata": {"in_sentence": "A The guarantee envisaged by rules 2 (a) and 10 (a) of the 19 3 9 rules was given by the Government to the students of the College of Engineering, Poona, under a resolution dated July 12, 1940: The guarantee operated in different measures until it was finally withdrawn by a resolution dated May 27, 1947."}}, {"text": "May 27, 1947", "label": "DATE", "start_char": 33205, "end_char": 33217, "source": "ner", "metadata": {"in_sentence": "A The guarantee envisaged by rules 2 (a) and 10 (a) of the 19 3 9 rules was given by the Government to the students of the College of Engineering, Poona, under a resolution dated July 12, 1940: The guarantee operated in different measures until it was finally withdrawn by a resolution dated May 27, 1947."}}, {"text": "November 25, 1950", "label": "DATE", "start_char": 33395, "end_char": 33412, "source": "ner", "metadata": {"in_sentence": "B By a resolution dated November 25, 1950 the Government 0£ Bombay appointed a Committee under the Chairmanship of Shri ~\n\nGurjar to examine the question of future recruitment to Engineering l Services, Classes I and II."}}, {"text": "Government 0£ Bombay", "label": "ORG", "start_char": 33417, "end_char": 33437, "source": "ner", "metadata": {"in_sentence": "B By a resolution dated November 25, 1950 the Government 0£ Bombay appointed a Committee under the Chairmanship of Shri ~\n\nGurjar to examine the question of future recruitment to Engineering l Services, Classes I and II."}}, {"text": "Gurjar", "label": "LAWYER", "start_char": 33494, "end_char": 33500, "source": "ner", "metadata": {"in_sentence": "B By a resolution dated November 25, 1950 the Government 0£ Bombay appointed a Committee under the Chairmanship of Shri ~\n\nGurjar to examine the question of future recruitment to Engineering l Services, Classes I and II."}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 34402, "end_char": 34418, "source": "ner", "metadata": {"in_sentence": "On November 1, 1956 there were 360 temporary posts of Deputy Engineers as against 200 permanent posts."}}, {"text": "April 29, 1960", "label": "DATE", "start_char": 34506, "end_char": 34520, "source": "ner", "metadata": {"in_sentence": "By April 29, 1960 these numbers had risen respectively to 600 and 400."}}, {"text": "Bombay Subordinate Service of Engineers", "label": "ORG", "start_char": 34991, "end_char": 35030, "source": "ner", "metadata": {"in_sentence": "It is necessary to mention al this stage that appointments as officiating Deputy Engineers to such temporary posts were made by promotion from amongst the members of the Bombay Subordinate Service of Engineers as also from amongst permanent and temporary Supervisors."}}, {"text": "Publk Service Commission", "label": "ORG", "start_char": 35953, "end_char": 35977, "source": "ner", "metadata": {"in_sentence": "As regards appointments by nomination it was provided that th\"y should be made through competitive examination held by the Publk Service Commission and that for both the classes of service there should be a H common examination."}}, {"text": "1st November, 1956", "label": "DATE", "start_char": 38225, "end_char": 38243, "source": "ner", "metadata": {"in_sentence": "This percentage should be aimed at for confirmations made after 1st November, 1956, subject of course, to Class II officers of the requisite fitnes~ Md length."}}, {"text": "Bombay Public Service Commission", "label": "ORG", "start_char": 41457, "end_char": 41489, "source": "ner", "metadata": {"in_sentence": "i) The S.ub-Divisional post~ in the Department are at present manned by direet recruits to Bo.mbay Service of Engineers, Class II cadre, Deputy Engmeers confirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruit.ed by the Bombay Public Service Commission, Officiating Deputy Engineers and similar other categories. ."}}, {"text": "May 1, 1960", "label": "DATE", "start_char": 43160, "end_char": 43171, "source": "ner", "metadata": {"in_sentence": "The Rules of 1960 were made by the Government of Bombay on April 29, 1960 and within two days thereafter, that is, on May 1, 1960 State of Bombay was bifurcated into the States of Maharashtra and Gujarat."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 43222, "end_char": 43233, "source": "ner", "metadata": {"in_sentence": "The Rules of 1960 were made by the Government of Bombay on April 29, 1960 and within two days thereafter, that is, on May 1, 1960 State of Bombay was bifurcated into the States of Maharashtra and Gujarat."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 43721, "end_char": 43729, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 10", "label": "PROVISION", "start_char": 43825, "end_char": 43834, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 44110, "end_char": 44115, "source": "ner", "metadata": {"in_sentence": "By that notification, the Government of Gujarat introduced a new clause, clause 10, in the Rules of 1960 providing that candidates selected through the competitive examination and appointed to posts in the Gujarat Service of Engineers, Qass I and Qass II, shall if so required, be liable to serve in any Defence Service or post connected with the defence of India, provided that such a candidate shall not be required to serve as aforesaid after the expiry of ten years from the date of his appointment or after attaining the age of 40 years."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 44697, "end_char": 44705, "source": "regex", "metadata": {"statute": null}}, {"text": "March 28, 1961", "label": "DATE", "start_char": 45757, "end_char": 45771, "source": "ner", "metadata": {"in_sentence": "On March 28, 1961 the Government of Gujarat passed an order provisionally confirming 3 7 officiating Deputy Engineers with effect from May 1, 1960."}}, {"text": "Goverment of Maharashtra", "label": "ORG", "start_char": 46247, "end_char": 46271, "source": "ner", "metadata": {"in_sentence": "But the Goverment of Maharashtra issued two resolutions after the bifurcation of the State of Bombay."}}, {"text": "Gu.iarat", "label": "GPE", "start_char": 47203, "end_char": 47211, "source": "ner", "metadata": {"in_sentence": "In Gu.iarat, there are no r\"\"olutions corresponding to those of 1963 and 1970 issued by the Maharashtra Government."}}, {"text": "July 14, 1973", "label": "DATE", "start_char": 47676, "end_char": 47689, "source": "ner", "metadata": {"in_sentence": "Four Special Civil Applications were filed in the Gujarat High Court which were disposed of by it by a common judgment dated July 14, 1973."}}, {"text": "Guiarat mgh Court", "label": "COURT", "start_char": 47908, "end_char": 47925, "source": "ner", "metadata": {"in_sentence": "The promotees failed in the Bombay High Court but succeeded in the Guiarat mgh Court."}}, {"text": "K. K. Singhvi", "label": "LAWYER", "start_char": 48037, "end_char": 48050, "source": "ner", "metadata": {"in_sentence": "Before us, Mr. K. K. Singhvi and."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 48060, "end_char": 48070, "source": "ner", "metadata": {"in_sentence": "Mr. R. K. Garg appeared for the promotees while M~. :, M. V. Paranjpe and Mr. M. K. Ramamurti appeared for the direct recruits.", "canonical_name": "A. K. Garg"}}, {"text": "M. V. Paranjpe", "label": "LAWYER", "start_char": 48111, "end_char": 48125, "source": "ner", "metadata": {"in_sentence": "Mr. R. K. Garg appeared for the promotees while M~. :, M. V. Paranjpe and Mr. M. K. Ramamurti appeared for the direct recruits.", "canonical_name": "M. V. Paranjape"}}, {"text": "M. K. Ramamurti", "label": "LAWYER", "start_char": 48134, "end_char": 48149, "source": "ner", "metadata": {"in_sentence": "Mr. R. K. Garg appeared for the promotees while M~. :, M. V. Paranjpe and Mr. M. K. Ramamurti appeared for the direct recruits."}}, {"text": "State of Maharashtra", "label": "GPE", "start_char": 48221, "end_char": 48241, "source": "ner", "metadata": {"in_sentence": "Mr. M. C. Bhandare appeared fov the State of Maharashtra and Mr. D. V. Patel for the State of Gujarat."}}, {"text": "State of Gujarat", "label": "GPE", "start_char": 48270, "end_char": 48286, "source": "ner", "metadata": {"in_sentence": "Mr. M. C. Bhandare appeared fov the State of Maharashtra and Mr. D. V. Patel for the State of Gujarat."}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 48293, "end_char": 48298, "source": "ner", "metadata": {"in_sentence": "Mr. Patel took a non-contentious attitude, which highlights how difficult it was for the State counsel to support any particular cause in view 0£ the shifting stand taken up by both the State Governments from time to time."}}, {"text": "September' 21, 1939", "label": "DATE", "start_char": 50698, "end_char": 50717, "source": "ner", "metadata": {"in_sentence": "In this behalf, aitention has to be called particularly to : (I) The rules framed by the Governmen~ of Bombay on September' 21, 1939 under s. 241(2l(b) of the Government of India Act, 1935; (2) The rules framed by the Government of Bombay on November 21, 1941 regarding fixation of seniority; (3) The letter dated January II, 1949 written by the Chief Secratary, Government of Bombay, to the Honorarv Secretary."}}, {"text": "s. 241(2l(b)", "label": "PROVISION", "start_char": 50724, "end_char": 50736, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 50744, "end_char": 50773, "source": "regex", "metadata": {}}, {"text": "November 21, 1941", "label": "DATE", "start_char": 50827, "end_char": 50844, "source": "ner", "metadata": {"in_sentence": "In this behalf, aitention has to be called particularly to : (I) The rules framed by the Governmen~ of Bombay on September' 21, 1939 under s. 241(2l(b) of the Government of India Act, 1935; (2) The rules framed by the Government of Bombay on November 21, 1941 regarding fixation of seniority; (3) The letter dated January II, 1949 written by the Chief Secratary, Government of Bombay, to the Honorarv Secretary."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 51437, "end_char": 51445, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "clause 10", "label": "PROVISION", "start_char": 51479, "end_char": 51488, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "January 12, 1961", "label": "DATE", "start_char": 51698, "end_char": 51714, "source": "ner", "metadata": {"in_sentence": "309 of the Constitution, introducing clause 10 in the Rules of 1960; (7) The Resolution of the Government of Maharashtra dated December 19, 1970 superseding the Resolution of April 29, 1950 and .frwning new rules of seniority; and ( 8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain, number of temporary posts into permanent posts from time to time."}}, {"text": "March 15, 1963", "label": "DATE", "start_char": 51716, "end_char": 51730, "source": "ner", "metadata": {"in_sentence": "309 of the Constitution, introducing clause 10 in the Rules of 1960; (7) The Resolution of the Government of Maharashtra dated December 19, 1970 superseding the Resolution of April 29, 1950 and .frwning new rules of seniority; and ( 8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain, number of temporary posts into permanent posts from time to time."}}, {"text": "October 18, 1968", "label": "DATE", "start_char": 51735, "end_char": 51751, "source": "ner", "metadata": {"in_sentence": "309 of the Constitution, introducing clause 10 in the Rules of 1960; (7) The Resolution of the Government of Maharashtra dated December 19, 1970 superseding the Resolution of April 29, 1950 and .frwning new rules of seniority; and ( 8) The Circulars dated January 12, 1961, March 15, 1963 and October 18, 1968 issued by the Government of Maharashtra, converting a certain, number of temporary posts into permanent posts from time to time."}}, {"text": "art 309", "label": "PROVISION", "start_char": 52477, "end_char": 52484, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 166", "label": "PROVISION", "start_char": 52572, "end_char": 52580, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 53030, "end_char": 53038, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 241", "label": "PROVISION", "start_char": 53062, "end_char": 53068, "source": "regex", "metadata": {"statute": null}}, {"text": "India Act, 1936", "label": "STATUTE", "start_char": 53097, "end_char": 53112, "source": "regex", "metadata": {}}, {"text": "Government ot Bombay", "label": "ORG", "start_char": 54043, "end_char": 54063, "source": "ner", "metadata": {"in_sentence": "By its resolution dated November 21, 1941 the Government ot Bombay, Political and services Department, directed that in the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of appointment on probation while in the case of officers promoted to \"substantive vacancies\", the seniority should be determined with reference to the date of their promotion to the substantive vacancies, provided there has been no break in their service prior to their confirmation in those vacancies."}}, {"text": "L. M.\n\nAjgaonkar", "label": "LAWYER", "start_char": 56354, "end_char": 56370, "source": "ner", "metadata": {"in_sentence": "It is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determinin~ the seniority of direct recruits and promoted office~ in the provmcial: Services except the Class I Bombay Service of Engineers, Shri L. M.\n\nAjgaonkar, Deputy Secretary to the Government of Maharashtra says in his affidavit dated July 25, 1973 that in practice the Rules ell E 1941 were never applied to Class II officers in the Engineering Service and that iheir seniority used to be determined by the same rules by which the seniority of Class I officers was determined.", "canonical_name": "L. M.\n\nAjgaonkar"}}, {"text": "July 25, 1973", "label": "DATE", "start_char": 56450, "end_char": 56463, "source": "ner", "metadata": {"in_sentence": "It is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determinin~ the seniority of direct recruits and promoted office~ in the provmcial: Services except the Class I Bombay Service of Engineers, Shri L. M.\n\nAjgaonkar, Deputy Secretary to the Government of Maharashtra says in his affidavit dated July 25, 1973 that in practice the Rules ell E 1941 were never applied to Class II officers in the Engineering Service and that iheir seniority used to be determined by the same rules by which the seniority of Class I officers was determined."}}, {"text": "Ajgaonkar", "label": "OTHER_PERSON", "start_char": 56799, "end_char": 56808, "source": "ner", "metadata": {"in_sentence": "Shri Ajgaonkar's affidavit contains an omnibus and rolled-up clause of verification at the end, which detracts from the weight of his assertion."}}, {"text": "July 28, 1948", "label": "DATE", "start_char": 57278, "end_char": 57291, "source": "ner", "metadata": {"in_sentence": "The letter was written in answer to the representa!lon dated July 28, 1948 made by the Bombay Civil Service Association to the Government of Bombay regarding emergency recruitment to the Indian Administrative service and \"other matters\"."}}, {"text": "L. M. Ajgaonkar", "label": "LAWYER", "start_char": 64777, "end_char": 64792, "source": "ner", "metadata": {"in_sentence": "In the Maharashtra writ petition, 815 of 1972, at many as four affidavits were filed on behalf of the State Government by Shri L. M. Ajgaonkar.", "canonical_name": "L. M.\n\nAjgaonkar"}}, {"text": "July 25, December 17, December 21, 1973", "label": "DATE", "start_char": 64811, "end_char": 64850, "source": "ner", "metadata": {"in_sentence": "These are dated July 25, December 17, December 21, 1973 and January 17, 1974."}}, {"text": "January 17, 1974", "label": "DATE", "start_char": 64855, "end_char": 64871, "source": "ner", "metadata": {"in_sentence": "These are dated July 25, December 17, December 21, 1973 and January 17, 1974."}}, {"text": "November 8, 1%2", "label": "DATE", "start_char": 65501, "end_char": 65516, "source": "ner", "metadata": {"in_sentence": "The resoluticn dated November 8, 1%2 issued by the Government of Maharashtra."}}, {"text": "N. S. Nagram", "label": "OTHER_PERSON", "start_char": 66153, "end_char": 66165, "source": "ner", "metadata": {"in_sentence": "In so far as the Gujarat appeals are concerned, Shri N. S. Nagram, Under Secretary to the Government of Gujarat, P.W.D., filed an affidavit <lated April 28, 1970 in one of the writ petitions, 422 of 1970."}}, {"text": "April 28, 1970", "label": "DATE", "start_char": 66247, "end_char": 66261, "source": "ner", "metadata": {"in_sentence": "In so far as the Gujarat appeals are concerned, Shri N. S. Nagram, Under Secretary to the Government of Gujarat, P.W.D., filed an affidavit <lated April 28, 1970 in one of the writ petitions, 422 of 1970."}}, {"text": "June 22, 1970", "label": "DATE", "start_char": 66752, "end_char": 66765, "source": "ner", "metadata": {"in_sentence": "To the similar effect is the affidavit dated June 22, 1970 made in another writ petition, 1099 of 1969, by Shri A. R. Bhatt, Under Secretary to the Government of Gujarat-; P.W.D.\n\nHe says therein that \"there are no separate categories of permanent and temporary posts of Deputy Engineers."}}, {"text": "A. R. Bhatt", "label": "LAWYER", "start_char": 66819, "end_char": 66830, "source": "ner", "metadata": {"in_sentence": "To the similar effect is the affidavit dated June 22, 1970 made in another writ petition, 1099 of 1969, by Shri A. R. Bhatt, Under Secretary to the Government of Gujarat-; P.W.D.\n\nHe says therein that \"there are no separate categories of permanent and temporary posts of Deputy Engineers."}}, {"text": "Government of Gujarat-", "label": "ORG", "start_char": 66855, "end_char": 66877, "source": "ner", "metadata": {"in_sentence": "To the similar effect is the affidavit dated June 22, 1970 made in another writ petition, 1099 of 1969, by Shri A. R. Bhatt, Under Secretary to the Government of Gujarat-; P.W.D.\n\nHe says therein that \"there are no separate categories of permanent and temporary posts of Deputy Engineers."}}, {"text": "Gujarat Government", "label": "ORG", "start_char": 67125, "end_char": 67143, "source": "ner", "metadata": {"in_sentence": "Pleading on beba!f of the Gujarat Government, Shri Bhatt stoutly resisted the claim of direct recruits that they had prior claim for consideration for promotion to the posts of Executive Engineers on the ground that they pelong to the Class II cadre while the officiating Deputy Engineers do not."}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 67150, "end_char": 67155, "source": "ner", "metadata": {"in_sentence": "Pleading on beba!f of the Gujarat Government, Shri Bhatt stoutly resisted the claim of direct recruits that they had prior claim for consideration for promotion to the posts of Executive Engineers on the ground that they pelong to the Class II cadre while the officiating Deputy Engineers do not."}}, {"text": "Maharashtra and Guiarat Governments", "label": "ORG", "start_char": 67470, "end_char": 67505, "source": "ner", "metadata": {"in_sentence": "We caunot ignore these sworn assertions made solemnly by officers of the Maharashtra and Guiarat Governments."}}, {"text": "April 13, 1945", "label": "DATE", "start_char": 67709, "end_char": 67723, "source": "ner", "metadata": {"in_sentence": "The fact that the permanent strength of the cadre was determined on the basis 0£ permanent posts at any given time, as for example when thel Bombay\n\nQ_gvemment passed resolutions on March 22, 1937 and April 13, 1945 cannot detract from the position that even temporary posts al Deputy Engineers were treated as additions, though temporary, to Class II cadre."}}, {"text": "A. K. Subraman", "label": "OTHER_PERSON", "start_char": 71245, "end_char": 71259, "source": "ner", "metadata": {"in_sentence": "In A. K. Subraman (supra) it was held by this Court, while interpreting rules relating to Central Engineering Service Class I, that though in cases where recruitment is made from different sources the quota system can be validly applied, the quota rule was to be enforced at the time of initial recruitment to the posts of officiating Executive Engineers and not at the time of their confirmation."}}, {"text": "Arts. 14 and 16", "label": "PROVISION", "start_char": 77624, "end_char": 77639, "source": "regex", "metadata": {"statute": null}}, {"text": "P. Y. Joshi", "label": "OTHER_PERSON", "start_char": 79041, "end_char": 79052, "source": "ner", "metadata": {"in_sentence": "This contention has not only the merit of plausibility but is apparently supported by an observation in P. Y. Joshi\n\n(supra) case."}}, {"text": "Guiarat", "label": "GPE", "start_char": 80759, "end_char": 80766, "source": "ner", "metadata": {"in_sentence": "In the Gujarat writ petitions it was argued that the 1960 rules, though originally in the nature of executive instructions, acquired a statutorv force and character by reason of their amendment by the rules of 1965 which were made by the Governor of Guiarat in exercise of the power under the proviso to Art."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 80813, "end_char": 80821, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Service of Engineers Class I or Class II", "label": "ORG", "start_char": 82531, "end_char": 82583, "source": "ner", "metadata": {"in_sentence": "Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be."}}, {"text": "January 20, 1972", "label": "DATE", "start_char": 83197, "end_char": 83213, "source": "ner", "metadata": {"in_sentence": "Rule 12(a) as amended by the Government reso:ution dated January 20, 1972 provides that the cadre of Deputy Engineers will consist of (i) all officers confirmed upto the date of commencement of the rules as Deputy Engineers, whether actually working in or only having a lien on the posts; (ii) all direct recruits who have been appointed upto the date of commencement of the rules on probation against purmanent posts of Deputy Engineers (iii} all officers who were officiating as Deputy Engineers on 30th April, 1960, provided their promotions prior to 30th April, 1960 are not deemed to be fortuitous; and (iv)\n\nthdse who were not promoted prior to 30th April, 1960, but who have been included in the Select Lists for the period prior to 30th April 19oU of Overseers fit to be Deputy Engineers."}}, {"text": "October 18, 1969", "label": "DATE", "start_char": 84970, "end_char": 84986, "source": "ner", "metadata": {"in_sentence": "The circulars dated January 12, 1961, March 15, 1963 and October 18, 1969 which the promotees want to be enforced are issued by the Fmance Department and being in the nature of inter-departmen'.al communications, they cannot confer any right on the promotees."}}, {"text": "Bombay Reorganisation Act", "label": "STATUTE", "start_char": 85463, "end_char": 85488, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 81", "label": "PROVISION", "start_char": 85518, "end_char": 85523, "source": "regex", "metadata": {"statute": null}}, {"text": "April 10, 1970", "label": "DATE", "start_char": 87610, "end_char": 87624, "source": "ner", "metadata": {"in_sentence": "We would like to clarify that the list of seniority, for the period till November 1, 1956, prepared by the Maharashtra Government by tts resolution dated April 10, 1970 has been approved by the Government of India."}}, {"text": "Government of India", "label": "ORG", "start_char": 87650, "end_char": 87669, "source": "ner", "metadata": {"in_sentence": "We would like to clarify that the list of seniority, for the period till November 1, 1956, prepared by the Maharashtra Government by tts resolution dated April 10, 1970 has been approved by the Government of India."}}, {"text": "January 31, 1977", "label": "DATE", "start_char": 88383, "end_char": 88399, "source": "ner", "metadata": {"in_sentence": "These then are our reasons in cupport of the order which we paS<Sed <lll January 31, 1977."}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 88795, "end_char": 88816, "source": "ner", "metadata": {"in_sentence": "1099 of 1969 filed by them in the High Court of Gujarat."}}]}
{"document_id": "1977_3_78_84_EN", "year": 1977, "text": "STATE OF MAHARASHTRA\n\nHANS RAJ DEPAR ETC.\n\nFebruary 25, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nMaharashtra Scheduled Articles (Display and 1Vlarking of Prices) Order, 1966, Clauses 3(a) and (4)-Meaninf intendment of.\n\nCluse 3(a) of the Maharashtra Scheduled Articles (Display and Marking of Pnces) Order, 1966 issued by the Maharashtra Government in exercise of the powers conferred by s. 3 read vvith s. 5 of the &scntial Commodities ,.\\ct\n\n(Act 10 of. 1955) provides that \"every dealer shall in respect of the articles specified in Schedule I display a list of prices in the form prescribed in the Schedule\", Schedule f lists under items 15 and 16 \"Vanaspati tinned'' .and\n\n\"Vanaspati loose\" respectively.\n\nClause ( 4) of the Order provides that no dealer shail (a) sell or agree or offer for sale any article at a price higher than the price displayed or (b) refuse to sell or withhold from sale of such articles to any person at the Price displayed or marked. Section 7 of the Essential Com modities Act provides for punishment for contravention of the order made under s. 3.\n\nThe four respondents, shopkeepers in Bombay-some run grocery shops, while some deal only in oils of different varieties-were charged for the offence of failure to display prices of vanaspati which they were selling in their shops in tinned and loose form. The defence of the respondents to the charge is that they were selling hydrogenated oils or vegetable ghee or vegetable oils and not \"vanaspati\".\n\nThe learned Magistrate acquitted the respondents and held that the charge was unsustainable because ( 1) Even if the word 'vanaspati' may have acquired a local meaning, it could not be said that the order used the word 'vanaspati' to include hydrogenated oils.\n\n(2) Since hydrogenated o'.ls were not included in Schedule J, the respondents could not be expected to know that they were bound to disclose the prices of hydrogenated oil.\n\nDismi<>sing the States' appeal, the High Court held. on a different reasoning that the prosecution was not maintainable since noncompLiance of clause (3) of the Order 1966, cannot he an offence punishable as contravention unless there is a contravention of clause 4, inasmuch as the intention of the Legislature which always made a distinct.ion between contravention of law and failure to comply or non-compliance with ; t, \\Vas to punish contravention of clause 4 and not of clause 3 sin1p!iciter.\n\nDismissing the State's appeal, the Court,\n\nHELD : ( 1) Clauses 3 rul, d 4 of the Maharashtra Scheduled (Display ar.d Marking of Prices) Order, 1966 deal with different malters because where-as clause 3 imposes an obligation on a dealer to display the prices of articles specified in Schedule I clause 4 prohibits him from selling an article at a price higher than the one displayed or from refusing to sell it at the price displayed.\n\nA contravention of clause 3 (a) is full and complete by mere reason of the fact that the dealer has failed to display the prices of articles specified in Schedule J.\n\nThat contravention does not depend on the consideration wl1ere he has charged a higher price than the price marked or whether he has refused to sell an article at the price displayed.\n\nIn other words, the first step which a dealer has to take is to d:splay the prices of articles specified in Schedule I; if he fails to do that. he is gu; lty of contravention of clause 3(a) which is punishable under s. 7( l) of the Essential Commodities Act, 1955. The additional obligation which the dealer has to discharge is to be ready and willing to sell articles at the prices displayed.\n\nFailure to do so is a different and distinct contravention which also attracts the application of s. 7(1). The view that clauses 3 and 4 of the Order\n\n1966 are so interlinked that the Legislature did not intend to punish 'the contra-\n\n• ,\n\nvention of the fonner unless such contravention was accompanied by a contravention of the latter provision is not correct. The wedding of the two clauses in this f<lsion is entirely UTI\\.\\'arranted.\n\n[81 E-H 82-A]\n\n(2) The orders of acquittal, in the instant case, must be confirmed on the ground of total lack of evidence showing that the re5pondents are dealers in vanaspati and that they had kept vanaspati for sale in their shops.\n\nIn view of the challenge that what was being sold \\vas not vanaspa1 i and that the tins did not contain vanaspati within the meaning of items 15 and 16 of Schedule I, the prosecution should have led evidence to :; ho\\v that the tins in fact contained vanaspati in the sense in which that expre~:iio11 is used in the Sche dule.\n\nThe mere ipe dixit of the Sub-Inspector who had merely assisted the Rationing Inspector in effecting the raid. \\Vithout any inventory of the articles of which prices v; rere not displayed, v; rithout exami\"'.1ing the Panchas and \\Vithout any sample of the \"Vanaspati\" alleged to h,1ve been sold b=ing taken, cannot establish the charge which involves a punishtnent of as long a term as seven years and normally of not less than three 1noath<J, as provided ins. 7(1)(a)\n\n(iii) of the Essential Commodities Act, 1955.\n\n[82 F-H, 84 CJ\n\n(3) Neither the Essential Commodities 1\\ct, 1955 nor the Maharashlra Scheduled ArticJes (Display and Marking of Prices) Order 1966 defines the expression \"Vanaspati\" and it was beside the p.:>int to say that \"Vanaspali\" is defined in the Bombay Sales Tax Act and the Prevention of Food Adulteration Rules. 1965 to include hydrogenated oil <Jince the purposes of these three Acts are quite differenl The prosecution has failed to establish as tn what is the true meaning and connotation of the expression \"Vanaspati\" and what kinds of articles are comprehended within the scope of that expression.\n\n[83 B-HJ\n\n( 4) According to the fundamental principle of criminal jurisprudence 1vhich reflects f.a!r play, a dealer must know 1vith reasorwble certainty and must have a fair warning as to what his obligation is, and 1vhat act of commission or omission on his part would constitute a criminal offence.\n\nThe State Government oug-ht to have expressed its intention clearly and unambiguou<::.ly by including hydrogenated oil within item'l 1 nnd 1 fi which refer\n\nto \"Vanaspati\". If that were done, a tyne of preJicament v;.'hich arises in E this case could easily have. been avoided with profit to the community.\n\n[84 A-BJ\n\nState oj Bihar v. Bhagirath Sharma, (1973) 3 S.C.R. 937, referred to;\n\n[The Court expressed its hooe that the !acuna in the Schedule J items 15 and 16 of the Maharashtra Scheduled Articles (Display and 1'.farking of Prices) Order, 1966 would be rectified expeditiously.J\n\nCIVIL APPELLATE JURISDICTION : Criminal Appeals Nos. 156- 159 of 1973.\n\n( Aupeals by special leave from the Judgment and Order dated 3-3-1971 of the Bombay High Court in Criminal Appeals Nos. 1475/ 69 and 370-37.2 of 70).\n\nM. N. Phadke, and M. N. Shroff, for the appellant in all appeals.\n\nG Y. S. Chitale, M. Mudgal and Rameshwar Nath, for respondent in Cr!. A. No. 158/73.\n\nRameshwar Nath, for respondent in Crl. A. No. 159/73).\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These four appeals arise out of four prose- H cutions which were disposed of by a common judgment by the learned Presidence Magistrate, 25th Court, Mazgaon, B?mha.v. !he facts leading to the prosecution are not in all respect's 1dent1cal m the four\n\ncases but it is obvious from the judgments under consideration that the cases were heard and disposed of on the basis that the variation in the facts would not make difference to the result.\n\nThe four respondents in these appeals are shopkeepers in Bombay-some run grocery shops while some deal only in oils of different varieties.\n\nThe charge against the respondents is that they failed to display prices of 'vanaspati' which they were selling in their shops in tinned and loose form.\n\nSection 3 of the Essential Commodities Act, 10 of 1955, empowers the Central Government, by order, to provide for regulating or prohibiting the production, supply and distribution or trade and commerce in any essential commodity for the purposes mmtioned in sub-s. (1) thereof.\n\nSub-section (2) of s.3 specifies various matters iu regard to which the Central Government may pass orders contemplated by sub-'s. (1). The power conferred by s. 3 was delegated by the Central Government to the State Governments in pursua nee of the provision contained in s. 5.\n\nSection 7 provides for punishment for contravention of an ordt; r made under s. 3.\n\nIn exercise of the powers conferred by s. 3 read with s. 5 of the Essential Commodities Act, 1955 the Government of Maharashtra issued the Maharashtra Scheduled Article's (Display and Marking of\n\nPrices) Order, 1966\".\n\nClause 3(a) of that order provides that every dealer shall, in respect of the articles specified in Schedule L display a list of prices in the form prescribed in that schedule.\n\nWe are concerned with items 15 and 16 of the Schedule which read: \"15.\n\nVanaspati, Tinned\" and \"16. Vanaspati, Loose.\" •\n\nStated broadly, the defence of the respondents to the charge is that they were selling hydrogenated oils or vegetable ghee or vegetable oils and not 'vanaspati'.\n\nThe. learned Magistrate acquitted the respondents in all the four cases holding that even if the \\Vord 'vanaspati' may have acquired a Inca! meaning, it could net be said that the order used the word 'vanaspati' to include hydrogenated oils. Since the respondents, according to the learned Magistrate, could not be expected to know that they were bound to disclose the price's of hydrogented oils also and since hydrogenated oils were not included in Schedule I. the charge was unsustainable.\n\nThe appeals filed by the State of Maharashtra against the orders of acquittal were heard and disposed of by a common judgment dated March 3, 1971 by a learned Single Judge of the High Court. Observing that there was considerable force .in the contention of the State\n\nGovernment that 'vanaspati' would include hydrogenated oils also, the learned Judge fel• that it was unnecessary to go into that question s; nce the prosecution was not maintainable for another reason.\n\nThat reason, according to the learned Judge, was that legislative draftsmen always made a distinction between 'contravention' of law and 'failure to comply or non-compliance' witb it.\n\nIf the Court is called upon to decide, says the learned Judge, whether a particular contravenfiim is\n\n- '\n\nan offence, it was bound to enquire whether mere no~-c?mpliance A was also intended to be punished.\n\nGuided by that pnnc1ple, . the learned Judge came to the conclusion that the duty to display_ pncs was \"a subsidiary matter to the prohibition which is. contained. m clause 4 which prohibits a dealer from selling an arttcle at a p:1cc higher than the price displayed or from refusing to sell or from with:\n\nholding from sale such articles at the price displayed or marked.' The sustance of the order was thus thought to be contained in clause B 4 and accordingly, the judgment proceeds; \"Mere non-compliance of clanse 3 cannot be an offence punishable as contravention unles there is a contravention of clause 4.\" Since the intention was said to be to punish contravention of clause 4 and not of clause 3 imp_li citer, the learned Judge held that the prosecution was not mamtamable and the accused were entitled to an acquittal.\n\nThese appeals by special leave are directed against the correctness of the High Court's C judgment.\n\nIt is necessary in the larger public interest to dispel the misunderstanding regarding the true meaning and intendment of clauses 3 and 4 of the 1966 Order. We will therefore deal first with the reasoning of the High Court that a mere contravention of clause 3 without the D contravention of clause 4 is not contravention within the meaning of s. 7 of the Essential Commodities Act 1955 and cannot therefore be punished. As stated earlier, clause 3(a) of the Order of 1966 imposes an obligation on every dealer to display a list of prices of the article 'specified in Schedule I. Clause 4 of the Order provides that no dealer shall (a) sell or agree or offer for sale any article at a price higher than the price displayed or (b) refuse to sell or withhold from E sale such article§ _to any person at the price displayed or marked. We find ourselves totally unable to appreciate that there can he no contravention of clause 3(a) unless there is a contravention of clause 4 also.\n\nThe two clauses deal with different matters because whereas clause 3. imposes an obligation on a dealer to display the prices of articles specified in Schedule I, clause 4 prohibits h; m from selling an article at a price higher than the one displaved or from refusing to F sell it at the price displayed.\n\nA contravention of clause 3(a) is.full and complete by mere reason of the fact that the dealer has failed to display the prices of articles specified in Schedule I. That contravention does not depend on the consideration whether he has charged a higher price than the price marked or whether he has refused to sell an article at the price displayed.\n\nIn other words, the first step which a dealer has to take is to display the prices of articles specified in G Schedule I; if he fails to do that, he is >!Ui!ty uf contravention of clause 3 (a) which is punishable under s. 7 (I) of the Essential Commodities Act, 1955.\n\nThe additional obligation which the dealer has to discharge is to be ready and willing to sell the articles at the prices displaved; failure to do so is a different and distinct contravention which also attracts the application of s. 7(1).\n\nWe find it impossible to subscribe to the view that clauses 3 and 4 of the Order of H 1966 are so interlinked that the legislature did not intend to punish the contravention of the former unless such contravention was accompanied by a contravention of the latter provision.\n\nThe wedding of\n\nthe two clauses in this fashion is entirely unwarranted.\n\nThe ground on which the High Court has acquitted the respondents is therefore untenable and we reject the reasoning in that behalf as unsustainble.\n\nWere we satisfied that the respondents were selling 'vanaspati', tinned or loose, we would have had no hesitation in setting aside the order of acquittal and in convicting the respondents, since the non-display of prices is admitted.\n\nThat raises the question whether there . is evidence to hold that the respondents were dealing in 'vanaspati'.\n\nThe evidence on this question is woefully inadequate and we regret to notice !_hat no serious attempt was made by the prosecution to establi'sh the charge.\n\nThe articles of which the prices were not displayed were not properly inventoried, which makes it difficult to predicate that the articles bore any particular description.\n\nPanchanamas were made of the articles but except in one case, where the panchanama was exhibited by consent, the panchas were not examined with the result that the panchanama:s remained unproved and therefore unexhibited.\n\nIn none of the cases was even a sample taken of the articles displayed for sale.\n\nIf that were done, the nature, quality and components of the goods could easily .have been proved by analysing the sample chemically.\n\nOne could then have said with easy facility that what was being sold was 'vanaspati'.\n\nInstead of doing what was easy and necessary to do, the prosecution offered, 11s a substitute for its plain duty, the vague recollections of a Rationing Inspector and a Sub Inspector of Police as to what was being sold by the respondents in their shops.\n\nFor illustrating how cavalierly the prosecution approached its task, we will take the facts of appeal No. 156 of 1973 in which the respondent is one Hansraj Depar.\n\nThe charge framed by the learned Magistrate affeges that the respondent had faiied to display the price list of 'vanaspati ghee'.\n\nThe charge should have' been not in respect of any type of ghee but in respect of 'vanaspati' which is the item mentioned in Schedule I. The Rationing Impector, K. N. Joshi (P.W. 1), \"stated in his evidence that the respondent had not exhibited the price of 'vanaspati ghee' which again is beside the point. Nothing at all, not even a sample of the articles alleged as vanaspati, was taken charge of from the shop and the witness admitted that he did not remember what variety of articles were sold in the shop and as to how many tins of what is said to be va naspati ghee were found therein.\n\nThe other witness, Sub Inspector Kurdur (P.W. 2) does say that the respondent was selling vanaspati as also oil and that there were in .his shop \"3 K. O. tins of Ravi Vanaspati, 2 K. 0. t.:ns of prabhat Vanaspati and one loose tin of Malali Vanaspati\". In view of the challenge that what was being sold was not •; anaspati and that the tin's did not contain vanaspati within the meaning of items l 5 and\n\n16 of Schedule I, the prosecution should have led evidence to show that the tins in fact contained vanaspati in the sense in which that expression is used in the Scheduled. The fpse dixit of the Sub Inspector who had. merely assisted the Rationing Inspector in effecting the raid cannot establish the charge which involves a punishment ot as long\n\nl r\n\na term as seven years and normally of not less than three months, as A provided in s. 7(1) (a) (ii) of the Essential Commodities Act, 1955.\n\nThe prosecution did n_ot make any attempt to establish as to what is the true meaning and connotation of the expression 'vanaspati' and what kind of articles or goods are comprehended within the scope of that expression.\n\nThe witnesses did not even say in their evidence, perfu_nctory as it is, that the word had acquired a popular meaning and was understood locally in a certain sense.\n\nNeither the Act of 1955 nor the Order of 1966 defines the expression 'vanaspati' and it was beside the point to say that 'vanaspati' is defined in the Bombay Sales Tax Act and the Prevention of Food Adulteration Rules, 1965 to include hydrogenated oil.\n\nThe purpose of the Sales Tax Act is to bring within the tax not as large a number of articles as possible, that of the Prevention of Food Adulteration Act and the Rules thereunder is to ensure that the health of the community is not endangered by adulterated or spurious articles of food while that of the Essential Commodities Act with which we are concerned in the instant case is to ensure the availability of essential goods to the community at a proper price.\n\nThis last Act was passed in order \"to provide, in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities\". Sub Inspector Kurdur is no expert for the purposes of this Act and we cannot, without more, accept the dogmatic assertion made by him in one of these cases that vanaspati and , l1ydrogenated oil \"mean the same thing.\" Hydrogenation is a specialised process and is described in Encyclopaedia Britannica (1951 ed., Vol 11, p. 978) as \"the treatment of a substance with hydrogen so that this combines directly with the substance treated. The term has, however,. developed a more technical and restricted sense. It is now generally used to mean the treatmen~ of an \"unsaturated\" organic compound with hydrogen, so as to convert it by direct addition to a \"saturated\" compound.\" The witness, excusably, seems unaware of this scientific sidelight and greater the ignorance, greater the dogma. If the witness were right, it is diflicult to understand why 'groundnut oil, Safflower oil, Sesamen oil and Mustard seed oil\" and \"coconut oil\" find a separate and distinct place in Schedule I at items 5 and 6.1, Perhaps what thel witness guessed, science may sl1ow to be true but that has to be shown, not guessed.\n\nIn State of Bihar v. Bhagirath Sharma(') a question arose whether motor car tyres were included within the meaning of the expression 'component parts and accessories of automobiles' used in a 'similar order issued in 1967 by the Bihar Government under the Essential Commodities Act.\n\nIt was held by this Court that it was not enough that fro':'1 a broad point of view the tyre~ and tubes of motor cars may be considered to be covered by the partlcular expres'sion.\n\nAfter considering and comparing the various items in the particular schedule it was held by this Court that motor car tyres were not comprehended within the expression. It is apposite for our purpose to call at-\n\n(1) [19731 3 S.C.R. 937.\n\ntention to what the Court said in that case, namely, that according to the fundamental principle of criminal jurisprudence which reflects fair play, a dealer must know with reasonable certainty and must hme a fair warning as to what his obligation is, and what act of commission or omission on his part would constitute a criminal offence.\n\nBearing in mind this principle the State Government ought to have expressed its intention clearly and unambiguously by including hydrogenated oils within items 15 and 16 which refer to 'vanaspati'. If that were done, a type of predicament which arises in this case could easily have been avoided, and with profit to the community.\n\nWe hope this lacu.na in the schedule will be rectified expeditiously.\n\nIt is to be regretted but we are left with no option save to confirm the acqu.ittal, though for entirely different reasons.\n\nTherefore, while setting aside the reasoning of the liigh Court that there can be no contravention of clause 3 unless there i's also a contravention of clause 4 of the order of 1966, we dismiss the appeals and confirm the orders of acquittal on the ground of total lack of evidence showing that the respondents are dealers in 'vanaspati' and tha! they had kept 'vanaspati' for sale in their shops.\n\nS.R.\n\nAppeals dismissed.", "total_entities": 88, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "HANS RAJ DEPAR ETC", "label": "RESPONDENT", "start_char": 22, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ DEPAR ETC", "offset_not_found": false}}, {"text": "February 25, 1977", "label": "DATE", "start_char": 43, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "February 25, 1977\n\n(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 63, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 82, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "s. 3", "label": "PROVISION", "start_char": 413, "end_char": 417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 429, "end_char": 433, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 561, "end_char": 571, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 991, "end_char": 1000, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1101, "end_char": 1105, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 1145, "end_char": 1151, "source": "ner", "metadata": {"in_sentence": "The four respondents, shopkeepers in Bombay-some run grocery shops, while some deal only in oils of different varieties-were charged for the offence of failure to display prices of vanaspati which they were selling in their shops in tinned and loose form."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 2204, "end_char": 2212, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 2403, "end_char": 2411, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 2423, "end_char": 2431, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 2640, "end_char": 2648, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 2730, "end_char": 2740, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 2741, "end_char": 2749, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 2901, "end_char": 2909, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 3342, "end_char": 3352, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3(a)", "label": "PROVISION", "start_char": 3412, "end_char": 3423, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7( l)", "label": "PROVISION", "start_char": 3450, "end_char": 3458, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 3466, "end_char": 3497, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 3727, "end_char": 3734, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act, 1955", "statute": "the Essential Commodities Act, 1955"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 4460, "end_char": 4470, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act, 1955", "statute": "the Essential Commodities Act, 1955"}}, {"text": "Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 5116, "end_char": 5147, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "(1973) 3 S.C.R. 937", "label": "CASE_CITATION", "start_char": 6421, "end_char": 6440, "source": "regex", "metadata": {}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 6880, "end_char": 6892, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, and M. N. Shroff, for the appellant in all appeals."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 6898, "end_char": 6910, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, and M. N. Shroff, for the appellant in all appeals."}}, {"text": "G Y. S. Chitale", "label": "LAWYER", "start_char": 6947, "end_char": 6962, "source": "ner", "metadata": {"in_sentence": "G Y. S. Chitale, M. Mudgal and Rameshwar Nath, for respondent in Cr!."}}, {"text": "M. Mudgal", "label": "LAWYER", "start_char": 6964, "end_char": 6973, "source": "ner", "metadata": {"in_sentence": "G Y. S. Chitale, M. Mudgal and Rameshwar Nath, for respondent in Cr!."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 6978, "end_char": 6992, "source": "ner", "metadata": {"in_sentence": "G Y. S. Chitale, M. Mudgal and Rameshwar Nath, for respondent in Cr!."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 7133, "end_char": 7144, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These four appeals arise out of four prose- H cutions which were disposed of by a common judgment by the learned Presidence Magistrate, 25th Court, Mazgaon, B?mha.v. !"}}, {"text": "s 1", "label": "PROVISION", "start_char": 7375, "end_char": 7378, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 7886, "end_char": 7895, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 7903, "end_char": 7928, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Government", "label": "ORG", "start_char": 7955, "end_char": 7973, "source": "ner", "metadata": {"in_sentence": "Section 3 of the Essential Commodities Act, 10 of 1955, empowers the Central Government, by order, to provide for regulating or prohibiting the production, supply and distribution or trade and commerce in any essential commodity for the purposes mmtioned in sub-s. (1) thereof."}}, {"text": "s.3", "label": "PROVISION", "start_char": 8184, "end_char": 8187, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8324, "end_char": 8328, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8438, "end_char": 8442, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 8445, "end_char": 8454, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8522, "end_char": 8526, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 8568, "end_char": 8572, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8583, "end_char": 8587, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 8595, "end_char": 8626, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Clause 3(a)", "label": "PROVISION", "start_char": 8748, "end_char": 8759, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act, 1955", "statute": "the Essential Commodities Act, 1955"}}, {"text": "Schedule L", "label": "PROVISION", "start_char": 8848, "end_char": 8858, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act, 1955", "statute": "the Essential Commodities Act, 1955"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 9662, "end_char": 9672, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra", "label": "GPE", "start_char": 9739, "end_char": 9750, "source": "ner", "metadata": {"in_sentence": "The appeals filed by the State of Maharashtra against the orders of acquittal were heard and disposed of by a common judgment dated March 3, 1971 by a learned Single Judge of the High Court."}}, {"text": "March 3, 1971", "label": "DATE", "start_char": 9837, "end_char": 9850, "source": "ner", "metadata": {"in_sentence": "The appeals filed by the State of Maharashtra against the orders of acquittal were heard and disposed of by a common judgment dated March 3, 1971 by a learned Single Judge of the High Court."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 10735, "end_char": 10743, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 11172, "end_char": 11180, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 11245, "end_char": 11253, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 11265, "end_char": 11273, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 11752, "end_char": 11760, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 11792, "end_char": 11800, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 11844, "end_char": 11848, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act 1955", "label": "STATUTE", "start_char": 11856, "end_char": 11886, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "clause 3(a)", "label": "PROVISION", "start_char": 11940, "end_char": 11951, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 12068, "end_char": 12078, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Clause 4", "label": "PROVISION", "start_char": 12080, "end_char": 12088, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "clause 3(a)", "label": "PROVISION", "start_char": 12417, "end_char": 12428, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "clause 4", "label": "PROVISION", "start_char": 12464, "end_char": 12472, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "clause 3", "label": "PROVISION", "start_char": 12540, "end_char": 12548, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 12631, "end_char": 12641, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "clause 4", "label": "PROVISION", "start_char": 12643, "end_char": 12651, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "clause 3(a)", "label": "PROVISION", "start_char": 12806, "end_char": 12817, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 12940, "end_char": 12950, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 13248, "end_char": 13258, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 13318, "end_char": 13326, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13357, "end_char": 13361, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 13373, "end_char": 13404, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 13638, "end_char": 13645, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act, 1955", "statute": "the Essential Commodities Act, 1955"}}, {"text": "Hansraj Depar", "label": "RESPONDENT", "start_char": 15754, "end_char": 15767, "source": "ner", "metadata": {"in_sentence": "156 of 1973 in which the respondent is one Hansraj Depar.", "canonical_name": "HANS RAJ DEPAR ETC"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 16026, "end_char": 16036, "source": "regex", "metadata": {"statute": null}}, {"text": "K. N. Joshi", "label": "WITNESS", "start_char": 16062, "end_char": 16073, "source": "ner", "metadata": {"in_sentence": "The charge should have' been not in respect of any type of ghee but in respect of 'vanaspati' which is the item mentioned in Schedule I. The Rationing Impector, K. N. Joshi (P.W. 1), \"stated in his evidence that the respondent had not exhibited the price of 'vanaspati ghee' which again is beside the point."}}, {"text": "Kurdur", "label": "WITNESS", "start_char": 16528, "end_char": 16534, "source": "ner", "metadata": {"in_sentence": "The other witness, Sub Inspector Kurdur (P.W. 2) does say that the respondent was selling vanaspati as also oil and that there were in .his shop \"3 K. O. tins of Ravi Vanaspati, 2 K. 0."}}, {"text": "Ravi Vanaspati", "label": "OTHER_PERSON", "start_char": 16657, "end_char": 16671, "source": "ner", "metadata": {"in_sentence": "The other witness, Sub Inspector Kurdur (P.W. 2) does say that the respondent was selling vanaspati as also oil and that there were in .his shop \"3 K. O. tins of Ravi Vanaspati, 2 K. 0."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 16906, "end_char": 16916, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 17336, "end_char": 17343, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 17360, "end_char": 17391, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay Sales Tax Act and the Prevention of Food Adulteration Rules, 1965", "label": "STATUTE", "start_char": 17933, "end_char": 18005, "source": "regex", "metadata": {}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 18342, "end_char": 18367, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sub Inspector Kurdur is no expert for the purposes of this Act", "label": "STATUTE", "start_char": 18701, "end_char": 18763, "source": "regex", "metadata": {}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 19670, "end_char": 19680, "source": "regex", "metadata": {"linked_statute_text": "Sub Inspector Kurdur is no expert for the purposes of this Act", "statute": "Sub Inspector Kurdur is no expert for the purposes of this Act"}}, {"text": "Bihar Government", "label": "ORG", "start_char": 20034, "end_char": 20050, "source": "ner", "metadata": {"in_sentence": "In State of Bihar v. Bhagirath Sharma(') a question arose whether motor car tyres were included within the meaning of the expression 'component parts and accessories of automobiles' used in a 'similar order issued in 1967 by the Bihar Government under the Essential Commodities Act."}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 20061, "end_char": 20086, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "clause 3", "label": "PROVISION", "start_char": 21481, "end_char": 21489, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 4", "label": "PROVISION", "start_char": 21531, "end_char": 21539, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1977_3_7_13_EN", "year": 1977, "text": "GOVT. OF ANDHRA PRADESH & ANR. ETC. v.\n\nANNE VENKATESWARE ETC. ETC.\n\nFebruary 17, 1977\n\n[P. N. BHAGWATI AND A. C. GUPTA, JJ.]\n\nCode of Criminal Procedure, 1973, ss. 428 & 418-S. 428 whether equates undertrial detention or remand detention with 11nvrisonn11Jn.t on conviction for re111ission purposes.-Whether allows period of preventive detention to. be set off against tern1 of imprisonment on conviction-S. 418 whether 111cludes serl'ice of warrant on accused alrea<tv in detention.\n\nThe cross appeals arose from two writ petitions filed by A. V. Rao and N. V. Krishnaiahin the High Court.\n\nA. V. Rao's case \\vas that while he was already in oreventive detention. on December 18. 1969. a First Information Report was lodged against him in connection with so1nc Sessions cases. Some of the coaccused in these cases were produced before the Magistrate on December 19, 1969 for remand, but Rao was produced before him only in mid-April, 1970 after his release from preventive detention. The accused in the Sessions cases were thereafter convicted and sentenced, and Rao filed a writ petition asking for an order on the State (i-overnmcnt to set off u/s 428 Cr.P.C. 1973, the time between December 19, 1969 and April 13, 1970, against his term of imprisonment, treating the said period a~ the period of detention undergone by him as an undertrial prisoner, and also to take the same into\n\naccotmt, for the purpose of remission of his sentence under the Prisons Act.\n\nRao contended that he could have been produced before the Magistrate for remand on December 19, 1969. The State Government contended that Rao\n\ncould not be prcxluced before the Magistrate for remand until the period of pre ventive detention was over.\n\nIn the case of Krishnaiah, he was in detention under the MISA, when his appeal against conviction in a criminal case was dismissed by the High Court, and a warrant was issued against him on December 1, 1975, but was served on him only on December 30, 1975, when the order against him under the MISA was revoked.\n\nThe High Court rejected the petitioners' contention regarding set off under section 428 Cr.P.C. but accepted their contention regarding the benefit of remission.\n\nAllowing the appeals by the State, and partly allowing the appeals by the original writ petitioners, the Court, HELD: (1) Section 428 of the Cr. P.C., 1973 only provides that the period of detention of an accused as undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction. It does not equate an ''undertrial detention or remand detention with imprisonment on convicti'on\" or do away with the difference in the two kinds of detention and put them on the .same footing for all purposes.\n\n[11 B-C] G. V. Godse v. State of Maharashra, [1961] 3 SCR 440; 446, referred to.\n\n(2) S. 428 expressly says that the \"period of detention\" mentioned refers to the detentio~ .durin¥ the investigation, enquiry or trial in connectin with the. same .case tn wp1ch ~e accused prson has been convicted.\n\nThe period dunng which the writ petitioners were in preventive detention cnn11ri-t br> set off under section 428 against the term of imprisonment imposed on them [llG\n\n12-A-EJ . '\n\n(3) SectiOf! 418 does not exclude a case \\Vhere the \\varra, nt concerns an\n\naccue.d wo 1s. already in detention.\n\nWe have not been referred to anv prov1s1on etthcr 1n the Cr. P.~. or in the MTSA which requires the service 0f the Wa!fant to be delayed unttl. after the pr!od of preventive detention is over.\n\nH There 1s no bar to the preventive and punitive detention continuing simultaneously. [13A-B, CJ\n\n2~240SCI/77\n\nHarad!zan Saha & Anr. v. State of West Bengal & Ors. [1975] 1 SCH .. 778, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 418-419 and 484-485/76.\n\n(From the Judgment and Order dated 6-7-1976 of the Andhra Pradesh High Court in Writ Petition Nos. 1865, 1870 of 1976 respectively.)\n\nP. Parn:eswara Rao, G. Narayana Rao and A. K. Ganguli, for the appellants m Cr!. Appeals Nos. 418-419/76 and respondents in Crl.\n\nAppeals Nos. 484-485/76.\n\nR. K. Jain, for the appellant in Cr!. A. No. 484/76 and respondent in Cr!. A. No. 418/76.\n\nS. L.aks!111; inarasu, for the appellant in Cr!. A. Ne. 485/76 and for respondent in Cr!. A. No. 419/76.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J.-These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allO\\ving two writ petitions, writ petition No. 1865 of 1976 filed by A. V. Rao, and writ petition No. 1870 of 1976 made by N. V. Krishnaiah.\n\nThe High Court rejected the petitioners' prayer for setting off under section 428 of the Code of Criminal Procedure, 1973 the periods during whk:h they \\\\\"ere in preventive detention against the tcrn1 of ilnprisonn1ent imposed on thein on their conviction in a sessions trial, but accepted their contention that they were entitled to the benefit of the remission system under the Prisons Act, 1894 for the period during which they were in jail as undertrial prisoners before their conviction : Criminal Appeals Nos. 418 and 419 of 1976 by State of Andhra Pradesh are di, rected against the part of the High Court's Judgment granting the writ petitioners the benefit of the remission system under the Prisons Act treating for this purpose the period of undertrial detention on the same footing as a term of imprisonment on conviction.\n\nAppeal No. 418 arises out of writ petition No. 1865 of 1976 filed by A. V. Rao and Appeal No. 419 is from writ petition No. 1870 of 1976 made by N. V. Krishnaiah.\n\nThe writ petitioners have also filed appeals against the part of the Judgment disallowing their prayer for set off under section 428 of the Code of Criminal Procedure.\n\nCriminal Appeals Nos. 484 and 485 of 1976 are by A. V. Rao and N. V. Krishnaiah respectively.\n\nAll the four appeals are on certJficate G of fitness granted by the High Court.\n\nThe relevant facts are as follows.\n\nA. V. Rao, appellant in appeal 484 of 1976 and respondent in appeal 418 of 1976, was in detention under the Preventive Detention Act when on December 18, 1969 a first information report was filed naming him among others as an accused in a case involving H offences under section 121A and 120B read with section 395, and section 120B read with section 44 7 of the Indian Penal Code, which gave rise to sessions cases Nos. 106 of 1970 and 6 of 1_971 on the file of the Additional Sessions Judge, Hyderabad. The detention order under\n\n; the preventive detention law was revoked by the State Government A •On April 11, 1970 and Rao was released on the next day, April 12.\n\nHe was then produced before the magistrate in connection with the sessions cases on April 13, 1970; there is some doubt about this date .because the record at some plru:es mentions !he date as April 18, but •lhe discrepency is not of any significance on the questions arising for .decision in these appeals.\n\nOn April 10, 1972 Rao was convicted .along with .others and sentenced to various terms of imprisonment for B the offences charged against him; the maximum sentence was rigorousimprisonment for four years. . The sentences were directed to run .concurrently. His appeal against the order of conviction was dismissed by the High Court on November 28, 1975.\n\nHe filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, C l 970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire 'period during which he was in detention\n\nfor the purpose of remission of his sentence under the Prisons Act.\n\nThe petitioner further claimed that had he been free at the time when the F.I.R. was lodged on December 18, 1969, he would have surrendered inunediately and would have been produced before he D <Court for remand on the next day as some of the co-accused in the case had been it was submitted that if the \"concerned authority\" who could but did not \"take immediate and necessary steps to produce the petitioner\" before the magistrate, the petitioner should not be made to suffer.\n\nThe facts of N. V. Krishnaiah's case am similar. Krishnaiah, E appe\\lant in appeal No. 485 and respondent in appeal No. 419, was also an accused in the sessions cases l 06 of 1970 and 6 of 1971 with A. V. Rao and othero.\n\nHe however was not in detention when the F. I. R. was lodged.\n\nHe was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972.\n\nHe was also convicted by the Additional Sessions Judge on April 10, 1972 and the maximum F sentence in his case too was rigorous imprisonment for four years.\n\nHe also preferred an appeal to the High Court against the order of conviction.\n\nThe High Court granted him bail and he was released on bail on April 29, 1972., He was arrested under the Maintenance of Internal Security Act, 1971 on June 26 197 5.\n\nThe High Court dismissed the appeal on November 28, 197'.s.\n\nA warrant of arrest issued by the Additional Sessions Judge on December l 1975 was G served on him on December 30, 1975, on which date the detention order under the Maintenance of Internal Security Act wais also revoked.\n\nOn these Krishnaiah in •his writ petition sought an order on the State of Andhra Pradesh to treat the \"period from June 26, 1975 to November 28, 1975 as remand period\" and to set off under section 428 of the Coe of Crim!nal Proedure this period during which ]1e was under .Prevenlive etnlio!1, agamst '.he term of imprisonment H llllposed on him on conv1ction m the sessions cases. It was also contended that the; warrant issued by the Additional Sessions Judge <lll December 1, 1975 should have been served on him immediately,\n\nthat it was no fault of his that \"the concerned authority\" .chose to. serve the warrant on December 30, 1975, and that during this peliod of one month he should be deemed to have been serving the sentence imposed on him.\n\nA further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence nnder the Prisons Act, The question for consideration in appeals 418 and 419 of 1976 preferred by the State of Andhra Pradesn 1s, whether the period of detention nndergone by the two writ petitioners in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remission of their sentences under the Prisons Act.\n\nThe Prisons Act, as its preamble shows, is an Act to \"amend the law relating to prisons\" and to \"provide rnles for the regulation of such prisons\".\n\nSection 3(5) of the Act defines \"remission system\" as the \"rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jail\". Section 59 of the Prisons Act provides that the State Government may make rules consistent with the Act in respect of the various matters specified in clauses (1) to (28) of the section; under clause (5) of section 59 the State Government is authorised to make rules \"for the award of marks and the shortening of sentences\". In their writ petitions both the petitioners speak of remission under the \"prison rules\" without specifying any rule nnder which relief is sought.\n\nThe High Court viewed the question in this way : Sec. 428 Cr!. P. C. clearly ordains that the remand detention shall be set off against the term of imprisonment imposed on the accused person on conviction. The section further clarifies that the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.\n\nIn other words, the statute equates the nnder trial detention or remand detention with imprisonment on conviction.\n\nThe provision, in so many words, treats the remand detention as part of the period of imprisonment after conviction. If remission.s are given for imprisonment after conviction, there is no plausible or understandable reason why it should be denied to the remand period when the statute equates both of them.\" The High Court accordingly held that all the remissions that are available or permissible to the two petitioners in regard to imprisonment on conviction are available to them even in respect of the remand period and directed the authorities \"to work out these remission and give the benefit to the petitioners\".\n\nWe do not consider the view taken by the High Court on 1his point cs correct.\n\nSection 428 of the Code of Criminal Procedure, 1973 is in these terms :\n\nPeriod of detention undergone by the accused to be set off against the sentence of imprisonment.\n\n\"428. Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on hirtl on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment im_posed on him.\"\n\n:Section 428 provides that the period of detention of an accused as an nndertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.\n\nThe section only provides for a \"set -0ff\", it does not equate an \"undertria! detention or remand detention with imprisonment on conviction\".\n\nThe provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of detention and puts them on the .same footing for all purposes.\n\nThe basis of the High Court's decision does not, therefore, seem to be right.\n\nApart from that, the Prisons Act does not cofer any right upon the prisoner to claim remission.\n\nIt was pointed out in G. V. Godse\n\nv. State of Maharashtra(') that \" .... the Prisons Act does not confor on any authority a power to commute or remit sentences, it pro- -vides only for the regulation of prisons and for the treatment of prisoners confined therein.\n\nSection 59 of the Prisons Act confers a power on the State Government to make rules, inter alia., for rewards for good conduct.\n\nTherefore, the rules made under the Act should be construed within the scope of the ambit of the Act.\" It was explained that the rules under the Prisons Act do not substitute a lesser sentence for a sentence awarded by the court. The rules enable a prisoner to earn remissions but, as held in G. V. Godse's case, the question of remission is exclusively within the province of the appropriate Government. If the Government decides to remit the punishment to which a person has been sentenced, the remission may be worked out according to the rules framed under the Prisons Act.\n\nThis being the position, appeals 418 and 419 of 1976 must succeed.\n\nThe remaining two appeals, 484 and 485 of 1976, preferred respectively by Rao and Krishnaah, may now be taken up for consideration.\n\nThe claim in both these appeals is that the period of detention undergone by each appellant under the preventive detention Jaw should be set off under section 428 of the Code Criminal Procedure against the term of imprisonment imposed on them on their convi'Ction in the aforesaid sessions cases. The argnment is that the expression \"period of detention\" in section 428 includes detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It is true that the section speaks of the \"period of , detention'' undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted.\n\nThe section makes it clear that the period of detention which it allows to be set off against-the term of imprisonment\n\n(1) \\1961] 3 S.C.R. 440, 446.\n\nG •\n\nSUPREME COUR\"E REPORTS:\n\n[1977] 3 S.C.R ..\n\nA imposed on the accused on conviction must be: during the investigation, enquiry or trial in connection with. the \"same case\" in which he has been convicted. We therefore agree with. the High Court that the period during which the writ petitioners were. \"in preventive detention cannot be set_ off under section 428 against the term of imprisonment imposed on them.\n\nThere is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each case should be held to have suffered imprisonment on conviction.\n\nIn A. V. Rao's case (W.P. 1865/76), he was. already in detention under the Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions cases.\n\nSome of the co-accused ;•n these cases were arrested and produced before the magistrate for remand on December 19, 1969, but Rao was produced before the magistrate sometime in April, 1970 after he was released from preventive detention. n was argued that he also could have been produced before the magistrate for remand on December 19, 197U.\n\nOn behalf of the respondent, State of Andhra Pradesh, it was contended tfiat as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the magistrate for remand until the period of preventiveJ detention was over; we do not find any justification in law for the position taken up by the !State.\n\nRao being already in custody, the authorities could have easily produced him• before the magistrate when the flrst Tnformatfon Report was lodged.\n\nNothing has been pointed out to ns either fn the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to snch a course.\n\nThat being so we think that the claim that the entire period from December 19, 1969, when many of (he co-accused were produced before the magistrate to Aprif 18; 1970 should be treated as part of the period during which Rao was under detention\" as an under trial prisoner, must be :accepted as valid.\n\nA. V. Rao's Appeal No. 484 of 1976 is allowed to this extent.\n\nIn the case of N. V. Krishnaiah, the Additional Sessions Jiidge, Hyderabad, issued a warrant on December 1, 1975 after his appear against conviction was dismissed by the High Court on November 28, 1975.\n\nThe: warrant, however, was served on him only on December 30, 1975 on which date the order under maintenance of Internal' Security Act was revoked.\n\nIt is claimed that the warrant could' have been served immediately on that dismissal of the appeal on November 28, 1975 ancl the accused was not responsible if the authority concerned chose to serve the warrant on him Off December 30, 1975.\n\nIn this case also, the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krislmaiah to jail consequent on his conviction in the session cases until the period of his detention under the Maintenance of Internal' Security Act was over. We do not see why that should be so. Section 418 requires the court passing the sentence to forthwith forward a warrant to the jail or other place in which he (accused) is, or is to be, con-· fined, and, unless the , accused is already confined in such jail or other\n\nplace, shall forward h:•m to such jail or other place, with the warrant\".\n\nSection 418 thus does not exclude a case where the warrant concerns an accused who is already in detentionc On behalf of the State it was sought to be argued that if the warrant wa~ served on Krishnaiah immediately after his conviction was upheld by the High Court in appeal, the position would have been anomalous, because then he would have been in detention both under the preventive detention law and as a convicted accused in a criminal case. We have not been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Security Act which requires the service of the warrant to be delayed until after the period of preventive detention is over.\n\nAs regards the alleged anomaly of ru man having to suffer two kinds of detention at the same time, one preventive and the other pnnitive, we do not find this to be a valid objection.\n\nThe position is not different from the case where a man is sentenced , on different counts to a term of rigorous imprisonment and another term of simple imprisonment, and the sentences are directed to run concurrently.\n\nCounsel for the State referred us to the decision in Haradhan Saha and another v. The State of West Bengal & others,(') in support of his contentil'.m.\n\nIn our opinion this case does not help him at all.\n\nWhat was held in this case was, inter alia that the nature of preventive detention is entirely different from punitive detention, and there is no bar to a man being detained under the preventive detention Jaw when a criminal proceeding for the offences on which the preventive detention is based is pending.\n\nIf that be so, there can be no bar to the preventive and punitve detentions continuing simultaneously. We therefore allow appeal No. 485 of 1976 to the extent tbat Krishnaiah should be taken to have serving the sentence imposed on hi~ from December 1, 1975.\n\nIn the result the criminal appeals Nos. 418 and 419 of 1976 5y the State of Andhra Pradesh are allowed, and the appeals Nos. 484 ; md 485 of 1976 preferred respectively by A. V. Rao and N. V.\n\nKrishnaiah are allowed to the extent indicated aove.\n\nM. R.\n\nA]'Jpeals allowed.\n\n(I) [1975] I S.C.R. 778.", "total_entities": 94, "entities": [{"text": "GOVT. OF ANDHRA PRADESH & ANR. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "GOVT. OF ANDHRA PRADESH & ANR. ETC", "offset_not_found": false}}, {"text": "ANNE VENKATESWARE ETC. ETC", "label": "RESPONDENT", "start_char": 40, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "ANNE VENKATESWARE ETC. ETC", "offset_not_found": false}}, {"text": "February 17, 1977", "label": "DATE", "start_char": 69, "end_char": 86, "source": "ner", "metadata": {"in_sentence": "February 17, 1977\n\n[P. N. BHAGWATI AND A. C. GUPTA, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 89, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. C. 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"source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 11, 1970", "label": "DATE", "start_char": 6555, "end_char": 6569, "source": "ner", "metadata": {"in_sentence": "The detention order under\n\n; the preventive detention law was revoked by the State Government A •On April 11, 1970 and Rao was released on the next day, April 12."}}, {"text": "April 10, 1972", "label": "DATE", "start_char": 6931, "end_char": 6945, "source": "ner", "metadata": {"in_sentence": "On April 10, 1972 Rao was convicted .along with .others and sentenced to various terms of imprisonment for B the offences charged against him; the maximum sentence was rigorousimprisonment for four years. ."}}, {"text": "November 28, 1975", "label": "DATE", "start_char": 7263, "end_char": 7280, "source": "ner", "metadata": {"in_sentence": "His appeal against the order of conviction was dismissed by the High Court on November 28, 1975."}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 7346, "end_char": 7374, "source": "ner", "metadata": {"in_sentence": "He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, C l 970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire 'period during which he was in detention\n\nfor the purpose of remission of his sentence under the Prisons Act."}}, {"text": "section 428", "label": "PROVISION", "start_char": 7392, "end_char": 7403, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 7411, "end_char": 7443, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "April 13, C l 970", "label": "DATE", "start_char": 7483, "end_char": 7500, "source": "ner", "metadata": {"in_sentence": "He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, C l 970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire 'period during which he was in detention\n\nfor the purpose of remission of his sentence under the Prisons Act."}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 7760, "end_char": 7771, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 18, 1969", "label": "DATE", "start_char": 7869, "end_char": 7886, "source": "ner", "metadata": {"in_sentence": "The petitioner further claimed that had he been free at the time when the F.I.R. was lodged on December 18, 1969, he would have surrendered inunediately and would have been produced before he D <Court for remand on the next day as some of the co-accused in the case had been it was submitted that if the \"concerned authority\" who could but did not \"take immediate and necessary steps to produce the petitioner\" before the magistrate, the petitioner should not be made to suffer."}}, {"text": "December 21, 1969", "label": "DATE", "start_char": 8650, "end_char": 8667, "source": "ner", "metadata": {"in_sentence": "He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972."}}, {"text": "April 9, 1972", "label": "DATE", "start_char": 8671, "end_char": 8684, "source": "ner", "metadata": {"in_sentence": "He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972."}}, {"text": "was arrested under the Maintenance of Internal Security Act, 1971", "label": "STATUTE", "start_char": 9009, "end_char": 9074, "source": "regex", "metadata": {}}, {"text": "June 26 197 5", "label": "DATE", "start_char": 9078, "end_char": 9091, "source": "ner", "metadata": {"in_sentence": "He was arrested under the Maintenance of Internal Security Act, 1971 on June 26 197 5."}}, {"text": "November 28, 197'.s", "label": "DATE", "start_char": 9133, "end_char": 9152, "source": "ner", "metadata": {"in_sentence": "The High Court dismissed the appeal on November 28, 197'.s."}}, {"text": "section 428", "label": "PROVISION", "start_char": 9566, "end_char": 9577, "source": "regex", "metadata": {"linked_statute_text": "He was arrested under the Maintenance of Internal Security Act, 1971", "statute": "He was arrested under the Maintenance of Internal Security Act, 1971"}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 10275, "end_char": 10286, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Andhra Pradesn", "label": "ORG", "start_char": 10367, "end_char": 10390, "source": "ner", "metadata": {"in_sentence": "A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence nnder the Prisons Act, The question for consideration in appeals 418 and 419 of 1976 preferred by the State of Andhra Pradesn 1s, whether the period of detention nndergone by the two writ petitioners in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remission of their sentences under the Prisons Act."}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 10662, "end_char": 10673, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 10680, "end_char": 10691, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3(5)", "label": "PROVISION", "start_char": 10825, "end_char": 10837, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 59", "label": "PROVISION", "start_char": 11019, "end_char": 11029, "source": "regex", "metadata": {"statute": null}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 11037, "end_char": 11048, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 59", "label": "PROVISION", "start_char": 11226, "end_char": 11236, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 428", "label": "PROVISION", "start_char": 11541, "end_char": 11549, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 428", "label": "PROVISION", "start_char": 12713, "end_char": 12724, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 12732, "end_char": 12764, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 428", "label": "PROVISION", "start_char": 13384, "end_char": 13395, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1973", "statute": "the Code of Criminal Procedure, 1973"}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 13999, "end_char": 14010, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 14153, "end_char": 14164, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 59", "label": "PROVISION", "start_char": 14341, "end_char": 14351, "source": "regex", "metadata": {"statute": null}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 14359, "end_char": 14370, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 14615, "end_char": 14626, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "G. V. Godse", "label": "OTHER_PERSON", "start_char": 14763, "end_char": 14774, "source": "ner", "metadata": {"in_sentence": "The rules enable a prisoner to earn remissions but, as held in G. V. Godse's case, the question of remission is exclusively within the province of the appropriate Government."}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 15035, "end_char": 15046, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Krishnaah", "label": "OTHER_PERSON", "start_char": 15199, "end_char": 15208, "source": "ner", "metadata": {"in_sentence": "The remaining two appeals, 484 and 485 of 1976, preferred respectively by Rao and Krishnaah, may now be taken up for consideration.", "canonical_name": "Krishnaiah"}}, {"text": "section 428", "label": "PROVISION", "start_char": 15401, "end_char": 15412, "source": "regex", "metadata": {"statute": null}}, {"text": "section 428", "label": "PROVISION", "start_char": 15608, "end_char": 15619, "source": "regex", "metadata": {"statute": null}}, {"text": "1961] 3 S.C.R. 440", "label": "CASE_CITATION", "start_char": 16122, "end_char": 16140, "source": "regex", "metadata": {}}, {"text": "section 428", "label": "PROVISION", "start_char": 16502, "end_char": 16513, "source": "regex", "metadata": {"statute": null}}, {"text": "December 19, 197U.", "label": "DATE", "start_char": 17319, "end_char": 17337, "source": "ner", "metadata": {"in_sentence": "n was argued that he also could have been produced before the magistrate for remand on December 19, 197U.\n\nOn behalf of the respondent, State of Andhra Pradesh, it was contended tfiat as Rao was already in detention under the Preventive Detention Act, it was not possible to produce him before the magistrate for remand until the period of preventiveJ detention was over; we do not find any justification in law for the position taken up by the !"}}, {"text": "Rao was already in detention under the Preventive Detention Act", "label": "STATUTE", "start_char": 17419, "end_char": 17482, "source": "regex", "metadata": {}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 17914, "end_char": 17940, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Additional Sessions Jiidge, Hyderabad", "label": "COURT", "start_char": 18392, "end_char": 18429, "source": "ner", "metadata": {"in_sentence": "In the case of N. V. Krishnaiah, the Additional Sessions Jiidge, Hyderabad, issued a warrant on December 1, 1975 after his appear against conviction was dismissed by the High Court on November 28, 1975."}}, {"text": "Krislmaiah", "label": "OTHER_PERSON", "start_char": 19062, "end_char": 19072, "source": "ner", "metadata": {"in_sentence": "In this case also, the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krislmaiah to jail consequent on his conviction in the session cases until the period of his detention under the Maintenance of Internal' Security Act was over.", "canonical_name": "Krishnaiah"}}, {"text": "Section 418", "label": "PROVISION", "start_char": 19260, "end_char": 19271, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 418", "label": "PROVISION", "start_char": 19566, "end_char": 19577, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 20071, "end_char": 20097, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "N. V.\n\nKrishnaiah", "label": "OTHER_PERSON", "start_char": 21621, "end_char": 21638, "source": "ner", "metadata": {"in_sentence": "484 ; md 485 of 1976 preferred respectively by A. V. Rao and N. V.\n\nKrishnaiah are allowed to the extent indicated aove.", "canonical_name": "N. V. Krishnaiahin"}}]}
{"document_id": "1977_3_85_90_EN", "year": 1977, "text": "ASSESSING AUTHORITY, PATIALA DISTRICT PATIALA AND A\n\nORS.\n\nM/S. PATIALA BISCUITS MFG. CO. NOW AS DALMIA\n\nBISCUIT PVT. LTD.\n\nMarch 1, 1977\n\n[P. N. BHAGWAT!, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.]\n\nPunjab General Sales Tax Act, 1948-Assessee entitled to certain deductions if seller and buyer are negisflered dealers-Both applied for registration-('crtificates issued later ttdth retrospective effect-Dealers-If sl1011/d be in physical possession of registration certificate at the ti1ne of sale to claini deduction.\n\nAccording to s. 5(2) (a) (ii) of the Punjab General Sales Tax Act, 1948, tnxable turnover means the part of a dealer's gross turnover during any period which remains after deducting therefron1 the turnover <luting that period, on sales to a registered .dealer of goods declared by him in a prescribed form as being intended for re-sale in the State. Section 7 ( 1) provides that no dealer shall carry on business as a dealer unless he has been registered and possesses a registration certificate. Rule 5 of the Punjab Geti.eral Sales Tax Rules, 1949'\n\nas amended in October 1966 provids that the certificate of registration issued D by the Assessing Authority shall be valid from the date of receipt by him of the application for registration or from the date of commencement of the liability to pay tax whichever is later.\n\nRule 26 provides that a dealer claiming deduction under s. 5(2) (a) (ii) shall produce on demand the cash memos or bill and\n\na declaration in writing. by the purchasing dealer that the goods specified in the certificate of registration are for use by him. ·\n\nThe assessee (respondent) and the purchasing dealer, the sole selling agent of the assessee, made applications on January 1, 1966 for registration as dealers.\n\nE The registration certificates were issued to them on March 27, 1966 with retro\n\nspective effect from January 1, 1966.\n\nThe Assessing Authority rejected the assessee's claim for deduction under s. 5(2)(a)(ii) of sales made by them to the purchasing dealer on the ground that during the period between January 1 and March 31, 1966, the purchasing dealer was not in possession of the registration certificate.\n\nIn a petition under Art. 226 of the Constitution the High Court held that F since t?e certificate of regitraion ?ad been granted :with effect from January 1, 1966, 1.e. the date of application, it could not be said that the sales during the quarter were to an unregistered dealer.\n\nOn appeal it was contended that to be entitled to deduction under the Act both the purchasing and .selling dealers should be in physical possession of the registration certificate at the time of sale.\n\nDismissing the appeal, G\n\nHELD: The assessees were entitled to deduction under s. 5(2) (a) (ii) in respect of sales made by them to the purchasing dealer during the quarter.\n\n[90 0]\n\n(a) At te re!evant tme, the registering auhority was fully competent to issue the !eg1stration cer~1ficte to the dealer with retrospective effect fron1 the date of filinc: of the application. The amendment of r. 5 made in October 1966 did not c_onfe.r any new or additional power on the registering authority but V.'as H -Only clarrficatory of the law. .The language of s. 7 is clear that the registering authority had the power to give effect to the registration from the date of making the application. [90 F; A]\n\n(b) The \\Vords \"has been registered and possesses a registration certificate\"\n\ni:._1 s. ,7 ( 1) should be construed in accord \\Vith the general tenor of the section as a \\Vhole, and in a manner which would avoid oppressive, unreasonable and nnomalous results.\n\nSo construed it could never be the intention of the legislature that a dealer liable to pay tax, who has in compliance with the requirements of s. 7(2) and (3) done all which lay in his power to obtain the registration certificate, should pull down his shutters and keep his business closed under pain of being punished and await indefinitely the pleasure and leisure of the prescribed authority in issuing the registration certificate.\n\nAdoption of such a construction '\"'ould be to make an applicant liable to punishment for the laches and delays of the authority and its office.\n\n[90 BCJ\n\nChandra Industries v. The Punjab State & Ors. 29, S.T.O. 558, approved.\n\n( c) The requirement ofr. 26 will be substantia1ly satisfied if the number of the registration certificate is supplied by the claimant alongwith the dec1aration oi the purchasing dealer at the time of assessment to the Assessing Authority.\n\n[90 El\n\nC!v1L APPELLATE JURISDICTION: Civil Appeal No. 721 of 1972.\n\n(From the Judgment and Order dated 13.10.1970 of the Punjab & Haryana High Court in Civil Writ No. 1831of1968).\n\nK. S. Suri, for the appellants.\n\nR. S. Sharma and A. D. Mathur, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-The short question involved in this appeal on certificate, directed against a judgment of the High Court of Punjab and Haryana is : Whether the sales made to a dealer who has applied for registrat10n under the Punjab General Sales Tax Act 1948, before his application is allowed, are to be treated as sales to an unregistered dealer or registered dealer, when the registration is effected from the date of the application ?\n\nM/s. Paliala Biscuits Manufacturers Pvt. Ltd. (hereinafter referred to as the assessees) appointed M/s. Rajpura Biscuit Company as their F sole selling agents.\n\nThe agents made an application on 1.1.1966 in the appropriate form for regis!ration as a dealer under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act).\n\nOn the same day. the agents (referred hereafter as the purchasing dealer) made a im1lar application for obtaining registration certificate under the Central Sales T.ax Act.\n\nThe appropriate Assessing Authority accepted both these applications and on March 27, 1966 issued the G registration Certificate with effect from 1.1.1966.\n\nThe assessees filed their return for the quarter ending March 31, 1966 in April, 1966 and claimed deductions under s. 5(2) (a) (ii) in respect of sales of the value of Rs. 32,56,267.35 made by them between 1-1-1966 to 31-3-1966 to the purchasing dealer. The Assessing Authority, Patiala rejected this claim and assessed tax, amounting to Rs. 1,99,558.94. on the proceeds of the sales made by the assessees to the purchasing dealer between 1.1.1966 and 27.3.1966.\n\nThe reason eiven by the Assessing Authority for refusing this relief to the assessees\n\n\\as that during this period, the purchasing dealer was not in possession\n\nof the registration certificate, the same having been issued only on A March 27, 1966 .\n\n. The asse, sccs impugned the validity of this order of the Assessing Authority by a writ petition in the High Court, under Articles 226/227 of the Constitution.\n\nThe High Court held that since the certificate of registration had been granted with effect from 1-1-1966, which was the date of the application, it could not be said that the sales during B this period commencing from 1.1.1966, were made to an unregistered dealer.\n\nIt further noted that apart from the a>sessees, the purchasing dealer had also, been taxed with regard to the same transactions resulting in double taxation which was against the basic scheme of the Act, the Rules and the notifications issued thereunder.\n\nOn these premises, the High Court allowed the writ petition and quashed the impugned order to the extent to which it was contrary to s.5(2) (a) (ii) c of the Act m respect of sales made between 1.1.1966 and 27.3.1966.\n\nThe High Court however granted a certificate under Art. 133(1) (a) and ( c) of the Constitution, on the basis of which the Revenue has come in appeal to this Court.\n\nIt would be appropriate to have, at the outset, a look at the relernnt prm 1sions of the Act and the Rules.\n\nThe material provision is in s. 5 (2) (a) (ii) which reads as under:\n\n\"In this Act the expression \"taxable turnover\" means the part of a dealer's gross turnover during any period which remains after deducting therefrom :\n\n(a) his turnover during that period on-\n\n(i)\n\n(ii) oaks to a registered dealer of goods .... declared ty him in a prescribed form as being intended' for re-sale in the Slate of Punjab ....... .\n\nProvided that in case of such sales, a declaration duly filled up and signed by the register dealer to whom the goods are sold and containing prescribed particulars on a prescribed form (obtained from the vrescribed authority) is furnished by the dealer who sells the goods.\"\n\nSeetion 7 provides for the registration of dealers. It says :\n\n\" ( l ) No dealer shall, while being liable to pay tax under this Act, carry on business as a dealer unless he has been registered and possesses a registration certificate.\n\n(2) Every dealer required by sub-section (1) to be reRistered dealer shall make application in this behalf in the prescribed manner to the prescribed authority.\n\n(3) If the said authority is satisfied that an application for registration is in order, he shall, in accordance with 7--240SCll77\n\n( .+)\n\nsuch rules and on payment of such fees as may be prescribed, register the application and grant him a certificate of registration in the prescribed forms which may specify the class or classes of goods for lhe purpose of sub-<:lause (ii) of clause (a) of subsection (2) of section 5.\n\n(5) When any dealer has paid the amount of penalty imposed under s. 23 in respect of any contravention of sub-section (I) of this section, the Commissioner shall register such dealer and grant him a certificate of registration, and such registration shall take effect as it had been made under sub-section (3) of this section on the dealer's application.\n\n(6)\n\nIn case a dealer commits default is not getting himself registered as required by Sec. 7, certain consequences follow.\n\nUnder s.11 (6) such a defaulting dealer is liable to be assessed on the basis of best judgment and the Assessing Auihority may, in addition to the tax so assessed, impose on him by way of penalty a sum not exce('ding one and half times that amount.\n\nSuch a defaulter is further liable to prosecution under s. 23 (1) for carrying on business as a dealer in contravention of the provisions of s. 7 ( 1), and on conviction, he can be sentenced to fine not exceeding Rs. 1,000/-.\n\nThe application for registration has to be made to the appropriae 't-· Authority in the prescribed Form.\n\nThe. manner in which such an ,;. application 1s to be. dealt with by the Authority is provided in Rule 5 of the Punjab General Sales Tax Rules, 1949 framed under the Act.\n\nThis Rule as it stood before the amendment of October 10, 1966 was as follows :\n\n\"Wlien the appropriate Assessing Authority, after making any enquiry that he may think necessary, is satisfied that the applicant is a bona fide dealer and has correctly given all the. requisite information that he has deposited the registration fee into the appropriate Government treasury and that the application is in order, he shall register the dealer and shall bsue a certificate of registration in Form S.T.TTI or S.T.\n\nIV according as the dealer has one or more than one place of business in Punjab.\"\n\nRule 5 was amended by Punjab Government Notification No. GSR- 237 /PA 46/48/S-27 / Amd(5) /66 dated 10th October, 1966, and in place of the last sentence commencing with the words \"in Form H S.T .... \" of the old Rule, the following was substituted :\n\n\"_ ... in Form S.T. IV which shall be valid from the date of receipt of application for registration by the Assessing Authority m from the date of commencement of the liability to pay tax, whichever is later.\"\n\ny Rule 26 provides :\n\n\"A dealer, who wishes to deduct from his gross turnover the amount in respect of a sale on the ground that he is entitled to make such deduction under the provisions of subclause (i.i) of clause (a) of sub-section (2) of section 5 of the Act, shall, on demand, produce in respect of such a sale the copy of the relevant cash memo or bill, according as the sale is a cash sale or a sale on credit, and a declaration in writing in Form S.T. XXII by the purchasing dealer or by his agent, that the goods in question are intended for re--saJe, in the State of Punjab or such goods are specified in his certificate uf registration for use by him in the manufacture in the State of Punjab of any goods for sale.\"\n\nRule 26 was also amended later. The amended Rule is, in substance, the same, excepting that it was clarified that the dealer claiming deduction has to produce the declaration of the purchasing dealer, in the prescribed form, at the time of assessment.\n\nThe main contention of Shri K. S. Snri, learned Counsel for the appellant is that the declaration form prescribed nuder the old Rule 26, as it stood at the material time, required the purchasing dealer to specify at the time of the sale, in the prescribed Form S.T. XXII, the number of the registration certificate.\n\nStrer.s has also been placed on the words \"registered and possesses\" used in snb-section (! r of Sec.\n\nE 7, which according to Counsel, indicate that a dealer having a taxable turnover, cannot validly carry on his business, unless he is actually registered and is in physical possession of the registration certificate issued under Sec. 7.\n\nA compliance with the aforesaid mandatory requirement of s. 7 ( 1) and Rule 26, Form XXII-proceeds the argument--could be possible only if at the time of the s;:tles in question, the purcha, ing dealer as well as the selling dealer, both, were in F actual possessioll of the requisite registration certificates.\n\nShri Suri lias adopted tl1e reasoning of the Sales-Tax Tribunal in Appeal No. 109 of 1967-68 (M/s. Darshan Soap Mills, Batala Road, Amritsar v.\n\nThe State) decided on 12-2-1968.\n\nIt is contended that Rule 5, as it stood at the material time, did not empower the registering Authority to grant the registration Certifiate rtroypectively1 with effect from the date of the application.\n\nIt G 1s mamtamed such a power was conferred on the Authority, only by !he Punjab Government Notification No. GSR-237 /PA 46/48/S-27 Amd. (5) /16 with prospective effect from October 10, 1966.\n\nTaking the last point first, we are of opinion that the amendment 'Of Rule 5 by the Punjab Government Notification, dated October 10\n\n1966, did not confer any new or additional power on the registering H Authority.\n\nThe power to grant the registration Certificate with effect from the date of the. application was already there.\n\nThe amendment was only clarificatory of the law as it stood prior to it.\n\nIt only\n\nmade explicit which was formerly implicit.\n\nA definite indication is available m the language of sub-section (5) read with sub-sections (2) and (3) of s. 7, itself, that the registering Authority had the power to give effect to the registration from the date of making the application. -\n\nBe that at it may, the words \"has been registered and possesses a registration certificate\" used in sub-s. ( 1) of s. 7 have to be construed in accord with the general tenor of the Section as a whole, and in a manner which would avoid oppressive, unreasonable and anomalous results.\n\nAs rightly pointed out in Chandra Industries v. The Pun; ab State and ors.( 1), it could never be the intentionof the Legislature that a dealer liable to pay tax who has in compliance with the requirements of sub-sections (2) and (3) of s. 7, \"done all which lay in his power to obtain the registration certificate, should pull down his shutters and keep his business closed under pain of being punished under s. 23 ( 1) and await indefinitely the pleasure and leisure of the prescribed authonty in issuing the registration certificate.\n\nAdoption of such a construction would be to make the applicant liable to punishment for the !aches and delays of the authority and its office.\"\n\nAs regards the requirement enjoined by the Form prescribed under Rule 26, o enter the number of the registration certificate in the deciaration of the purchasing dealer at the time of sale., the same has to be viewed with reasonable flexibility and reconciled with Rule 5 as clarified by the Notification, dated October 10, 1966.\n\nThus construed harmoniously with the related statutory provisions, the requirement of Rl!ie 26 will be substantially satisfied, if the number of the registration certificate-granted subsequent!.¥, but covering retrospectively the period of the sales in respect of which deduction is claimedis supplied by the claimant along with the declaration of the purchasing dealer al the time of assessment to the Assessing Authority.\n\nIt is thus clear as daylight that at the relevant time, also, the registering Authority was fully competent to issue the registration certificate to the dealer with retrospective effect from the date of filing the application.\n\nA perusal of the regi'stration certificate would show that it was, in terms, made effective from January 1, 1966. This is manifest from the words \"the dealer is liable to pay tax w.e.f. 1.1.1966\" used by the Authority, prominently, in the heading of the Certificate.\n\nIt necessarily follows, therefore, that during the period from 1.1.1966 to 27.3.1966, also, the purchasing dealer was a registered dealer possessing a registration Certificate within the contemplation of s. 7 ( 1) of the Act.\n\nThis being the correct position, the assessees were entitled to the deduction under s. 5(2) (a) (ii) of the Act in respect of ti:e sales made by them to the purchasing dea.ler durlng the whole of the quarter ending 31st March 1966.\n\nThe High Court was therefore, right in determining the question posed, in favour of the assessees and against the Revenue.\n\nTbe appeal fails and is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n(I) 29, S.T.O. 558.\n\n' •", "total_entities": 59, "entities": [{"text": "ASSESSING AUTHORITY, PATIALA DISTRICT PATIALA AND A", "label": "PETITIONER", "start_char": 0, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "ASSESSING AUTHORITY, PATIALA DISTRICT PATIALA AND ORS", "offset_not_found": false}}, {"text": "M/S. PATIALA BISCUITS MFG. CO. NOW AS DALMIA\n\nBISCUIT PVT. LTD", "label": "RESPONDENT", "start_char": 59, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "M/S. PATIALA BISCUITS MFG. CO. NOW AS DALMIA BISCUIT PVT. LTD", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 156, "end_char": 170, "source": "metadata", "metadata": {"canonical_name": "R. S. SARKARIA", "offset_not_found": false}}, {"text": "Punjab General Sales Tax Act, 1948", "label": "STATUTE", "start_char": 202, "end_char": 236, "source": "regex", "metadata": {}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 535, "end_char": 542, "source": "regex", "metadata": {"linked_statute_text": "Punjab General Sales Tax Act, 1948", "statute": "Punjab General Sales Tax Act, 1948"}}, {"text": "Punjab General Sales Tax Act, 1948", "label": "STATUTE", "start_char": 559, "end_char": 593, "source": "regex", "metadata": {}}, {"text": "Section 7", "label": "PROVISION", "start_char": 872, "end_char": 881, "source": "regex", "metadata": {"linked_statute_text": "the Punjab General Sales Tax Act, 1948", "statute": "the Punjab General Sales Tax Act, 1948"}}, {"text": "Sales Tax Rules, 1949", "label": "STATUTE", "start_char": 1050, "end_char": 1071, "source": "regex", "metadata": {}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 1403, "end_char": 1410, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Rules, 1949", "statute": "Sales Tax Rules, 1949"}}, {"text": "January 1, 1966", "label": "DATE", "start_char": 1720, "end_char": 1735, "source": "ner", "metadata": {"in_sentence": "The assessee (respondent) and the purchasing dealer, the sole selling agent of the assessee, made applications on January 1, 1966 for registration as dealers."}}, {"text": "s. 5(2)(a)(ii)", "label": "PROVISION", "start_char": 1961, "end_char": 1975, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Rules, 1949", "statute": "Sales Tax Rules, 1949"}}, {"text": "March 31, 1966", "label": "DATE", "start_char": 2082, "end_char": 2096, "source": "ner", "metadata": {"in_sentence": "The Assessing Authority rejected the assessee's claim for deduction under s. 5(2)(a)(ii) of sales made by them to the purchasing dealer on the ground that during the period between January 1 and March 31, 1966, the purchasing dealer was not in possession of the registration certificate."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2196, "end_char": 2204, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 2739, "end_char": 2746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3213, "end_char": 3217, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7(2)", "label": "PROVISION", "start_char": 3764, "end_char": 3771, "source": "regex", "metadata": {"statute": null}}, {"text": "K. S. Suri", "label": "LAWYER", "start_char": 4708, "end_char": 4718, "source": "ner", "metadata": {"in_sentence": "K. S. Suri, for the appellants.", "canonical_name": "K. S. Suri"}}, {"text": "R. S. Sharma", "label": "LAWYER", "start_char": 4741, "end_char": 4753, "source": "ner", "metadata": {"in_sentence": "R. S. Sharma and A. D. Mathur, for the respondent.", "canonical_name": "R. S. SARKARIA"}}, {"text": "A. D. Mathur", "label": "LAWYER", "start_char": 4758, "end_char": 4770, "source": "ner", "metadata": {"in_sentence": "R. S. Sharma and A. D. Mathur, for the respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 4837, "end_char": 4845, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-The short question involved in this appeal on certificate, directed against a judgment of the High Court of Punjab and Haryana is : Whether the sales made to a dealer who has applied for registrat10n under the Punjab General Sales Tax Act 1948, before his application is allowed, are to be treated as sales to an unregistered dealer or registered dealer, when the registration is effected from the date of the application ?"}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 4944, "end_char": 4976, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-The short question involved in this appeal on certificate, directed against a judgment of the High Court of Punjab and Haryana is : Whether the sales made to a dealer who has applied for registrat10n under the Punjab General Sales Tax Act 1948, before his application is allowed, are to be treated as sales to an unregistered dealer or registered dealer, when the registration is effected from the date of the application ?"}}, {"text": "Punjab General Sales Tax Act 1948", "label": "STATUTE", "start_char": 5060, "end_char": 5093, "source": "regex", "metadata": {}}, {"text": "Paliala Biscuits Manufacturers Pvt. Ltd.", "label": "ORG", "start_char": 5280, "end_char": 5320, "source": "ner", "metadata": {"in_sentence": "M/s. Paliala Biscuits Manufacturers Pvt."}}, {"text": "Rajpura Biscuit Company", "label": "ORG", "start_char": 5379, "end_char": 5402, "source": "ner", "metadata": {"in_sentence": "Ltd. (hereinafter referred to as the assessees) appointed M/s. Rajpura Biscuit Company as their F sole selling agents."}}, {"text": "Punjab General Sales Tax Act, 1948", "label": "STATUTE", "start_char": 5542, "end_char": 5576, "source": "regex", "metadata": {}}, {"text": "March 27, 1966", "label": "DATE", "start_char": 5858, "end_char": 5872, "source": "ner", "metadata": {"in_sentence": "The appropriate Assessing Authority accepted both these applications and on March 27, 1966 issued the G registration Certificate with effect from 1.1.1966."}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 6054, "end_char": 6061, "source": "regex", "metadata": {"linked_statute_text": "the Punjab General Sales Tax Act, 1948", "statute": "the Punjab General Sales Tax Act, 1948"}}, {"text": "Assessing Authority, Patiala", "label": "ORG", "start_char": 6197, "end_char": 6225, "source": "ner", "metadata": {"in_sentence": "The Assessing Authority, Patiala rejected this claim and assessed tax, amounting to Rs."}}, {"text": "1.1.1966", "label": "DATE", "start_char": 6378, "end_char": 6386, "source": "ner", "metadata": {"in_sentence": "on the proceeds of the sales made by the assessees to the purchasing dealer between 1.1.1966 and 27.3.1966."}}, {"text": "27.3.1966", "label": "DATE", "start_char": 6391, "end_char": 6400, "source": "ner", "metadata": {"in_sentence": "on the proceeds of the sales made by the assessees to the purchasing dealer between 1.1.1966 and 27.3.1966."}}, {"text": "Articles 226", "label": "PROVISION", "start_char": 6777, "end_char": 6789, "source": "regex", "metadata": {"statute": null}}, {"text": "1-1-1966", "label": "DATE", "start_char": 6913, "end_char": 6921, "source": "ner", "metadata": {"in_sentence": "The High Court held that since the certificate of registration had been granted with effect from 1-1-1966, which was the date of the application, it could not be said that the sales during B this period commencing from 1.1.1966, were made to an unregistered dealer."}}, {"text": "s.5(2)", "label": "PROVISION", "start_char": 7472, "end_char": 7478, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 7609, "end_char": 7620, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 7862, "end_char": 7866, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab", "label": "GPE", "start_char": 8232, "end_char": 8238, "source": "ner", "metadata": {"in_sentence": "The material provision is in s. 5 (2) (a) (ii) which reads as under:\n\n\"In this Act the expression \"taxable turnover\" means the part of a dealer's gross turnover during any period which remains after deducting therefrom :\n\n(a) his turnover during that period on-\n\n(i)\n\n(ii) oaks to a registered dealer of goods .... declared ty him in a prescribed form as being intended' for re-sale in the Slate of Punjab ....... ."}}, {"text": "section 5", "label": "PROVISION", "start_char": 9338, "end_char": 9347, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 9415, "end_char": 9420, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7", "label": "PROVISION", "start_char": 9793, "end_char": 9799, "source": "regex", "metadata": {"statute": null}}, {"text": "s.11", "label": "PROVISION", "start_char": 9837, "end_char": 9841, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 10137, "end_char": 10142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 10222, "end_char": 10226, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab General Sales Tax Rules, 1949", "label": "STATUTE", "start_char": 10526, "end_char": 10562, "source": "regex", "metadata": {}}, {"text": "October 10, 1966", "label": "DATE", "start_char": 10632, "end_char": 10648, "source": "ner", "metadata": {"in_sentence": "This Rule as it stood before the amendment of October 10, 1966 was as follows :\n\n\"Wlien the appropriate Assessing Authority, after making any enquiry that he may think necessary, is satisfied that the applicant is a bona fide dealer and has correctly given all the."}}, {"text": "section 5", "label": "PROVISION", "start_char": 11884, "end_char": 11893, "source": "regex", "metadata": {"statute": null}}, {"text": "K. S. Snri", "label": "LAWYER", "start_char": 12652, "end_char": 12662, "source": "ner", "metadata": {"in_sentence": "The main contention of Shri K. S. Snri, learned Counsel for the appellant is that the declaration form prescribed nuder the old Rule 26, as it stood at the material time, required the purchasing dealer to specify at the time of the sale, in the prescribed Form S.T. XXII, the number of the registration certificate.", "canonical_name": "K. S. Suri"}}, {"text": "Sec. 7", "label": "PROVISION", "start_char": 13273, "end_char": 13279, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13339, "end_char": 13343, "source": "regex", "metadata": {"statute": null}}, {"text": "Suri lias", "label": "OTHER_PERSON", "start_char": 13600, "end_char": 13609, "source": "ner", "metadata": {"in_sentence": "Shri Suri lias adopted tl1e reasoning of the Sales-Tax Tribunal in Appeal No."}}, {"text": "Sales-Tax Tribunal", "label": "COURT", "start_char": 13640, "end_char": 13658, "source": "ner", "metadata": {"in_sentence": "Shri Suri lias adopted tl1e reasoning of the Sales-Tax Tribunal in Appeal No."}}, {"text": "12-2-1968", "label": "DATE", "start_char": 13762, "end_char": 13771, "source": "ner", "metadata": {"in_sentence": "109 of 1967-68 (M/s. Darshan Soap Mills, Batala Road, Amritsar v.\n\nThe State) decided on 12-2-1968."}}, {"text": "October 10\n\n1966", "label": "DATE", "start_char": 14294, "end_char": 14310, "source": "ner", "metadata": {"in_sentence": "Taking the last point first, we are of opinion that the amendment 'Of Rule 5 by the Punjab Government Notification, dated October 10\n\n1966, did not confer any new or additional power on the registering H Authority."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14736, "end_char": 14740, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14989, "end_char": 14993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 15395, "end_char": 15399, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 15568, "end_char": 15573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 17297, "end_char": 17301, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 17404, "end_char": 17411, "source": "regex", "metadata": {"statute": null}}, {"text": "31st March 1966", "label": "DATE", "start_char": 17535, "end_char": 17550, "source": "ner", "metadata": {"in_sentence": "This being the correct position, the assessees were entitled to the deduction under s. 5(2) (a) (ii) of the Act in respect of ti:e sales made by them to the purchasing dea.ler durlng the whole of the quarter ending 31st March 1966."}}]}
{"document_id": "1977_3_91_101_EN", "year": 1977, "text": "_;,.--.\n\nSTRAW BOARD MFG. CO LTD. v.\n\nTHE WORKMEN\n\nMarch 1, 1977\n\n[V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]\n\nGratHity-Qualifying period of service and calculation of amounts-Tests for determination.\n\nJn an industrial dispute between the appellant mill and its workmen relating 1o the payment of gratuity, the Industrial Tribunal framed a gratuity scheme and gave th~ necessary guidelines for its implementation. Special leave \\Vas granted to the appellant by this Court on the limited question whether the correct principles on which gratuity should be payable had been followed in this case .or not. Since the making of th:! award, the Payment of Gratuity Act, 1972 \\vas passed, which, by s. 4(5) gave an option to the workers to choose behveen the gratnity scheme under the award and the one under the statute. The \\\\'Ork.::1 s, however, did not put in their appearance in this Court.\n\nIt was contended on behalf of the appellant that the qualifying period of 'Service for earning gratuity was ten years and for calculadng the amount of gratuity basic wages withot adding dearness allowance should be the basis as\n\nlaid down by some decisions of this Court and the tribunal was wrOng in hold- D ing 5 years as the qualifying service and basic wages and dearness allowance as the basis for calculating the amount of gratuity.\n\nHELD : There is nothing fundamentally flawsome in the 5-year period being fixed as the qualifying service. The Tribunal was realistic in fixing the period of eligible qualifying service as continuous service counted with reference to the completed years as defined in s. 2(c) of the Act.\n\n[100 C&F]\n\n( 1) Jn some cases, this Court higlilighted the view that the determination of gratuity is not based on any definite' rules and each case must depend upon the prosperity l1f the concern, the needs of the workmen and the prevailing economic conditions examined in the light of the auxiliary benefits which the workn1en may get on determination of employment. It was also held. that stability of the concern, profits made in the past, the future prospects and capacity should be the relevant circumstances which the Tribunal should take into account in\n\ngiving its award. Awards are given on circumstances peculiar to each dispute and the 'T'ribunals are, to a large extent, free from the restrictions of 1echnica1 considerations imposed on courts. In short, the approach of the Tribunal should be what may be described as its legal hunch or horse-sense. Cases like Gaziabad Engineering Co. accept .the position that while gratuity is usually related to the basic wage, a departure may be made by relating it to the consolidated wage if there be some strong evidence or exceptional circumstances justifying that course. The real reason why some cases Jike British Paints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retirement or resignation would ensure that workmen did not leave one concern for another after putting in the short minimum service qualifying for gratuity.\n\nBut current conditions must control the Tribunal's conscience in finalizing the terms of the gratuity schen1e. Colossal unemployment at all levels of workers in the country today means that a \\Vorker \\Vilt not Te2ve his employment merely because he has qualified himself for gratuity Jn an economic situation where there is a glut of labour in the market and un~ employment stares the working class in the face it is theoretical to centend that employees will hop from industry to industry unless the qualifying period for earning gratuity is raised to 10 years. [98 H; 99 D; 100 A, D, E, F.]\n\n(2) Wages will mean and include basic wages and dearness allowance and nothing else.\n\nThis corresponds to s. 2(s) of the Act. Some of the decisions refer to basic wages and others to consolidated wages as the foundation for\n\nA computation of gratuity.\n\nThese are matters of discretion and the \"feel\" of the circumstances prevalent in the industry by the Tribunal and, unless it has gone wrong in the exercise of its discretion the award should sand. In the Payment\n\nof Gratuity Act also it is not basic wages but 'gross wages inclusive of dearness 1----... allowance which had been taken as the basis. [101 B; 100 G-Hl\n\nDelhi Cloth & General Mills Co. v. Workmen & Ors. [1969] 2 SCR 307, British Paints [19691 2 SCR 523, Hydro-Engineers [1969] 1 SCR 156, Hindustan Antibiotics, [1967] 1 SCR 672, Bengal Chemical & Pharlln1aceutical Works Ltd .. [1959] Suppl. 2 SCR 136, Gaziabad Engineering Co., [1970] 2 SCR 622 ancl l'alcutta fnsurance Co. Ltd. [1967] 2 SCR 596 referred to.\n\nCIVIL APPELLATE JURISO!CTION : Civil Appeal No. 1539 of 1970.\n\n(Appeal by Special Leave from the Award dated 1/31-10-69 of C the Industrial Tribunal Allahabad in Ref. No. 20/58 'published in the\n\nU.P. Gazette dated the 10th Jan. 1970).\n\nI. N. Shroff, for the appellant.\n\nP. H. Parekh, for the respondent.\n\nThe Judgment of the Court was delivered by.\n\nKRISHNA IYER, J.-A dispute between the appellant mill (the Strawboard Manufacturing Company Ltd) a1id its workmen, regarding a scheme of gratuity, was referred to the Industrial Tribunal, way back in February 1958, and, long 19 years later, this Court is pronouncing on the validity of the award made by the Tribunal in favour of the workmen~: Small wonder the respondent workmen, after this tiring and traumfic tantalization, have not turned i.p to argue their cause, although SIIri Parekh, as amicus curiae, has filled the gap.\n\nSuch an unhaP.PY and not infrequent phenomenon as considerable delay in adjudication and implementation is destructive of industrial peace and productive of disenchantment with labour jurisprudence.\n\nNaturally, even constitutional provisions and governmental decisions about labour and concern for its welfare cease to achieve the desired goals when theiegal process limps and lingers and rights turn illusory when remedies prove elusive.\n\nThe life of rights is remedies and a jurisprudence of ready reliefs alone can inhibit the weaker numbers of our lnd asking the disturbing que5tion : 'Is Law Dead ?'. Dicey wrote long air2 :\n\n\"The saw ubi jus ibi remedium, becomes from this\n\npoint of view something much more important than a mere • ' tautological proposition.\n\nIn its bearing upon constitutional • law, it means that the Englishmen whose labors gradually ·- formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently • on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen.\" (Jurisprudence of Remedies: University of Pennsylvania Law Review, Vol. 117, Nov. 1968. p. 1, 16).\n\nIt is more than rhetoric to say that courts belong to the people.\n\n~ I\n\n'Judges occupy the public's bench of justice.\n\nThey implement the public's sense of justice'. If the Courts are the fulcrum of the justice-system, there is a strong case for the reform of Court methodology and bestowal of attention on efficient management of judicial administration.\n\nOtherwise, the courts may be so overloaded or so mismanaged that they grind to a halt and citizens' exercise of their rights discouraged or frustrated.\n\nThe vital aspects of the jurisprudence of remedies include speeding the pace of litigation 'from the cradle to the grave'.\n\nWe are reluctant to make these self-critical observation's about putting our house in order, but when the consumers of justice like workmen lose interest in the judicial process and are absent, legislative unawareness of research and development as to the needs of courts and simplification and acceleration of the judicative apparatus become matters of national concern.\n\nLaw's delays are in some measure, caused by legislative inaction in making competent, radical change in the procedural laws and sufficient_ financing and modernising of the justice system as a high priority programme.\n\nThe chequered career of tliis lis and its zigzag climb up the precipice of justice contextually deserves brief narration.\n\nThe order of reference was made early in 1958, the usual processual exercise before the Tribunal resulted in an award on May 1, 1958 where the tribunal refused the relief bearing on gratuity.\n\nThe. disappointed workers challenged the award before the High Court which set it aside in November 1963-too long a hibernation in the High Court for a labour dispute where prompt adjudication is the essence of industrial peace.\n\nAnyway, when the case came back to the tribunal, its decision took another six inscrutable years and, on October31, 1969, a fresh award was made whereunder the tribunal framed a gratuity scheme and gave the guidelines thereof.\n\nThis time the appellant mill straight came to the Supreme Court with the present appeal for which special leave was granted in a limited way, in the sense that it was confined to t)le question 'whether the correct principles on which gratuity should be payable have been followed in this case or not'. It is a fact, though unfortunate, lhf!t this labour litigation arrived in this Court in 1970 but its final chapter is being written by this judgment only in 1977.\n\nAnd it is noteworthy that the facts are brief, the legal issues small, the arguments brief and this judgment, but for general observations and traditional reference to rulings cited at the bar, could have been judiciously abbreviated .\n\nThe main battle at the bar has been over the correct principles in a scheme of gratuity for factory workers and further whether those principles have been departed from under tht award as>ailed by the appellant.\n\nWe may mention. at this stage, that •he Parliament has enacted the Payment of Gtdtuity Act, 1972, which has come into force with effect from September 16, 1972.\n\nSection 4(5) of the said Act gives an option to the workers to choose between the gratuity scheme under the award and the one under the statute. Had the workers been represented before this Court it might have been possible for us finally to close this controversy or even produce a reasonable solution by discussion and negotiation and persuade them to opt for\n\n1:\n\none or the other scheme.\n\nEarly finality, credible certainty and mutually assented solutions, are the fiuer processes of conflict-resolutioua pursuit which baffles us here because of labour's absence.\n\nAll that we can do, therefore, is to adjudicate upon the correctness or otherwise of the principles which have gone into the gratuity scheme prepared by the tribunal in the light of the rulings of this Court and the canons of industrial law.\n\nWe now proceed to itemise the grounds of attack levelled by Shri I. N. Shroff' for the appellant and assay their worth in the light of the submissions in defence of the award made by Shri P. H. Parekh appearing as amicus curiae.\n\nEven here we may place on record our appreciation of Shri Parekh's services to the Court and the fairness of Shri Shroff in making his points on behalf of the appelant.\n\nThe only dispute, which has ramified into a few issues, relates to the gratuity scheme ihe tribunal has framed.\n\nShri Parekh. is right in drawing our attention in limine to the financial insignificance, for the appellant, of the subject matter of this /is and the consequential disinclination we must display to disturb the award.\n\nHe has urged that the total annual impact on the industry by the implementation of the award is of _the order of Rs. 3,000 /- to a substan.tial part of which the management has no objection.\n\nWhat is more, the appell\" ant is prosperous enough to distribute dividends aroun<l ?0% over the years. Further, since 1972 an obligatory statutory gratuity scheme has come into force with the result that the economic C<'nsequences of this litigation, even if the appellant loses are marginal or nil.\n\nThis makes us ponder whether, in matters of less than grave moment, this conrt should, as .Part of high judicial policy to arrest the tidal flow of unsubstan.tial litigation, turn away at the portals those who invoke our jurisdiction to examine every case where some legal principle has been wrongly decided, regardless of a sense of 'summit court' perspective and the rare use of its reserve power so as to preempt a docket explosion and the injustice of delayed justice and invest the High Courts and high tribunals with final leal wisdom. The amplitude of Art. 136 is meant more for exceptional situations than to serve as hospitable basket to receive all challenges to seemingly erroneous judgments in the country.\n\nAs stated earlier, we are confronted by an industrial dispute and are called upon to apply the principles of industrial jurisorudence with its primary concern for peace among the parties. contentment of the workers, the end product being increased production informed by distributive jus.tice.\n\nLaw, especially Labour Law, is the art of economic order sustained by social justice. It aims at pra)\\Jllatic success, but is guided by value-realities.\n\nIt believes in relativity and rejects absolutes.\n\nThe recent constitutional amendment (Art. 43A) which empha\"sizes the workers' role in production as oartners in the process, read in the light of the earlier accent on workers' riohts and social justice, gives a new status and sensitivity to inrlustrial jurisprudence in our 'socialist republic'.\n\nThis social ph; Josoohv must inform interpretation and adjudication, a caveat needed because precedents become time-barred when societal ethos progresses.\n\narc not called upon to interpret an Act since, in this area of law, the Payment of Gratuity Act came in on a later date. Judge-made l;>w rules the roost.\n\nEven so, are we fattered by inflexible norms hallowed by dated decisions ? Not in this jurisdiction. 'The golden rule' 1n a rapidly changing system, 'is that there are no golden rules'. We should \\le guided by realistic judicial responses to societal problems. against the back drop of the new, radical values implied in 'social justice' to labour, the production backbone of the nation, adjusted to the environs of the particular industry and its economics and kindered circumstances.\n\nThe dynamics of labour law, rather than the bonded of old-time case-law answers questions of current justice. Cardozo had cautioned in his 'The Nature of the Judicial Process' :\n\n\"That court best serves the law which recognizes that the rules of law which grew up on a remote generation may, in the fullness of experience, by found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become .\\ested >n reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth. and in its growth found its health and life.\n\nIt is not and i• should not be stationary. Change of this charac. ter should not be left to the legislature. If judges have woefullv misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.\"\n\n(Cardozo : The Nature of the Judicial Process : Yale University Press: pp. 151-152).\n\nIndeed, we are stating no new proposition since the. profusion of decisions assiduously presented before us states, in 'sum, that each\n\ncase has to be decided on the updated justice of the fact-situations F therein and the only law that we can reasonably discern from the ruling's we have read is that there is no law but only iustice, dependent on a variety of socio-economic variables, that the tribunal's award, if his performance is not perverse in the process or the end product. must be left well alone by this Court even if some juristic failing or factual peccadillo can be discovered.\n\nA quest for error and an inclination for correction, frequently exercised by higher Courts will G do donble injury. It will take awy the necessary initiative oE the tribunal to nrnrlnce sati'sfactory results.\n\nIt will delay the finalitv of industrial adiudicafon and thereby defeat the paramount 'jluroose of early re-adiustment.\n\nJudicial decentralizati<m claims its price and it mnst be naid by ignoring errors less than orave.\n\nOnce this pers-· pective is clear, our non-interference with this award is just. Moreover, an inr111strial tribunal must act on a legal horse 'sense; rather H than on inr; suc abstractions, on rugged fairness rather than on refined Jega1; 0ms. It is shop-floor ius•ice. not five-star lovel; ness.\n\nThe weaker qualify for protective order, in the over-al! view of the matter.\n\nGratuity for workers is no longer a gift but a right.\n\nIt is a vague, humanitarian exprcssiqp of distributive justice to partners in production for long, meritorious service.\n\nWe have, therefore, to adopt a broad and generou~ approach to the problems posed before us by Shri Shroff without being mechanistically precedent-bound or finically looked into evidence.\n\nSpeaking_ geaerally, Shri Shroff focussed his fire-power firstly on the qualifying period of five years for earning gratuity as against ten years sanctified in some earlier rulings and, secondly, on the basic wage, as contrasted with the 'consolidted' wage being treated as the base for the computation of gratuity.\n\nHe did cite half-a-dozen of more cases of this court in support which, on closer scrutiny and studied in the light of other citations Shri Parekh emphasized, stand neutralized.\n\nThe Tribunal has itself referred to many rulings of this Court, noted the features of the industry in question, the hillh dividends and the low wages and reached a via media which we may regard as a prudent judicial resolution of the simple conflict.\n\nThe flavour of the social milleu, the raw realities of industrial conditions and. the locale\n\nand life-style out there, are sensed by the tribunal better than a distant court of last resort primarily specialising in declaration of law.\n\nSo we are loathe to upset the scheme unless the tribun!ll is grievously or egregiously in error.\n\nShri Shroff staked his case on case-law alone and culled passaes which upheld basic wages as basi~ and ten-year service for eligibility.\n\nEven here, we must mention that the basic wage at the relevant time (revised subsequently) was in the miserable range of Rs. 20/- per mcnsem and to calculate jlrafuity on this pitiful rate, when after 'long and meritorious service' the worker bids farewell to his labour life in the industry, is to be callous to basic justice.\n\nThe Human Today cannot be held captive by the less-than-human Yesterday in a crucial area of social justice.\n\nSo viewed, we are constrained to negative the two preliminary contentions urned bv Shri Sl1roff while agreeing with him on the smaller points of clarification sought. ·\n\nWe reproduce, at this stage, the decrcta! part of the award :\n\n\"The award, therefore, is that the employers should be required to frame a scheme of gratuity for t]Jeir workmen.\n\nThe details of the gratuity 'scheme are as under :-\n\n(a) On death of a work1nan while in\n\ncontini.:ous service or on attainment of the age of superannuation or on retiren1ent or resignation dve to continued ill health or on being incapicitated,\n\n15 days wages for each con1pleted year of service subject io a maximu111of15 n1onths.\n\n(b) On voluntary abandoment of ser: vice by a workn1an in case not fall: ing under (a) or termination of service by e1nployers.\n\nJ 5 days wages for each completed year of continous service subject to the condition that no gratuity will be payable on a total service of less than 5 years, But this con- Cition will not apply in case of resignation or discharge on the g1ounds of physical disablement or incapacity,\n\n(i) For the purposes of gratuity of a period of six months or over shall be reckoned as 'one year' while a period less than 6 months will be ignored.\n\n(ii) Gratuity shall be payable to the nominee of the workman in case of his death or to his legal heirs, if no one has been nominated by the workman in this behalf.\n\n(iii) 'Wages' shall mean and include ba'sic wages and dear food allowance but shall not include bonus.\n\n(iv) Gratuity will not be allowed to a workman in case of a serious misconduct committed by him such as insubordination, acts involving moral turpitude, etc.\n\nIn case of damage to the property of employers or financial loss, the amount to the extent of loss shall be liable to be deducted from the amount of the gratuity.\n\n(v) The basis of payment of gratuity shall be average earnings of a workman during the last three years.\" One. of the leading cases both sides referred to is the Delhi Cloth & General Mills Co .. v. Workmen & Ors.(') Jn this de_cision the court did make the point :\n\n\"That gratuity is not in its present day concept merely a gift made by the employer in his own discretion.\n\nThe workmen have in course of time acquired a right to gratuity on determination of employment provided the employer can afford, having regard to his financial conditions to pay it.\"\n\nShah, J, speaking for the Court, also emphasized what we have already adverted to : G\n\n\"We consider it right to observe that in adjudication of industrial disputes settled legal principles have little play; the awards made by industrial tribunals are often the result of ad hoc determination of diputed questions, and each determination for.ms a precedent for determination of other dispute. An attempt to search for principle from the H law built up on those precedents is a futile exercise.\n\nTo the\n\n(I) fl 969\\ 2 S.C.R. 307.\n\nCourts accustomed to apply settled principles to facts determined by the application of the judicial process, an essay into the unsurveyed expenses of the law of industrial relations with neither a compass nor a guide, but only the pillars of precedents is a disheartening experience.\n\nThe Constitution has however invested this Court with the power to sit in aP.peal over the awards of Industrial Tribunals which are, it is said, founded on the somewhat hazy background of maintenance of industrial peace, which secures the pros- perity of the industry and the improvement of the crnditions of workmen employed in the industry, \"nd in the absence of principles, precedents mav have to be adopted as guides-somewhat reluctantly to secure some reasonable degree of uniformity of harmony in the process.\"\n\nSeveral decisions which were referred to at the bar have been touched upon in the above case.\n\nAt the end of the consideration of these cases, the Court made two pregnant observations which we extract :\n\n\"We may repeat that in matters relating to the grant of gratuity and even generally in the settlement of disputes arising out of indutrial relations, there are no fixed principles, on the application of which the problems arising before the Tribunal or the Courts may be determined and often precedents of cases determined ad hoc are utilised to build up claims or to resist them.\n\nIt would in the circumstances be futile to attempt to reduce the grounds of the decisions given by the Industrial Tribunals, the Labour Appellate Tribunals and the High Courts to the dimensions of any recognised principle.\"\n\nx x x x\n\n\"It is not easy to extract any principle from these cases;\n\n111 as precedents _!hey are conflicting.\"\n\nThese cautionary signals guide us too in the instant case.\n\nIt is true that on account of the peculiar circumstances affecting the textile industry in the whole country the Court felt that the Tribunal was in error in relating gratuity to the consolidated wage instead of the basic wage.\n\nThe emphasis in the ruling is on the facts and circumstances affecting the particular industry and the promotion of industrial peace in that field.\n\nRightly, if we may say so with respect, did the Court high-liht the view that determination of gra-\n\n•tuity is bot based 011 any definite rules and each case must depend upon the prosperity of the concern, needs of the ·.vork.men and the prevailing economic conditions, examined in the light of the auxiliary benefits which the workmen may get on determination of employment.\n\nIn short, the core of the matter is the totally of the '.circumstances and the stage of evolution of industrial relations at a given time.\n\nWhat hefd good a decade ago may be given the go by years later. '\n\n' ' r I I , r - I ~·\n\nAnother leading case on the question of gratuity is the British Paints(') where, after referring to the special features of the particular industry and the other benefit schemes enjoyed by the employees, the Court referred to May & Baker whei; e basic wages were treated as the basis and British India Corporation where 'gross salary i.e. basic wages plus dearness allowance' was held to be !ht> basis.\n\nIt ay be noted that in this case the minimum qualifying service for gratuity was held to be S years except in cases where termination resulted from resignation by the employee.\n\nIn Hydro-Engineers(') this Court apparen!ly upheld the contentions now urged before us by Shri Shroff but stressed that no bard and fast rule could be laid down and each case must be decided on its own C circumstances.\n\nIn Hindustan Antibiotics('), again, this Court highlighted the relevant circumstances upon which the discretion of the Tribunal could play, viz., the stability of the concern, the profits made in the past, the futur~ prospects and capadty etc.\n\nThis Court declined to disturb the gratuity scheme in that case even though the wages which D formed the basis of the gratuity included dearness allowance.\n\nIn Bengal Chemical & Pharmaceutical Works Ltd., Calcutta('} a Bench of this Court entered the caveat which we have underscored in the earlier part of this judgment that :\n\n''a free and liberal exercise of the power under Art. 136 may materially affect the fundamental basis of such decisions, namely, quick solution to such disputes to achieve industrial peace.\n\nThough Art. 136 is couched in widest terms, it is necessary for this Court to exercise ifs discretionary jurisdiction only in cases where awards are made in violation. of the principles of natural justice, causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court and discloses such other exceptional or special circumstances which merit the consideration of this Court.n\n\nIt was also mentioned, what is not oft remembered when interfering with awards, that the Industrial Disputes Act is\n\n\"intended to be a self-contained one and it seeks to achieve social justice on the basis of collective ba1gaining, conciliation and arbitration.\n\nAwards are given on circumstances peculiar to each dispute and the tribunals are, to a large extent, free from the restrictions of technical considerations imposed on courts.\"\n\n(1) [1969] 2 S.C.R. 523.\n\n\n(3) (1967] 1 S.C.R. 672.\n\n(4) [1959] Suppl. 2. S.C.R. 136.\n\n.A This approach is what we earlier de\"scribed as the Iribunal\"s legal hunch or horse sense.\n\nEven Gqziabad Engineering Co.,(') on which Shri Shroff heavily relied, accepts the position that while gratuity is usually related to the basic wage, a departure by relating it to the consolidated wage may be made if there be some strong evidence or exceptional circumstance justifying that course.\n\nCalcutta lllsurance Co. Ltd. (') also placed accent on the practical approach in industrial adjudication and did not interfere with the qualifying service of 5 years except in the case of resignation by the employee where the qualifying period was raised to I 0 years.\n\nThis survey of the cosmos of case-Jaw can expand, but no service will be rendered by that exercise.\n\nAll that we need say is that there is nothing fundamentally fiawsome in the 5-year period being fixd as qualifying service.\n\nThe real reason why some case:s like British Pints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retirement or resignation would ensure that workmen do not leave one concern for another after putting in the short minimum service qualifying for gratuity.\n\nWe think that current conditions must control the tribunal's conscience in finalizing the terms of the gratuity scheme. Taking things as they are, in our country presently there is unemployment at the level of workers-that being the category we are conoernecl with. Colossal unemployment means that the worker will not leave his employment merely because he has qualified himself for 1, Cratuity.\n\nIn an economic situation where there is a glut of labour in the market and unemployment stares the working class in the face it is theoretical to contend that employees will hop from industry to industry unless the qualifying period for earning gratuity is raised to 10 years.\n\nThe tribunal was realistic in fixing 5 years as the period of eligibility.\n\nOur industrial realities do not provide for easy mobility of labour.\n\nWhat is more, the sense of national consciousness in this field is reflected in the Payment of Gratuity Act which fixes a period of 5 years as the qualifying period for earning gratuity.\n\nDecisions have been brought to our notice some of which refer to basic wages and others to consolidated wages as the foundation for computation of gratuity.\n\nThese are matters of discretion and the \"feel\" of the circumstances prevalent in the industry by the Tribunal and, unless it has gone haywire in the exercise of its discretion the award should stand. We see that in the Payment of Gratuity Act also, not basic wages hut 'gross wages inclusive of dearness allowance' have been taken as the basis. This, incidentally, reflects the industrial sense in the country which has been crystallised into legislation.\n\n(1) 11970] I S.C.R. 622.\n\n(2) I 1967] 2 S.C.R. 596.\n\n' ' I\n\n\\ ...\n\nAll things considered, we are disinclineJ to alter tb\" award on the two critical issues on which it was challenged.\n\nHowever, there arc certain minor clarifications which will eliminate ambiguity and, on that, both sides are agreed.\n\nWe clarify that wages will mean and include basic wages and dearness allowance and nothing else. This corresponds to Sec. 2 ( s) of the B Act. Likewise, we declare that qualifying service is continuous service (counted with reference to completed years) as defined in Sec. 2 ( c).\n\nWe hold that the award will operate as d'rected therein i.e. from the date of reference of the dispute. Both sides agree, in their statement of the case, that in clause (a) of the award the expression 'due to continued ill-health or on being incapacitated' governs only resignation although we feel on compassionate grounds it shou.Jd govern both situations. The C ambiguity must be resolved in favour of the workers. In regard to the other conflicts of construction possible, as set out in grounds 7 and 8 of the appellant's statement of case, we resolve them in favour of the workmen, abandonment of service being too recondite and the amount involved too trivial for variation by this Court.\n\nShri I. N. Shroff fairly stated that the Court may make an order regarding costs.\n\nWe direct that the appellant do pay the respondents costs which we quantify at Rs. 2000/-. Out of this sum Rs. 1000/- will be paid direct to Shri Parekh who has assisted the Court on behalf of the workers and the balance of Rs. 1000/- shall be drawn by the present President of the Respondent Union.\n\nOur parting thought is that negotiating settlements should be vigorously and systematically pursued even by tribunals since litigation, escalating from deck to deck upto this Court, defeats both, whoever wins or loses.\n\nThis must be a sobering influence on Labour and Management and agencies of confiictresolutions.\n\nThat is a legal beacon that can brighten the dark tunnel of industrial conflict and promote national production cheered by shared wealth.\n\nP.B.R.", "total_entities": 47, "entities": [{"text": "STRAW BOARD MFG. CO LTD", "label": "PETITIONER", "start_char": 9, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STRAW BOARD MFG. CO LTD", "offset_not_found": false}}, {"text": "THE WORKMEN", "label": "RESPONDENT", "start_char": 38, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "THE WORKMEN", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 67, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Payment of Gratuity Act, 1972", "label": "STATUTE", "start_char": 639, "end_char": 668, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4(5)", "label": "PROVISION", "start_char": 692, "end_char": 699, "source": "regex", "metadata": {"linked_statute_text": "the Payment of Gratuity Act, 1972", "statute": "the Payment of Gratuity Act, 1972"}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 1598, "end_char": 1605, "source": "regex", "metadata": {"linked_statute_text": "the Payment of Gratuity Act, 1972", "statute": "the Payment of Gratuity Act, 1972"}}, {"text": "Gaziabad Engineering Co.", "label": "ORG", "start_char": 2494, "end_char": 2518, "source": "ner", "metadata": {"in_sentence": "Cases like Gaziabad Engineering Co. accept .the position that while gratuity is usually related to the basic wage, a departure may be made by relating it to the consolidated wage if there be some strong evidence or exceptional circumstances justifying that course."}}, {"text": "Jike British Paints", "label": "ORG", "start_char": 2779, "end_char": 2798, "source": "ner", "metadata": {"in_sentence": "The real reason why some cases Jike British Paints required a qualifying period of 10 years was that a longer minimum period for earning gratuity in the case of voluntary retirement or resignation would ensure that workmen did not leave one concern for another after putting in the short minimum service qualifying for gratuity."}}, {"text": "s. 2(s)", "label": "PROVISION", "start_char": 3778, "end_char": 3785, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 2 SCR 307", "label": "CASE_CITATION", "start_char": 4342, "end_char": 4358, "source": "regex", "metadata": {}}, {"text": "[1969] 1 SCR 156", "label": "CASE_CITATION", "start_char": 4409, "end_char": 4425, "source": "regex", "metadata": {}}, {"text": "[1967] 1 SCR 672", "label": "CASE_CITATION", "start_char": 4450, "end_char": 4466, "source": "regex", "metadata": {}}, {"text": "[1970] 2 SCR 622", "label": "CASE_CITATION", "start_char": 4568, "end_char": 4584, "source": "regex", "metadata": {}}, {"text": "[1967] 2 SCR 596", "label": "CASE_CITATION", "start_char": 4619, "end_char": 4635, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISO!CTION", "label": "PETITIONER", "start_char": 4650, "end_char": 4678, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISO!CTION : Civil Appeal No."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 4887, "end_char": 4899, "source": "ner", "metadata": {"in_sentence": "I. N. Shroff, for the appellant.", "canonical_name": "I. N. Shroff"}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 4921, "end_char": 4933, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh, for the respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 5001, "end_char": 5013, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J.-A dispute between the appellant mill (the Strawboard Manufacturing Company Ltd) a1id its workmen, regarding a scheme of gratuity, was referred to the Industrial Tribunal, way back in February 1958, and, long 19 years later, this Court is pronouncing on the validity of the award made by the Tribunal in favour of the workmen~: Small wonder the respondent workmen, after this tiring and traumfic tantalization, have not turned i.p to argue their cause, although SIIri Parekh, as amicus curiae, has filled the gap."}}, {"text": "Parekh", "label": "OTHER_PERSON", "start_char": 5485, "end_char": 5491, "source": "ner", "metadata": {"in_sentence": "KRISHNA IYER, J.-A dispute between the appellant mill (the Strawboard Manufacturing Company Ltd) a1id its workmen, regarding a scheme of gratuity, was referred to the Industrial Tribunal, way back in February 1958, and, long 19 years later, this Court is pronouncing on the validity of the award made by the Tribunal in favour of the workmen~: Small wonder the respondent workmen, after this tiring and traumfic tantalization, have not turned i.p to argue their cause, although SIIri Parekh, as amicus curiae, has filled the gap."}}, {"text": "October31, 1969", "label": "DATE", "start_char": 8656, "end_char": 8671, "source": "ner", "metadata": {"in_sentence": "Anyway, when the case came back to the tribunal, its decision took another six inscrutable years and, on October31, 1969, a fresh award was made whereunder the tribunal framed a gratuity scheme and gave the guidelines thereof."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 8829, "end_char": 8842, "source": "ner", "metadata": {"in_sentence": "This time the appellant mill straight came to the Supreme Court with the present appeal for which special leave was granted in a limited way, in the sense that it was confined to t)le question 'whether the correct principles on which gratuity should be payable have been followed in this case or not'."}}, {"text": "Parliament has enacted the Payment of Gtdtuity Act, 1972", "label": "STATUTE", "start_char": 9735, "end_char": 9791, "source": "regex", "metadata": {}}, {"text": "September 16, 1972", "label": "DATE", "start_char": 9836, "end_char": 9854, "source": "ner", "metadata": {"in_sentence": "at this stage, that •he Parliament has enacted the Payment of Gtdtuity Act, 1972, which has come into force with effect from September 16, 1972."}}, {"text": "Section 4(5)", "label": "PROVISION", "start_char": 9857, "end_char": 9869, "source": "regex", "metadata": {"linked_statute_text": "Parliament has enacted the Payment of Gtdtuity Act, 1972", "statute": "Parliament has enacted the Payment of Gtdtuity Act, 1972"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 10734, "end_char": 10746, "source": "ner", "metadata": {"in_sentence": "We now proceed to itemise the grounds of attack levelled by Shri I. N. Shroff' for the appellant and assay their worth in the light of the submissions in defence of the award made by Shri P. H. Parekh appearing as amicus curiae.", "canonical_name": "I. N. Shroff"}}, {"text": "Shroff", "label": "OTHER_PERSON", "start_char": 11013, "end_char": 11019, "source": "ner", "metadata": {"in_sentence": "Even here we may place on record our appreciation of Shri Parekh's services to the Court and the fairness of Shri Shroff in making his points on behalf of the appelant."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 12453, "end_char": 12461, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 43A", "label": "PROVISION", "start_char": 13150, "end_char": 13158, "source": "regex", "metadata": {"statute": null}}, {"text": "Payment of Gratuity Act", "label": "STATUTE", "start_char": 13639, "end_char": 13662, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Cardozo", "label": "OTHER_PERSON", "start_char": 14319, "end_char": 14326, "source": "ner", "metadata": {"in_sentence": "Cardozo had cautioned in his 'The Nature of the Judicial Process' :\n\n\"That court best serves the law which recognizes that the rules of law which grew up on a remote generation may, in the fullness of experience, by found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become .\\ested >n reliance upon the old rule."}}, {"text": "Shah", "label": "JUDGE", "start_char": 21186, "end_char": 21190, "source": "ner", "metadata": {"in_sentence": "Shah, J, speaking for the Court, also emphasized what we have already adverted to : G\n\n\"We consider it right to observe that in adjudication of industrial disputes settled legal principles have little play; the awards made by industrial tribunals are often the result of ad hoc determination of diputed questions, and each determination for.ms a precedent for determination of other dispute."}}, {"text": "British India Corporation", "label": "ORG", "start_char": 24774, "end_char": 24799, "source": "ner", "metadata": {"in_sentence": "' ' r I I , r - I ~·\n\nAnother leading case on the question of gratuity is the British Paints(') where, after referring to the special features of the particular industry and the other benefit schemes enjoyed by the employees, the Court referred to May & Baker whei; e basic wages were treated as the basis and British India Corporation where 'gross salary i.e. basic wages plus dearness allowance' was held to be !"}}, {"text": "Hindustan Antibiotics", "label": "ORG", "start_char": 25291, "end_char": 25312, "source": "ner", "metadata": {"in_sentence": "In Hindustan Antibiotics('), again, this Court highlighted the relevant circumstances upon which the discretion of the Tribunal could play, viz.,"}}, {"text": "Bengal Chemical & Pharmaceutical Works Ltd., Calcutta", "label": "ORG", "start_char": 25693, "end_char": 25746, "source": "ner", "metadata": {"in_sentence": "In Bengal Chemical & Pharmaceutical Works Ltd., Calcutta('} a Bench of this Court entered the caveat which we have underscored in the earlier part of this judgment that :\n\n''a free and liberal exercise of the power under Art."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 25911, "end_char": 25919, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 26060, "end_char": 26068, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 26614, "end_char": 26637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1969] 2 S.C.R. 523", "label": "CASE_CITATION", "start_char": 26969, "end_char": 26988, "source": "regex", "metadata": {}}, {"text": "(1967] 1 S.C.R. 672", "label": "CASE_CITATION", "start_char": 26996, "end_char": 27015, "source": "regex", "metadata": {}}, {"text": "Gqziabad Engineering Co.", "label": "ORG", "start_char": 27151, "end_char": 27175, "source": "ner", "metadata": {"in_sentence": "Even Gqziabad Engineering Co.,(') on which Shri Shroff heavily relied, accepts the position that while gratuity is usually related to the basic wage, a departure by relating it to the consolidated wage may be made if there be some strong evidence or exceptional circumstance justifying that course."}}, {"text": "Calcutta lllsurance Co. Ltd.", "label": "ORG", "start_char": 27446, "end_char": 27474, "source": "ner", "metadata": {"in_sentence": "Calcutta lllsurance Co. Ltd. (') also placed accent on the practical approach in industrial adjudication and did not interfere with the qualifying service of 5 years except in the case of resignation by the employee where the qualifying period was raised to I 0 years."}}, {"text": "Payment of Gratuity Act", "label": "STATUTE", "start_char": 29177, "end_char": 29200, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "see that in the Payment of Gratuity Act", "label": "STATUTE", "start_char": 29642, "end_char": 29681, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1967] 2 S.C.R. 596", "label": "CASE_CITATION", "start_char": 29928, "end_char": 29946, "source": "regex", "metadata": {}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 30314, "end_char": 30320, "source": "regex", "metadata": {"linked_statute_text": "We see that in the Payment of Gratuity Act", "statute": "We see that in the Payment of Gratuity Act"}}, {"text": "Sec. 2", "label": "PROVISION", "start_char": 30465, "end_char": 30471, "source": "regex", "metadata": {"linked_statute_text": "We see that in the Payment of Gratuity Act", "statute": "We see that in the Payment of Gratuity Act"}}]}